New Books in Law

John Hudak‘s book Marijuana: A Short History (Brookings Institutions Press, 2016) is an accessible and informative dive into marijuana on a number of levels and from a variety of perspectives. Hudak unpacks and explains the historical place of marijuana in the United States, and the way that marijuana is situated within the criminal justice system, and how it is understood within our cultural vernacular and moral perspectives of what is right and wrong, legal and illegal. As marijuana now seems to be on a journey towards decriminalization or legalization in a number of states in the U.S., Hudak explores the way in which marijuana became an illegal substance, and how it is connected to the demonization of others–most specifically Mexicans, Mexican-Americans, African-Americans, and the American counter-culture of earlier decades. The history of marijuana is fascinating because it highlights the evolution of various forms of regulation in the United States; and, as marijuanas classification in some states is changing (in terms of the legal access to medical marijuana or the legalization of recreational marijuana), Hudak examines the constraints within the regulatory system that make those changes more difficult to execute. This text weaves together a variety of analytical perspectives, from political science, public policy, public administration, cultural studies, sociology, and criminal justice, in exploring marijuana. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Rwanda’s homegrown gacaca law has been widely hailed as a successful indigenous solution to the unprecedented problem of the country’s 1994 genocide. In his book Inside Rwanda’s Gacaca Courts: Seeking Justice After Genocide (University of Wisconsin Press, 2016), Bert Ingelaere complicates this received wisdom by focusing on the way the post-genocide gacaca trials unfolded, rather than on their lofty goals, as framed by the public relations arm of the post-genocide Rwandan Patriotic Front (RPF) government and other interested parties, both internal and external to Rwanda. The Kinyarwandan word gacaca, derived from the word umucaca, originally referred to a plant that was so soft to sit on that people preferred to gather on it during precolonial times to adjudicate disputes and crimes, but most importantly, to restore social order and harmony. During the colonial period, the jurisdiction and prevalence of gacaca was greatly restricted. Its re-emergence as a viable means of transitional justice in Rwanda following the genocide was a response to the volume of the associated crimes. Western-style court systems were simply unequal to the task of dealing with the 1,958,634 cases of alleged participation in the genocide. The basis of this concise treatment of the gacaca court system and the transitional justice it sought to dispense between 2005 and 2012, is Ingelaere’s mixed methods research in Rwanda, which included extended field research, as well as proxy trial observation by his Rwandan collaborators. The books eight chapters provide an overview of the basic operational characteristics of gacaca and consider how we should qualify the outcomes of this ambitious process. Mireille Djenno is the African Studies Librarian at Indiana University. She can be reached at mdjenno@indiana.edu   Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

James Q. Whitman, Ford Foundation Professor of Comparative and Foreign Law at Yale Law School, began researching the book that became Hitler’s American Model: The United States and the Making of Nazi Race Law (Princeton University Press, 2017) by wondering whether Jim Crow laws in the U.S. had any impact on the development of the Nuremberg Laws. Some scholars have denied any influence. Professor Whitman came to a very different conclusion, and what he learned deserves to be much more widely appreciated than it is. For the United States was the global pioneer of explicitly racist law–and not just, by any means, in the Jim Crow South. Strikingly, American law was most helpful to the most radical Nazi jurists. In the early years of the Third Reich, 1933 to 1936, conservative nationalist lawyers in Germany debated with Nazi radicals about how to create a body of anti-Semitic law, but one consonant with German legal traditions, which emphasized strict adherence to carefully-articulated concepts. The radicals found their model in U.S. citizenship and anti-miscegenation law, and in a legal culture that, from their point of view, was refreshingly open to innovation. Yet even the most radical Nazi jurists found the notorious one-drop rule, and the extreme punishments some U.S. states meted out for entering into racially-mixed marriages, too harsh and inhumane. Professor Whitman’s unsettling, learned, and deeply-engaging book deserves a large audience. Monica Black is Associate Professor and Lindsay Young Professor of History at the University of Tennessee, Knoxville. She teaches courses in modern European and German history. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

