New Books in Law

My marginal comment, recorded at the end of the chapter on the Belzec trial in Michael Bryant‘s fine new book Eyewitness to Genocide: The Operation Reinhard Death Camp Trials, 1955-1966 (University of Tennessee Press, 2014), is simple:  “!!!!”  Text speak, to be sure, but it conveys the surprise I felt. One can ask many questions about the trials of the German guards and administrators of Belzec, Sobibor and Treblinka.  Why did it take so long to put them on trial?  How did the German public and government respond to the trials?  What do the trials say about German memory of the Holocaust? Bryant answers all of these questions thoughtfully and persuasively.  But, the heart of his book is a close study of the prosecution of a few dozen German soldiers, most of whom clearly had dirty hands.  He takes us step by step through the process of locating the accused and those who could testify against them, through the complexities of the German legal code, and through the testimony and eventual convictions.   And he explains why many of the accused were convicted of lesser crimes, or not convicted at all. Bryant, trained as both a lawyer and an historian, is uniquely qualified to lead us on this journey.  He does so with the verve of someone writing in the true crime genre,  integrating life stories of the accused and the courtroom strategies of their trials with a thoughtful analysis of the legal code and culture that shaped their fates. By the time I finished the book, my initial response had turned into a reluctant understanding. I’m not sure what the right solution is to the problems of transitional justice.  But Bryant makes it abundantly clear why these trials turned out in this way, however uncomfortable that might make us. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Most people say “I’m sorry” a lot. After all, we make a lot of mistakes, most of them minor, so we don’t mind apologizing and expect our apologies to be accepted or at least acknowledged. But how many of our apologies are what might be called “strategic,” that is, designed to do nothing more than placate the person we have wronged and essentially exonerate ourselves? In other word, how many of our apologies are genuine? It’s a good question, but it raises another: what is a genuine apology? Does it involve an admission of guilt, remorse, a promise never to do it (whatever it is) again, compensation for the wrong?  That’s a good question too, but it, too, raises a question: how can we tell a strategic apology from a genuine one? Gnashing of teeth? Wailing? Weeping? Statements against interest? As Nick Smith points out in his insightful Justice through Apologies: Remorse, Reform, and Punishment (Cambridge University Press, 2014), we don’t usually ask any of these questions when giving and taking apologies, and even when we do, our answers don’t make much sense. This thoughtlessness is particularly troublesome when apologies are used or required in high-stakes legal contexts. What can an apology mean when a judge compels a criminal to give one in exchange for a lesser sentence? What can an apology mean when a huge corporation issues one in a civil case knowing full well that doing so will likely reduce the damages it will have to pay? How can an apology be genuine–or even distinguished from a strategic apology–when the apologizer has so much to gain if they apologize and so much to lose if they don’t? All good questions. Listen in. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Bestiality is more often the subject of jokes than legal cases nowadays, and so it was in late eighteenth-century western New England, when, strangely, two octogenarians were accused in separate towns in the space of a few years. Doron S. Ben-Atar and Richard D. Brown each discovered one case while they were researching other books, but when they began talking to one another, they realized the cases might be at the root of something bigger. Taming Lust: Crimes Against Nature in the Early Republic (University of Pennsylvania Press, 2014) explores two New England accusations of bestiality crimes, the trials, and the death sentences imposed upon the defendants. In post-revolutionary America, in the Age of Reason, how could two old men face the gallows on charges that seemed more appropriate to the early 1640s? Ben-Atar and Brown unravel the personal, political, and religious entanglements that the cases represent. They provide a history of bestiality and its connection to sodomy or “crimes against nature,” and show the consequences of keeping laws on the books that may have outlived the culture that introduced them. Ben-Atar and Brown examine a struggle between Federalists and evangelicals, on the one hand, against Jeffersonian Republicans and rational religionists on the other, to define morality in the emerging new republic. The book puts the accusation of bestiality squarely in the midst of a cultural cataclysm in America. Taming Lust combines riveting historical narrative with a compelling analysis. Even the footnotes are not to be missed. These two isolated cases help us understand not only the local history of western New England, but the national political struggles, the evangelical movement that bridged the New Divinity with the Second Great Awakening, and the transatlantic influences from England and France that so affected the lives of Americans in the 1790s. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

