New Books in Law

Boston University School of Law Professor Jay Wexler offers readers an entertaining and enlightening tour through a “constitutional zoo” of ten strange-yet-important provisions of the Constitution of the United States in The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions (Beacon, 2012). As the nation’s foremost scholar of Supreme Court laughter (he could claim he invented the burgeoning field), Professor Wexler proves in this book that he is not just a critic of legal humor, Professor Wexler is a master himself. On the serious side, the work succeeds in using ten oft-forgotten constitutional provisions as a means of illustrating how contemporary problems are imbued with constitutional issues. Inspired by his time at the Justice Department’s Office of Legal Counsel providing legal advice to the Executive Branch, Professor Wexler’s book will delight both the most seasoned legal veterans and even those whose last brush with the Constitution was in high school. Perhaps due to Professor Wexler’s extensive experience in teaching Administrative Law, as well as his experience in the Executive Branch, the book would serve as an excellent preface for those law students who plan to take Administrative Law. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

The Last Utopia: Human Rights in History (Harvard University Press 2010) takes the reader on a sweeping journey through the history of international law from the ancient world to the present in search for an answer to the question: where did human rights come from? The book’s author, Columbia University intellectual historian Samuel Moyn examines, in turn, Enlightenment humanism, socialist internationalism, horror at twentieth-century genocide, anti-colonialism, and the civil rights movement. But he concludes that these were not sufficient individually or collectively to account for the emergence this key term of our contemporary political vocabulary. Human rights has, as Moyn tells us in this interview, a more recent and surprising vintage. I have never read a book that devoted so much space to where something wasn’t and to why it wasn’t there. Yet in Moyn’s explanation of the non-existence of human rights until its breakthrough moment in the 1970s, we learn a great deal not only about the importance of the nation-state to the conception of individual rights, but about the nature of historical change. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

In his brilliant new book, The Canonization of Islamic Law: A Social and Intellectual History (Cambridge UP, 2013), Ahmed El Shamsy, Assistant Professor of Islamic Studies at the University of Chicago, explores the question of how the discursive tradition of Islamic law was canonized during the eighth and ninth centuries CE. While focusing on the religious thought of the towering Muslim jurist Muhammad b. Idris al-Shafi’i (d. 820) and the intellectual and social milieu in which he wrote, El Shamsy presents a fascinating narrative of the transformation of the Muslim legal tradition in early Islam. He convincingly argues that through al-Shafi’i’s intervention, a previously mimetic model of Islamic law inseparable from communal practice made way for a more systematic hermeneutical enterprise enshrined in a clearly defined scriptural canon. Through a rich and multilayered analysis, El Shamsy shiningly demonstrates how and why this process of canonization came about. Written in a remarkably lucid fashion, this groundbreaking study will delight and benefit specialists and non-specialists alike. In our conversation, we talked about the shift from oral to written culture in early Islam, the contrast between the normative projects of Malik and al-Shafi’i, al-Shafi’i’s theory of language, the social and political reasons for the success of his legal theory, and the transmission of al-Shafi’i’s thought by his students. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

