New Books in Law

The legal theory of constitutional originalism has attracted increasing attention in recent years as the US Supreme Court has tilted with the weight of justices who self-describe as originalists. In Against Constitutional Originalism: A Historical Critique (Yale UP, 2024), Jonathan Gienapp examines the theory and describes how it falls short of achieving the interpretive authority that it claims. Gienapp asserts that we need to reconstruct 18th century legal arguments as they were originally understood before judging them, while originalists reject historical understanding in favor of a more pliable textualist approach that allows them to impose their modern legal perspectives onto the past. This "have your cake and eat it too" methodology allows originalists to claim the authority of the Founders while simultaneously discounting anything that those same Founders may have said, done, or understood that doesn't appear among the approximately 7500 words of the Constitution itself.  This book speaks directly to originalists with a challenge to make a fundamental choice between recognizing how our modern constitutional practices distort the original constitution and embrace them for the modern fiction that they are, or recover the original Constitution that the Founders actually knew. Author recommended reading:  The Interbellum Consitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale UP, 2024) by Alison L. LaCroixRelated resources:  The Structure of Scientific Revolutions by Thomas S. Kuhn Edwin Meese speech to the American Bar Association in 1985 Constitutional Faith by Sanford Levinson New Books Network interview with Jonathan Gienapp, when Derek Litvak spoke with him in 2019 about The Second Creation: Fixing the American Constitution in the Founding Era (Harvard UP 2018). Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Scholars often narrate the legal cases confirming LGBTQ+ rights as a huge success story. While it took 100 years to confirm the rights of Black Americans, it took far less time for courts to recognize marriage and adoption rights or workplace discrimination protections for queer people.The legal and political success of LGBTQ+ advocates often depended upon presenting sexual and gender identities as innate – or “immutable” to fit legal categories. Conservatives who oppose LGBTQ+ equality often argue that sexual and gender identity is something that can be taught. They use the offensive language of “grooming” and contagious “gender ideology” that corrupts susceptible children.In Born This Way: Science, Citizenship, and Inequality in the American LGBTQ+ Movement (U Chicago Press, 2023), Dr. Joanna Wuest unpacks how a biologically based understanding of gender and sexuality– based on arguments from the “natural sciences and mental health professions” – became central to American LGBTQ+ advocacy. Her book is both a “celebratory and cautionary” story about the costs of relying on science to win impressive victories for queer rights. The book interrogates the “LGBTQ+ rights movement, the scientific study of human difference, and the biopolitical character of citizenship that formed at the nexus of the two.” As LGBTQ+ advocates brought “science to bear on civil rights struggles,” they transformed American politics and the epistemology of identity politics more broadly.” Dr. Joanna Wuest is an incoming Assistant Professor of Women's, Gender, and Sexuality Studies at Stony Brook University and a sociolegal scholar specializing in sexual and gender minority rights, health, and political economy. Her book, Born This Way: Science, Citizenship, and Inequality in the American LGBTQ+ Movement, received an Honorable Mention for the Society for Social Studies of Science's 2024 Rachel Carson Prize and was featured on a recent episode of Radiolab.During the podcast, we mentioned:Joanna’s article with Dr. Briana S. Last, “Agents of scientific uncertainty: Conflicts over evidence and expertise in gender-affirming care bans for minors” in Social Science & Medicine. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

In this riveting discussion, Riki Ott, an Alaskan fisher who played a key role in securing over $5 billion in damages from Exxon, and fellow fisherman Linden O’Toole delve into the ongoing legal battle post-Exxon Valdez spill. They explore the intersection of corporate funding and environmental justice, revealing how Exxon’s resources tilt legal narratives and jury decisions. Personal stories of struggle turn to triumph as they recount emotional courtroom moments, bridging theory and real-life consequences of corporate negligence. Their insights shed light on the complex legacy of this environmental disaster.

