New Books in Law

Professor Robert P. Burns of Northwestern University School of Law offers an insightful critique of the modern American criminal justice system in his new work Kafka’s Law: ‘The Trial’ and American Criminal Justice (University of Chicago Press 2014). This interview explores the characteristics of Kafka’s “Law” and exposes where and how these characteristics exist within the American criminal justice system. Burns leads us through the absurd regime The Trial‘s protagonist must navigate after he finds himself accused of an unknown crime. Kafka’s dystopian law is unknowable, ubiquitous, overly bureaucratic and yet overly informal. In the story’s world the law functions like God and guilt is inevitable. These legal characteristics may appear to be part of an absurd dystopian fantasy world derived from the same wild imagination that produced a story in which a man metamorphoses into a bug. However, we learn in the second half of the interview that the dystopian themes in The Trial capture a present-day reality for many who are accused of crimes in America. Burns’s work exposing Kafkaesque aspects of our legal system and his search to find the most effective means of remedying these situations is vastly important to the societal goal of narrowing the gap between justice and law. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

It is generally accepted that lying is morally prohibited. But theorists divide over the nature of lying’s wrongness, and thus there is disagreement over when the prohibition might be outweighed by competing moral norms.There is also widespread agreement over the idea that promises made under conditions of coercion or duress lack the moral force to create obligations. Finally, although free speech is widely seen as a primary value and right, there is an ongoing debate over the kind of good that free speech is. In Speech Matters: On Lying, Morality, and the Law (Princeton University Press, 2014), Seana Shiffrin ties these issues together, advancing a powerful argument regarding the central role that sincerity and truthfulness play in our individual and collective moral lives. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

This year we celebrate the fiftieth anniversary of the Voting Rights Act, a legal revolution with far-reaching cultural, political, and economic import. But as J. Douglas Smith argues in On Democracy’s Doorstep: The Inside Story of How the Supreme Court Brought “One Person, One Vote” to the United States (Hill and Wang, 2014),the early 1960s witnessed a comparable sea change in voting law that deserves far more attention. Indeed, when journalists asked Earl Warren what he regarded as the Supreme Court’s most important accomplishment under his tenure, the Chief Justice — who oversaw a series of landmark cases, from Brown to Miranda –– did not hesitate to answer: Baker v. Carr and Reynolds v. Sims. Few Americans today could identify and explain what these rulings did. But as Smith explains, they represented a dramatic break with a long-reigning electoral system that now feels almost unimaginable. America is exceptional among modern democracies for elevating the idea of unequal representation to a theory of”checks and balances;” the Senate being the most obvious example (California, with more people than the twenty-one least-populous states combined, has as tiny a fraction of the power in Congress). Yet the situation was far worse before the Court’s forgotten revolution, with state legislatures across the country effectively disfranchising voters on a mass scale. Los Angeles County, with more than 6 million residents in 1960, had just one state senator. Three nearby counties, with less than 15,000 voters, each had the same. Many have argued that these facts have been inconsequential to U.S. political history, a very counterintuitive notion if so. But the early twentieth century politicians who relied on the inflation of rural and small-town districts — some of whom numbered among the most powerful arbiters of legislation and debate in Washington — certainly did not share this view. In reaction to the Court’s decisions, Everett Dirksen, the Republican Minority Leader in the legendary 89th Congress, hired the consulting firm Whitaker and Baxter, widely thought to have pioneered modern campaigning, to repeal or roll back the rulings. Dozens of states lined up, with enormous funding from the nation’s biggest corporations. The group even considered a Constitutional Convention, what would have been the first since 1789. Those efforts failed. But in the wake of this half-realized democratization, legislatures underwent dramatic political change. Notably, they also turned to gerrymandering and increasing reliance on the filibuster. Dubbed by the Washington Post one of the notable works of the year, Smith’s book is well worth your read. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Commercial interests are often understood as impinging upon the ethical norms of medicine. In his new book, Medical Monopoly: Intellectual Property Rights and the Origins of the Modern Pharmaceutical Industry (University of Chicago Press, 2013), Joe Gabriel shows how the modernization of American medicine was bound up in the ownership, manufacture, and marketing of drugs. Gabriel unearths the early history of intellectual property concerns as they entered the domain of medical practice itself. Through his careful marshaling of evidence, he takes readers back to a time when the norms and legal structures of commercial capitalism in the U.S. were just as much at issue as those of the professionalization of medicine. This fascinating book serves as a pointed reminder that the sources of therapeutic rationale are just as much tied to the production and regulation of therapies as the collective decision-making on ethical practice. Along with my previous interview with Jeremy Greene, this discussion will hopefully make accessible a broad perspective on the development of medicine in the 20th century by focusing on its ties to industry. Medical Monopoly charts the history of property rights over medicines at the dawn of the 19th century through World War I. The important broader transition here is that while before the Civil War–at least in medicine–patents were seen as tantamount to granting problematic monopoly, by the end of the 19th century they were understood as the best available regulatory mechanism for preventing more problematic imitation. Whereas patent medicines had previously been linked to quackery, the emergence and rapid expansion of the “ethical” pharmaceutical industry after the Civil War was due to its adherents advocating for more effective regulation of commerce within medicine. Rather than reverting to secrecy, firms began to circulate and publish information on new remedies and the results of studies to physicians. As the explosion of new medicines remained at pace with the boom of consumer goods in the late 19th century, patenting and corporate investment in monopolistic practices became understood as a mechanism to advance the public good. The expansion of laboratory science and norms of chemical manufacturing in the 20th century only bolstered this union further.Medical Monopoly is a fascinating and important read that people interested in medical policy should pay attention to. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Emilie Cloatre‘s award-winning book, Pills for the Poorest:An Exploration of TRIPS and Access to Medication in Sub-Saharan Africa (Palgrave, 2013), locates the effects–and ineffectualness–of a landmark international agreement for healthcare: the World Trade Organization’s “Trade-related Aspects of Intellectual Property Rights.” Cloatre takes seriously the idea of TRIPS as a technology in Bruno Latour’s meaning of the word–as a material object that anticipates effects in specific settings. Cloatre follows the text from its consolidation in European meeting halls to its use in the former French and British colonies of Ghana and Djibouti. Pills for the Poorest is a significant ethnography of law and healthcare in Africa that shows precisely how this paper tool begat new buildings, relationships, experts, and, indeed, pills, but only in particular places, among certain people, and for particular kinds of pharmaceuticals. Cloatre is a broadly trained scholar and talented researcher who shows the power of Actor Network Theory as an analytic device, and yet does so with a spirit of critique in the best sense: that is, as an act of sympathetic, yet persistent, questioning. As a text itself, the book has potential to reshape the thinking of readers from a wide range of fields, from law, science studies, healthcare policy, and beyond. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Please listen to the fascinating conversation I had with Susan Byrne, Associate Professor of Spanish and Director of Undergraduate Studies for Spanish at Yale University, about her new work, Law and History in Cervantes’ Don Quixote (University of Toronto Press, 2013). Byrne leads us through a close reading of Cervantes’ most famous work, revealing an overwhelming amount of legal details, all of which tie into early modern Spanish debates. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Jan Lemnitzer‘s new book Power, Law and the End of Privateering (Palgrave, 2014) offers an exciting new take on the relationship between law and power, exposing the delicate balance between great powers and small states that is necessary to create and enforce norms across the globe. The 1856 Declaration of Paris marks the precise moment when international law became universal, and is the template for creating new norms until today. Moreover, the treaty was an aggressive and successful British move to end privateering forever – then the United States’ main weapon in case of war with Britain. Based on previously untapped archival sources, Jan Lemnitzer shows why Britain granted generous neutral rights in the Crimean War, how the Europeans forced the United States to respect international law during the American Civil War, and why Bismarck threatened violent redemption during the Franco-German War of 1870/71. The powerful conclusion exposes the 19th century roots of our present international system, and why it is as fragile as before the First World War. A sample chapter of the book can be found on the publishers website here. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