When we discuss the death penalty we usually ask two questions: 1) should the state be in the business of killing criminals?; and 2) if so, how should the state put their lives to an end? As Austin Sarat shows in his fascinating book Gruesome Spectacles: Botched Executions and America’s Death Penalty (Stanford University Press, 2014), these two questions are intimately related. The reason is pretty simple: if the state can’t find a legally and morally acceptable way to execute malefactors, then perhaps we need to ask seriously whether the state should be killing criminals at all. If the means cannot be found, then the end may well be unachievable. In Gruesome Spectacles, Sarat analyses hundreds of executions in an attempt to assess the degree to which we can kill criminals in legally and morally acceptable ways. What he discovers is that about three in a hundred American executions over the past century or so have gone badly wrong. Criminals who were supposed to have been put to death in a humane way were strangled, decapitated, set on fire, suffocated, and slowly poisoned. Apparently American authorities—however laudable their intentions—have found it quite difficult, practically speaking, to avoid “cruel and unusual punishment” when executing wrongdoers. It’s important to note that Gruesome Spectacles is not an anti-death penalty book. Sarat’s presentation of botched executions is balanced by consideration of the horrible crimes for which the ultimate penalty was imposed. What Sarat does–and we should thank him for it–is provide hard evidence on a crucial question: can we, realistically speaking, put criminals to death humanely? Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Olivier Zunz is the author of Philanthropy in America: A History (Princeton University Press 2014). The paperback addition of the book has recently been published with a new preface from the author. Zunz is Commonwealth Professor of History at the University of Virginia. The book tracks the origins of philanthropy in America as a pact between the very rich and reformers. This was a movement that began in the Northeast, but then spread to the South where the construction of schools for African American children dominated the philanthropic agenda. The book also unearths the historic legal precedents related to how nonprofit organizations are regulated today, the introduction of tax exemption, and prohibitions on lobbying. In sum, Zunz places philanthropy, big and small, into the center of a conversation about the development of American democratic practices. It is a worthy ready for those interested in American politics, the role of the US in world affairs, and the nonprofit sector. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Why do we feel guilty–and sometimes hurt ourselves–when we harm someone? Why do we become angry–and sometimes violent–when we see other people being harmed? Why do we forgive ourselves and others after a transgression even though “the rules” say we really shouldn’t? In his fascinating book The Punisher’s Brain: The Evolution of Judge and Jury (Cambridge University Press, 2014), Judge Morris B. Hoffman attempts to answer these questions with reference to evolutionary psychology. As a working judge, Hoffman is in an excellent position to explore the dynamics of our instincts to punish and forgive. We are, he says, evolved to punish “cheaters”–ourselves and others–so as to maintain all-important bonds of trust and cooperation. But we are also evolved not to take punishment too far. When correction becomes too costly, we forgive so as to maintain social solidarity. Listen in to our fascinating discussion. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

The constitution guarantees Americans freedom of religious practice and freedom from government interference in the same same. But what does religious liberty mean in practice? Does it mean that the government must permit any religious practice, even one that’s nominally illegal? Clearly not. You can’t shoot someone even if God tells you to. Does it mean, then, that religious liberty is a sort of fiction and that the government can actually closely circumscribe religious practice? Clearly not. The government can’t ban a putatively religious practice just because it’s expedient to do so. So where’s the line? In God vs. the Gavel: The Perils of Extreme Religious Liberty (Cambridge University Press, Second Edition, 2014), Marci A. Hamilton argues that it’s shifting rapidly. Traditionally, the government, congress, and courts agreed that though Americans should enjoy extensive religious freedom, that freedom did not include license to do anything the religious might like. A sensible accommodation between church and state had to be made so that both the church and state could do their important work. According to Hamilton, in  recent decades radical religious reformers have mounted a successful campaign to throw the idea of a sensible accommodation out the window. They have expanded the scope of religious liberty and thereby limited the ability of the government to protect citizens generally. In this sense, she says, religion–a force for great social good, in her mind–has been made into an instrument of harm for many Americans. Listen in. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