In 2003, in a ruling that bordered on poetic, Supreme Court Justice Anthony Kennedy wrote in Lawrence v. Texas that sexual behavior between consenting adults was protected under the constitutional right to privacy. This was a landmark case in the course of LGBTQ+ rights in the Untied States, laying the groundwork for cases like 2015's Obergefell v. Hodges. Yet, this case did not emerge out of nowhere. In Before Lawrence v. Texas: The Making of a Queer Social Movement (U Texas Press, 2023), University of North Texas history professor Wesley Phelps argues that behind each successful court case stands a litany of failures, challenges, and individual human stories, each of which laid the groundwork for these landmark successes. By tracking the long history of queer activism in Texas during the 1960s, 70s, and 80s, Phelps shows how the long road toward greater LGBTQ+ civil rights was paved with hard work by hundreds of activists, lawyers, and allies. No movement exists in a vacuum, and Before Lawrence v. Texas provides a roadmap showing how historical change really occurs.  Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Since the mid-nineteenth century, public officials, reformers, journalists, and other elites have referred to “the labour question.” The labour question was rooted in the system of wage labour that spread throughout much of Europe and its colonies and produced contending classes as industrialization unfolded. Answers to the Labour Question explores how the liberal state responded to workers’ demands that employers recognize trade unions as their legitimate representatives in their struggle for compensation and control over the workplace.In Answers to the Labour Question: Industrial Relations and the State in the Anglophone World, 1880–1945 (University of Toronto Press, 2024), Dr. Gary Mucciaroni examines five Anglophone nations – Australia, Canada, Great Britain, New Zealand, and the United States – whose differences are often overlooked in the literature on political economy, which lumps them together as liberal, “market-led” economies. Despite their many shared characteristics and common historical origins, these nations’ responses to the labour question diverged dramatically. Dr. Mucciaroni identifies the factors that explain why these nations developed such different industrial relations regimes and how the paths each nation took to the adoption of its regime reflected a different logic of institutional change. Drawing on newspaper accounts, parliamentary debates, and personal memoirs, among other sources, Answers to the Labour Question aims to understand the variety of state responses to industrial unrest and institutional change beyond the domain of industrial relations.This interview was conducted by Dr. Miranda Melcher whose new book focuses on post-conflict military integration, understanding treaty negotiation and implementation in civil war contexts, with qualitative analysis of the Angolan and Mozambican civil wars. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Business and Human Rights Law is a rapidly growing area of law, which has dramatically transformed many parts of international law. In this new volume in the Elements series, Robert McCorquodale explores how the responsibility for human rights abuses has transitioned from a purely state obligation to also being the responsibility of businesses. Business responsibility for human rights impacts have become subject both to legislation and to court decisions whenever their activities lead to human rights abuses anywhere in the world.Business and Human Rights (Oxford UP, 2024) shows the importance of the UN Guiding Principles on Business and Human Rights in these developments, and examines their influence on international, regional, and national law. It also analyses the changes on state obligations to protect human rights, on the corporate responsibility for human rights abuses, and on effective access to remedies for those adversely affected by business activities. Each of these shifts has consequences on core tenets of international law, such as sovereignty and jurisdiction, and has implications for crafting new international law in areas such as climate change and technology.Robert is a member of the United Nations Working Group on Business and Human Rights, and brings his decades of experience in scholarship and legal practice in business and human rights law, as well as his extensive engagement with businesses, governments, civil society, and international organisations, to bear on his understanding and analysis of this increasingly important field.Alex Batesmith is a Lecturer in Legal Profession in the School of Law at the University of Leeds, and a former barrister and UN war crimes prosecutor, with teaching and research interests in international criminal law, cause lawyering and the legal profession, and law and emotion. His University of Leeds profile page can be found here. Twitter: @batesmith. LinkedInHis recent publications include: “Cambodia and the progressivist ‘imaginary’: The limitations of international(ised) criminal tribunals as mechanisms for implementing human rights” in Louisa Ashley and Nicolette Butler (eds), The Incoherence of Human Rights in International Law: Absence, Emergence and Limitations (Routledge, 2024 ISBN13: 978-1-032638-03-4) “‘Poetic Justice Products’: International Justice, Victim Counter-Aesthetics, and the Spectre of the Show Trial” in Christine Schwöbel-Patel and Rob Knox (eds) Aesthetics and Counter-Aesthetics of International Justice (Counterpress, 2024 ISBN 978-1-910761-17-5) "Lawyers who want to make the world a better place – Scheingold and Sarat’s Something to Believe In: Politics, Professionalism, and Cause Lawyering" in D. Newman (ed.) Leading Works on the Legal Profession (Routledge, July 2023), ISBN 978-1-032182-80-3) “International Prosecutors as Cause Lawyers" (2021) Journal of International Criminal Justice 19(4) 803-830 (ISSN 1478-1387) Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

How did ideas of masculinity shape the British legal profession and the wider expectations of the white-collar professional? Brotherhood of Barristers: A Cultural History of the British Legal Profession, 1840–1940 (Cambridge University Press, 2024) by Dr. Ren Pepitone examines the cultural history of the Inns of Court – four legal societies whose rituals of symbolic brotherhood took place in their supposedly ancient halls. These societies invented traditions to create a sense of belonging among members – or, conversely, to marginalise those who did not fit the profession's ideals.Dr. Pepitone examines the legal profession's efforts to maintain an exclusive, masculine culture in the face of sweeping social changes across the nineteenth and twentieth centuries. Utilising established sources such as institutional records alongside diaries, guidebooks, and newspapers, this book looks afresh at the gendered operations of Victorian professional life. Brotherhood of Barristers incorporates a diverse array of historical actors, from the bar's most high-flying to struggling law students, disbarred barristers, political radicals, and women's rights campaigners.This interview was conducted by Dr. Miranda Melcher whose new book focuses on post-conflict military integration, understanding treaty negotiation and implementation in civil war contexts, with qualitative analysis of the Angolan and Mozambican civil wars. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