The US Census has been an important American institution for over 220 years. Since 1790, the US population has been counted and compiled, important figures when tabulating representation and electoral votes. The Census has also captured the racial make-up of the US and has become a powerful public policy tool with both data and clout, affecting a range of policies from segregation to affirmative action. In What Is Your Race?: The Census and Our Flawed Efforts to Classify Americans (Princeton University Press 2013), Dr. Kenneth Prewitt provides a broad historical and political overview of the racial counting component of the Census, from its inception to its future. Prewitt, Carnegie Professor of Public Affairs at Columbia University, was formerly the Director the US Census Bureau, and his first-hand experience strengthens the narrative throughout the book. Prewitt’s book follows the historical ebbs and flows of the Census and race politics in the US, which are unequivocally linked. From the early era of counting the slave population, to later integrating the new immigrant whites–such as Southern European Catholics and East European Jews–with the larger White Anglo-Saxon Protestant majority, and calumniating with race identity politics reflected in the Census discourse today, What Is Your Race? is a fascinating and thorough account of an American institution that has had a powerful influence on policy and society. Specifically, the racial categories, called statistical races in the book, used in the Census have been etched into the American psyche, and the results have sometimes been quite devises. Why should the Census count Hispanics in their own category and not Middle Eastern Americans? Prewitt faced these kinds of tough questions while running the Census and now grapples with them in this book. His final recommendation to ease tensions created from the simplistic statistical race measurement currently used by the Census is to incrementally move away form these categories and to move towards counting national origin, providing much more statistical granularity. You will have to read the book for the full policy prescription, which is fully mapped out for the next century. Dr. Prewitt joins New Books in Education for the interview. For questions or comments on the podcast, you can also find the host on Twitter at @PoliticsAndEd. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

In Authoritarian Rule of Law: Legislation, Discourse and Legitimacy in Singapore (Cambridge University Press, 2012), Jothie Rajah tells a compelling story of the rule of law as discourse and praxis serving illiberal ends. Through a series of case studies on legislation criminalizing vandalism and regulating the print media, legal profession, and religion in Singapore, Rajah raises critical questions about the meaning and place of law in a postcolony that celebrates colonialism as a cause of its modernity, prosperity and plurality. Terrence Halliday describes Rajah’s work as “theoretically innovative, empirically compelling, and gracefully written”, adding that it “has far-reaching consequences for national leaders who seek ‘third ways’ in which economic development is partitioned from political liberalism”. As Halliday suggests, the contents of Authoritarian Rule of Law transcend the confines of the small city-state with which it is primarily concerned, and go to global debates about legislation, discourse and legitimacy, as well as to the inherent tensions in the rule-of-law ideal itself. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Today I had the pleasure of interviewing my legal history professor at Carolina Law, John V. Orth about his short story Self-Defense (14 Green Bag 2D Autumn 2010). Orth, who is well known for his more traditional legal scholarship, has made a powerful venture into fiction.  The story, which begins by describing an ordinary daily dog-walk, leads its reader into deep ponderings about the state of American law and society.   Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law