How should one understand Islamic law outside of its application? What happens when we think about religious jurisprudence theoretically? For medieval Muslim scholars this was the field where one could enumerate the meaning and purpose of Islamic law. But to the uninitiated these justifications for legal thinking are submerged in rote repetition of technical language and discourses. Luckily for us, Rumee Ahmed, professor in the Department of Classics, Near Eastern and Religious Studies at the University of British Columbia, Vancouver, dives into the depths of various legal theory manuals to draw narrative understandings of shari’a to the surface. In Narratives of Islamic Legal Theory (Oxford University Press, 2012), Ahmed examines two formative contemporaneous jurists from the Hanafi school of law to determine the relationship between law and ethics through legal discourses. He focuses on the nature and meaning of the Qur’an, the role of the sunnah (the Prophetic example), and the use of considered opinion in structuring legal boundaries. Ultimately, he views their positions not merely as academic debates over the minutia of religious opinions and injunctions but as ritual observance, which formulates a world ‘as if’ it were ideal. In our conversation we discuss abrogation, punishment, salvation, Abraham’s sacrifice, hadith transmission, Peircean notions of abduction, religious law, stoning, adultery, the role of scholars, and contemporary calls for reform. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Historians tell stories, and stories have beginnings and ends. Most human eras, however, are not so neat. Their beginnings and ends tend to blend into one another. This is why historians are often arguing about when eras–the Roman Empire, the Middle Ages, the Renaissance, etc.–started and stopped. One usually learns very little from these debates, primarily because the established beginnings and endings were agreed upon for good reason. Nothing really big had been missed, so nothing really big has to be changed. But there are exceptions, times when historians discover–or at the very least bring to light–evidence that truly moves the chronological bounds of an era or movement. One such exception is Susan D. Carle‘s excellent new book Defining the Struggle: National Organizing for Racial Justice, 1880-1915 (Oxford UP, 2013). I will only speak for myself, but I always considered the formation of the NAACP in 1909 to be the beginning of the organized, national effort to fight discrimination against African Americans. Having read Susan’s book, I now know that I was wrong. She ably tells the stories of a number of national organizations that pursued the agenda of the NAACP (and, for that matter, the Urban League) decades before the NAACP (and the Urban League) was founded. It would, I think, be a mistake to see Carle’s book as a “pre-history” of the organized struggle for racial justice; rather, it is more appropriate to see it as a book about the true beginning of that struggle. 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

In global narratives of modern legal history, Asia tends to fall short relative to Europe and the US. According to these narratives, while individuals in the West enjoyed political participation and protection, people in Japan did not, and this was due largely to the absence of a distinction between public and private law. In Public Law, Private Practice: Politics, Profit, and the Legal Profession in Nineteenth-Century Japan (Harvard University Asia Center, 2013), Darryl E. Flaherty upends this narrative in a fascinating story of nineteenth century legal culture in Edo Japan. Early nineteenth-century Edo society already had a vibrant legal culture of engaged private practitioners, and by the late century they had paved the way for a codification of public and private law, and a transformation in the social meaning of law in Japan. Flaherty guides readers through the spaces of private legal practice in pre-Meiji society, and the careers of individual legal advocates who practiced in the midst of a transforming legal landscape in the early Meiji period and worked to reconcile their notions of morality and law. The book traces the formation of a legal profession in the nineteenth century, the ways that associations of legal advocates paved the way for the first political parties, and the emergence of the first private universities and law schools in Japan. It is a carefully wrought story that informs both the history of Japan and the global history of law. Enjoy! Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