The ‘ideological odd couple’ of Robert George and Cornel West jointly authored a statement defending free speech on campus and elsewhere. Find out why. Robert George is the McCormick Professor of Jurisprudence and Professor of Politics at Princeton University, and the founding director of Princeton’s James Madison Program in American Ideals and Institutions. His research focuses on issues in ethics, political philosophy, and philosophy of law.The "Why We Argue" podcast is produced by the Humanities Institute at the University of Connecticut as part of the Humility and Conviction in Public Life project. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Brandon Kendhammer takes a fresh approach to the juxtaposition of Islam and democracy in his latest book, Muslims Talking Politics: Framing Islam, Democracy and Law in Northern Nigeria (University of Chicago Press, 2016). Rather than employing a top-down approach to understanding Islam’s compatibility with democracy, Kendhammer chose to speak with blue-collar, working-class Muslims in cities across Northern Nigeria. Through this approach, Kendhammer exposes the pragmatic views of ordinary citizens more concerned with economic stability than jihadist rhetoric. As the political situation gets more violent and the idea of democracy more remote in Nigeria, Kenhammer offers a viewpoint of deep understanding for the complex situation. Based upon hundreds of conversations with ordinary citizens, he sketches a picture of how Islam and democracy can, and often is, reconciled in the neighborhoods and marketplaces of urban Nigeria’s centers, where Christians and Muslims live side-by-side. It is in the daily political and social negotiations that the way forward can be seen. However, with the increasingly violent acts of Boko Haram, it seems that the ordinary voices are being lost to unwavering religious rhetoric. While this books only tackles Northern Nigeria, the themes and lessons can be extended into the larger Muslim world grappling with the possibility of fitting Islamic values into a democratic state. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Seth Barrett Tillman has written “Ex Parte Merryman: Myth, History and Scholarship,” an article about the famous case that is popularly thought to demonstrate a conflict between the President and the federal courts during the American Civil War. Tillman’s article is an effort to revise the standard historical understanding of the case called Ex Parte Merryman. In the spring of 1861, just as the hostilities had begun in the Civil War, famously issued an order to the U.S. Army granting army officials discretion to suspend the writ of habeas corpus if resistance or treasonous activity were encountered in Union territory. That spring, as soldiers poured into the Washington, D.C. area through Maryland, the Army was confronted with popular protests and violence by civilians. One suspect was John Merryman, a young man from a prominent Maryland family. Merryman hired lawyers to seek his release via the traditional method of asking the federal courts for an order to release Merryman pending his trial. However, Merryman was not initially released and was confined in Ft. McHenry, a military base near the port of Baltimore. The traditional account of the case portrays Supreme Court Chief Justice Roger Taney as heroically seeking to vindicate the rights of a civilian prisoner wrongly held by the military and Lincoln as defying an order to comply with the Constitution. In this podcast Professor Tillman, a lecturer in the Department of Law at Maynooth University in County Kildare, Ireland, discusses his arguments that the traditional account of the Merryman case is built upon multiple myths. If Tillman’s view of the case is correct, it holds the potential for overturning our understanding of this important period in constitutional history and civil-military relations. Ian J. Drake is an Associate Professor of Political Science and Law at Montclair State University. His scholarly interests include American legal and constitutional history and political theory. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

This week’s podcast is a fraud or at least about a fraud. Edward J. Balleisen has written Fraud: An American History from Barnum to Madoff (Princeton University Press, 2017). Balleisen is associate professor of history and public policy and vice provost of Interdisciplinary Studies at Duke University. Why is fraud committed so frequently in the United States? What about our political and legal institutions has created such an inviting environment for tricksters? And, what has government done to address it? In Fraud, Balleisen surveys centuries of American political, legal, and business history. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Policing tactics have recently been the subject of lively political debates and the target of protest groups like the Black Lives Matter movement. Police reform is not new, of course. The 1950s and 1960s, in fact, saw one of the most active periods of change surrounding standard policing procedures and a moment of political reexamination of the role of police in a democracy. Christopher Lowen Agee, Associate Professor of History at the University of Colorado Denver, examines these changes in San Francisco in his recent book. The Streets of San Francisco: Policing and the Creation of a Cosmopolitan Liberal Politics, 1950-1972 (University of Chicago Press, 2014) takes on a city where police notoriously clashed with leftist activists, but also a city run by liberals. The Streets of San Francisco examines the causes, consequences, and limits of reform from street-level interactions between police and residents to policing politics in city hall. In this episode of New Books in History, Agee discusses his new book. He tells listeners about reform in the San Francisco Police Department in the 1950s and 1960s. He talks about some of the unusual alliances formed among reformers and a few of the several controversies that his book examines, explaining to listeners how those controversies changed police procedures. He discusses the role of police discretion and force, of activists responding to police tactics, and also the limits of reform, particularly those surrounding race. The legacies of these reforms continue to influence policing today. Finally, Agee talks about conducting oral histories for this book and more generally about researching policing during the era. Christine Lamberson is an Assistant Professor of History at Angelo State University. Her research and teaching focuses on 20th century U.S. political and cultural history. She’s currently working on a book manuscript about the role of violence in shaping U.S. political culture in the 1960s and 1970s. She can be reached at clamberson@angelo.edu. To download this interview file directly, right click here and select “Save Link (or ‘Target’) As…” Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