  In early America, the practice of “warning out” was unique to New England, a way for the community to regulate those who might fall into poverty and need assistance from the town or province. Robert Love’s Warnings: Searching for Strangers in Colonial Boston (University of Pennsylvania Press, 2014) is the first book about this forgotten aspect of colonial Massachusetts life since 1911. We perambulate with him around Boston’s streets on the eve of the Revolution. Dayton and Salinger present the legal basis of the warning system and the moral, religious and humanistic motives of those who enforced it. We interview legal historian Cornelia H. Dayton of the University of Connecticut about the book she wrote with fellow historian Sharon V. Salinger, of the University of California, Irvine. They discovered his “diary,” and from there found warrants and other documents that allowed them to reconstruct his world, as well as the biographies of the sojourners, soldiers, and members of ethnic and religious minorities who were moving throughout the British Atlantic. They provide fresh insights into why people came to Boston and how long they stayed. Professor Dayton explains how she and Salinger provide a fresh, and perhaps controversial, interpretation of the role that warning played in the city’s civic landscape. Robert Love’s Warnings is a comparative legal history as well as social and political history of New England in the decade before the Revolution. Update (April 26, 2015): Sharon V. Salinger and Cornelia Dayton have received a major book award by the Organization of American Historians (OAH).  Their book Robert Love’s Warnings: Searching for Strangers in Colonial Boston (University of Pennsylvania Press, 2014) won the Merle Curti prize for the best book in American social history.   Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

In Birdmen: The Wright Brothers, Glenn Curtiss, and the Battle to Control the Skies (Ballentine Books, 2014), Lawrence Goldstone recounts the discovery and mastery of aviation at the turn of the twentieth century–and all the litigation that ensued. Foremost amongst the legal battles in early aviation was the suits waged between the Wilbur and Orville Wright and Glenn Curtiss. Goldstone offers an in depth view of that struggle. From the publisher: “While the Wright brothers’ contributions to aviation are so famous as to be legendary, the ruthlessness with which they stifled their competitors remains largely unknown. The feud between the Wright brothers and Glenn Curtiss was a collision of strong, unyielding, profoundly American personalities. On one side was a pair of tenacious siblings who together had solved the centuries-old riddle of powered, heavier-than-air flight. On the other was an audacious young motorcycle racer whose aircraft became synonymous in the public mind with death-defying stunts. For more than a decade, they battled each other in court, at air shows, and in the eyes of the scientific and business communities. At issue were more than just the profits from a patent, but control of the means of innovation in a new age of rapid industrial change. The outcome of this contest of wills would shape the course of aviation history– and take a fearsome toll on the lives and livelihoods of the men involved.” Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Federico Fabbrini is Assistant Professor of European & Comparative Constitutional Law at Tilburg Law School in the Netherlands. In his new book, entitled Fundamental Rights in Europe: Challenges and Transformations in Comparative Perspective (Oxford University Press, 2014), Fabbrini analyses the constitutional implications of the highly complex European architecture for the protection of fundamental rights and the interactions between the various European human rights standards. By innovatively comparing this architecture with the United States Federal System, the book advances an analytical model that systematically explains the dynamics at play within the European multilevel human rights architecture. The book however also goes beyond simple theory and tests the model of challenges and transformations by examining four very interesting and extremely relevant case studies. In the end, a ‘neo-federal’ theory is proposed that is able to frame the dilemmas of ‘identity, equality, and supremacy’ behind this multilevel architecture in Europe. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law