During the 1924-25 school year, John Scopes was filling in for the regular biology teacher at Rhea County Central High School in Dayton, Tennessee. The final exam was coming up, and he assigned reading from George W. Hunter’s 1914 textbook A Civic Biology to prepare students for the test. What followed has become one of the most well-known accounts in the history of science and one of the most famous trials of twentieth-century America. In Trying Biology: The Scopes Trial, Textbooks, and the Anti-Evolution Movement in American Schools (University of Chicago Press, 2013), Adam R. Shapiro urges us to look beyond the rubrics of “science” and “religion” to understand how the Scopes trial became such an important event in the histories of both.  The story begins with a pair of Pinkerton detectives spying on a pair of textbook salesmen in the Edwards Hotel in Jackson, Mississippi. Shapiro brings us from that hotel room into a series of classrooms, boardrooms, and courtrooms while exploring the battle over textbook reform in the twentieth-century US. Based on a close reading of high school curricular materials around the discipline of botany, with special attention to the emergence of “civic botany” as a pedagogical field, Shapiro’s book uses the debates over pedagogy, evolution, and the textbook industry to explore a number of issues that are of central importance to the history of science: the construction of authorship, the histories of reading practices, the co-emergence of economies and technologies, and the ways that urban and rural localities shape the nature of sciences and their publics. It is a gripping, moving, and enlightening story. Enjoy! Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Why is it that the United States continues to enforce the death penalty when the rest of the Western world abolished its use a little over three decades ago? That question, along with many other equally important questions, is at the heart of Dr. David Garland‘s recent book Peculiar Institution: America’s Death Penalty in an Age of Abolition (Harvard University Press, 2010). His provocative study highlights the uneven application of capital punishment America–a phenomenon widely discussed but rarely understood–and offers a succinct and thoughtful analysis of the historical roots of this contemporary problem. Comparing the modern form of state execution (lethal injection) with original, brutal, forms of state execution (pressing, dismemberment, burning, beheading), Garland dissects the sociocultural and political uses of capital punishment and how they changed over the centuries, evolving to meet the needs of a modern liberal democracy. These liberal adaptations, as Garland explains, forced executions from the public gallows into private rooms within prisons, created a mandatory legal procedure of “super due-process,” and sought to diminish cruel and unusual bodily harm to the offender. But have these adaptations nullified its original purposes? For instance, various studies have shown that the death penalty does not act a deterrent to criminals or serve retributive purposes to the victims and their families. Given these facts, what purposes does it serve, if any? Do these reasons justify retention of the practice? Listen in for more! Dr. Garland is Arthur T. Vanderbilt Professor of Law and Professor of Sociology at New York University. Peculiar Institution is the recipient of numerous awards including: 2012 Michael J. Hindelang Award (American Society of Criminology), 2012 Edwin H. Sutherland Award (American Society of Criminology), 2011 Barrington Moore Book Award (American Sociological Association), Co-Winner 2011 Mary Douglas Prize (American Sociological Association), A Times Literary Supplement Best Book of 2011, and the 2010 Association of American Publishers PROSE Award for Excellence. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Anyone who studies police corruption will be aware of the Knapp Commission that examined allegations of police corruption in New York City in the 1970s. Not only was this famous because of the movie Serpico, but also most of the terminology used in corruption studies of police came from the report of the commission. Michael F. Armstrong was the chief counsel to the commission and this book is a history of the formation and operation of the inquiry. Holding a major commission of inquiry is not something that is done routinely. In his own words, Armstrong says they “fumbled” along working out how one discovers, let alone investigates corrupt police. They Wished they were Honest: The Knapp Commission and New York City Police Corruption (Columbia Press, 2012)reads like an extended episode of The Wire, combining political elements with investigative planning and transcripts of surveillance recordings of bribe negotiations. It is very revealing of the nature of corruption that existed at the time. The book follows some key from Xavier Hollander, the Happy Hooker, through small time corrupt officers (grass eaters) through to hardcore predatory corrupt police (meat eaters). Not only does Armstrong provide an entertaining history of the inquiry but he reveals the full gamut of social forces that make such inquiries difficult to implement successfully. Police corruption is an essential factor in any form of large scale illicit activity, be it prostitution, gambling or drugs. Police have a service to sell, namely protection, and there are many illegal operators who are willing to pay for it to ensure their business runs without interruption. While the Knapp Commission happened 40 years ago, the corruption still exists at varying levels in all communities. Armstrong’s book helps us understand how and why it happens and, especially, how difficult it can be to stop. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

All humans have an emotionally-driven sense of fairness. We get treated unfairly and we get mad. It’s no wonder, then, that our laws–and those of almost everyone else–are intended to assure that people are treated fairly. When those laws fail and we are treated unfairly, we encounter another human universal–the desire for revenge. If someone pokes you in the eye, more likely than not your first inclination is going to be to poke them in the eye too. That “eye-for-an-eye” logic just feels intuitively fair to us. Yet, our laws–and those of most “civilized” places–explicitly deny victims the right to avenge their injuries. The state has a monopoly on justice, and the state’s justice (theoretically) has nothing to do with revenge. The courts asks victims to check their “irrational” desire for revenge and pursue what is (supposedly) a higher, more “rational” form of justice. In Payback: The Case for Revenge (University of Chicago Press, 2013), Thane Rosenbaum argues that we’ve gone way too far in our rejection of revenge. By denying the right to revenge, we have essentially asked people to do something that is impossible–squelch their very natural feeling that wrong-doers must pay in equal measure for the harms they brought. In order for the moral universe to be righted, scofflaws must pay–and be seen to have paid–for what they have done. Our laws recognize none of this, says Rosenbaum, and we should do something about it. We need to bring revenge, he argues, back in. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law