In his recent monograph, Buddhism, Politics and the Limits of Law: The Pyrrhic Constitutionalism of Sri Lanka (Cambridge University Press, 2016), Benjamin Schonthal examines the relationship between constitutional law and religious conflict in Sri Lanka during the twentieth and twenty-first centuries. Situating his study alongside broader conversations in the field of constitutional law and specifically debates about law’s effects on religion, Schonthal challenges the widely-held idea that constitutional law, properly administered, is a useful tool for reducing conflict between and within religious communities. Drawing on unpublished and previously unexamined archival materials written in Tamil, Sinhalese, and English, Schonthal argues that in the case of Sri Lanka constitutional law has actually hardened pre-existing religious conflicts and encouraged religious actors to use the law and courts to frame a variety of legal fights in explicitly religious terms. The pyrrhic constitutionalism in the subtitle of the book is the term that Schonthal has coined to describe how, in this case, the practice of constitutional law actually exacerbates the very problems it was designed to resolve. In the first half of the book, Schonthal details the fascinating history of two of Sri Lankas most important constitutions–an initial one in 1948, and a revised version ratified in 1972–focusing specifically on the section that addresses Buddhism and religion. Many familiar with the post-independence history of Sri Lanka might interpret this section as but a product of Buddhist chauvinism and Sinhala nationalism. However, by looking at an impressive number of drafts and archival materials, Schonthal reveals that the process of drafting this religious clause was in fact a messy back-and-forth between several competing parties, including those who wanted the government to completely remove itself from religious affairs, those who wanted the government to proactively protect religious rights, and those who hoped the state would grant Buddhism a special, protected status in post-colonial Sri Lanka. He further shows that even among those who wanted Buddhism to enjoy special protection there was much disagreement about how the government should execute such protection, and to what degree the government should assume responsibilities traditionally allocated to the saṅghas elders or sometimes to the king. The second half of the book provides case studies that detail precisely how it is that constitutional law exacerbates extant conflicts within and between religious groups. After providing a number of examples of the way in which the Buddhism and religion clause created an incentive for Buddhist groups to use the courts as a space for publicly airing their grievances, Schonthal then moves on to the case of a monk who applied for a driving license but, after a long legal process, was eventually denied. Scholars of Buddhism will find this case fascinating regardless of their area or period of expertise, for this highly contentious case, which captivated the Sri Lankan media and public, gets to the heart of a perennial issue within Buddhist societies, namely the degree to which secular rulers should be involved in enforcing Buddhist monastic rules. In the book’s penultimate chapter, Schonthal looks at Buddhist anxiety over religious conversion–specifically cases of Buddhists converting to Christianity–and again argues that constitutional law has inadvertently intensified this controversy. In the interview we barely scratch the surface of the book, and listeners interested in following Schonthal’s arguments in greater detail and reading the case studies, Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

The idea that a political order derives its authority, legitimacy, and justification from some kind of initial agreement or contract, whether hypothetical or tacit, has been a mainstay of political philosophy, at least since Hobbes. Today, the leading approach to theorizing justice–John Rawls’ conception of “justice as fairness”– employs a contract doctrine, albeit of a somewhat modified kind. There, too, the idea is that an initial agreement, struck under special conditions of fairness, settles the principles of justice that will govern a society. The fundamental thought driving social contract theories is undeniably intuitive: What else could justify social rules and principles but the agreement of those who are to live under them? But, of course, there are fairly obvious problems with the very idea of a hypothetical prosocial fair agreement that results in principles and rules to govern actual societies. In Social Contract Theory for a Diverse World: Beyond Tolerance (Routledge, 2017), Ryan Muldoon (SUNY Buffalo) launches an original kind of criticism of social contract theory, both in its classical and current formulations. According to Muldoon, extant social contract theories do not take sufficient account of diversity. Muldoon then proposes a revised version of social contract theory, and also a reorientation in political philosophy itself. In Muldoon’s hands, social contract theory is not aimed primarily at the production and justification of principles of justice; rather, the social contract is a tool of discovery in an ongoing social experiment. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law