The dramatic inside story of the most important case in the history of sovereign debt law Unlike individuals or corporations that become insolvent, nations do not have access to bankruptcy protection from their creditors. When a country defaults on its debt, the international financial system is ill equipped to manage the crisis. Decisions by key individuals—from national leaders to those at the International Monetary Fund, from holdout creditors to judges—determine the fate of an entire national economy. A prime example is Argentina’s 2001 default on $100 billion in bonds, which stands out for its messy outcomes and outsized impact on sovereign debt markets, sovereign debt law, and IMF policy. Default: The Landmark Court Battle over Argentina's $100 Billion Debt Restructuring (Georgetown UP, 2024) is the riveting story of Argentina’s sovereign debt drama, which reveals the obscure inner workings of sovereign debt restructuring. This detailed case study describes the intense fight over the role of the IMF in Argentina’s 2005 debt restructuring and the ensuing bitter decade of litigation with holdout creditors, demonstrating that outcomes for sovereign debt are determined by a complex interplay between financial markets, governments, the IMF, the press, and the courts. This cautionary tale lays bare the institutional, political, and legal pressures that come into play when a country cannot repay its debts. It offers a deeper understanding of how global financial capitalism functions for those who work in or study debt markets, international finance, international relations, and international law.Gregory Makoff, PhD, is a senior fellow at the Harvard Kennedy School and a senior fellow at the Centre for International Governance Innovation and an expert on sovereign debt management. A former banker specializing in debt advice, liability management, and derivatives, he has also advised the US Department of the Treasury.Caleb Zakarin is editor at the New Books Network. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Maria Dimova-Cookson's new book Rethinking Positive and Negative Liberty (Routledge, 2019) offers an analysis of the distinction between positive and negative freedom building on the work of Constant, Green and Berlin. The author proposes a new reading of this distinction for the twenty-first century. The author defends the idea that freedom is a dynamic interaction between two inseparable, yet sometimes fundamentally, opposed positive and negative concepts – the yin and yang of freedom. Positive freedom is achieved when one succeeds in doing what is right, while negative freedom is achieved when one is able to advance one’s wellbeing. In an environment of culture wars, resurging populism and challenge to progressive liberal values, theorizing freedom in negative and positive terms can help us better understand the political dilemmas we face and point the way forward.Maria Dimova-Cookson is Associate Professor in Politics at the School of Government and International Affairs, Durham University, UK.Yorgos Giannakopoulos (@giannako) is a currently a Junior Research Fellow in Durham University, UK. He is a historian of Modern Britain and Europe. His published research recovers the regional impact of British Intellectuals in Eastern Europe in the age of nationalism and internationalism. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

In Litigating the Environment: Process and Procedure Before International Courts and Tribunals (Edward Elgar, 2023), Dr Justine Bendel scrutinises how international courts and tribunals may respond procedurally to an ever-growing list of environmental disputes. In a time of environmental crisis, she lays crucial groundwork for strengthening the application of international environmental law, a topic of increasing relevance for global civil society.Putting into perspective the practices of various international courts and tribunals, Dr Bendel works within the constraints of the existing judicial framework to sharpen international environmental justice and governance. She provides judges and litigators with tools that they can use when confronted with environmental disputes, to extract the best practices in the interest of improving environmental litigation for each phase of a judicial procedure.In this podcast, Dr Bendel discusses the complexity of multiple legal, regulatory and guidance frameworks insofar as international environmental law is concerned. She explains how it is highly likely that the subject matter of an environmental dispute will cover common areas or resources that affect global or multilateral interests, which inevitably adds a political dimension to any dispute resolution when it comes to areas that transcend national jurisdictions. Dr Bendel explores how typically bilateral proceedings under international law might be expanded to accommodate the interests of other states – and non-state actors such as international non-governmental organisations – through creatively and flexibly adapting procedures that already exist before international courts and tribunals, including dispute resolution and non-compliance procedures. Now is the time, she says, for international courts and tribunals to be used to resolve environmental disputes and to make authoritative legal determinations on protecting the planet and its precious resources.Alex Batesmith is a Lecturer in Legal Profession at the School of Law, University of Leeds, UK. His research focuses on lawyers, their professional self-identity and their motivations, and how these shape the institutions and the discipline in which they work. He has a particular interest in, and practitioner experience of, international criminal law and transitional justice. Twitter: @batesmith Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law