Featured New Books

September 2017

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The Federal Judiciary: Strengths and Weaknesses

No sitting federal judge has ever written so trenchant a critique of the federal judiciary as Richard A. Posner does in this, his most confrontational book. Skewering the politicization of the Supreme Court, the mismanagement of judicial staff, the overly complex system of appeals, the threat of originalism, outdated procedures, and the backward-looking traditions of law schools and the American judicial system, Posner has written a cri de coeur and a battle cry. With the prospect that the Supreme Court will soon be remade in substantial, potentially revanchist, ways, The Federal Judiciary exposes the American legal system’s most troubling failures in order to instigate much-needed reforms.

Posner presents excerpts from legal texts and arguments to expose their flaws, incorporating his own explanation and judgment to educate readers in the mechanics of judicial thinking. This rigorous intellectual work separates sound logic from artful rhetoric designed to subvert precedent and open the door to oblique interpretations of American constitutional law. In a rebuke of Justice Antonin Scalia’s legacy, Posner shows how originalists have used these rhetorical strategies to advance a self-serving political agenda. Judicial culture adheres to an antiquated traditionalism, Posner argues, that inhibits progressive responses to threats from new technologies and other unforeseen challenges to society.

With practical prescriptions for overhauling judicial practices and precedents, The Federal Judiciary offers an unequaled resource for understanding the institution designed by the founders to check congressional and presidential power and resist its abuse.

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Benched: Abortion, Terrorists, Drones, Crooks, Supreme Court, Kennedy, Nixon, Demi Moore, and Other Tales from the Life of a Federal Judge

Benched is about what a judge really does, reckoning with the difficulty of deciding close cases, without voting personal or political preferences. It also outlines nineteen proposals for improvements in the American system of justice, covering such diverse topics as police misconduct lawsuits, selection of juries, citizen standing to sue government officials, reviving the independent counsel, and death penalty sentencing. Finally, Benched is an account of the life the author has been fortunate to live. Fortuitous opportunities enabled me to see the inner workings of the White House, Congress, and the Supreme Court, and to be a United States attorney for five years, a federal trial judge for seven years, and now a federal appellate judge in my thirty-eight year on the United States Court of Appeals for the Second Circuit. I’ve survived three adventuresome confirmations, one nearly disastrous. I’ve encountered presidents, senators, governors, and hundreds of judges from here and abroad, and an array of personalities in and out of court, the famous and the infamous, the impressive and the bizarre. I’ve had time to compile the world’s first complete genealogical chart of Greek mythology and, as a devoted fan, endured the ups and downs of the Boston Red Sox.

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Chokehold: Policing Black Men

Cops, politicians, and ordinary people are afraid of black men. The result is the Chokehold: laws and practices that treat every African American man like a thug. In this explosive new book, an African American former federal prosecutor shows that the system is working exactly the way it’s supposed to. Black men are always under watch, and police violence is widespread—all with the support of judges and politicians.

In his no-holds-barred style, Butler, whose scholarship has been featured on 60 Minutes, uses new data to demonstrate that white men commit the majority of violent crime in the United States. For example, a white woman is ten times more likely to be raped by a white male acquaintance than be the victim of a violent crime perpetrated by a black man. Butler also frankly discusses the problem of black on black violence and how to keep communities safer—without relying as much on police.

Chokehold powerfully demonstrates why current efforts to reform law enforcement will not create lasting change. Butler’s controversial recommendations about how to crash the system, and when it’s better for a black man to plead guilty—even if he’s innocent—are sure to be game-changers in the national debate about policing, criminal justice, and race relations.

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The U.S. Supreme Court and Racial Minorities: Two Centuries of Judicial Review on Trial

The U.S. Supreme Court and Racial Minorities offers an in-depth, chronologically arranged look at the record of the U.S. Supreme Court on racial minorities over the course of its first two centuries. It does not pose the anachronistic standard, ”Did the Supreme Court get it right?” but rather, ”How did the Supreme Court compare to other branches of the federal government at the time?” Have these Justices, prevented against removal from office by discontented voters (in contrast to the President and the members of Congress), done any better than the elected branches of government at protecting racial minorities in America?

Goldstein examines treatment of four racial minorities (Indians, Blacks, Asians, and Hispanics) in this investigation of the life-tenured Supreme Court’s comparative willingness to protect racial minorities. She finds that judicial review, while no panacea, did help America’s racial minorities: when the Court was willing to help, it was particularly willing to act to check state-level oppressive policies and federal-level administrative abuses. She also documents the Supreme Court’s leadership role on the civil rights of Black Americans from 1911-1989.

This book will be a critical resource not only for scholars of political science and law, but for anyone interested in the history of the treatment of racial minorities by the U.S. government and the value of judicial review as a protector of minority rights.

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Crimmigration Law

At its most basic, “crimmigration” law describes the convergence of two distinct bodies of law: criminal law and procedure with immigration law and procedure. For most of the nation’s history, these operated almost entirely free of the other. Criminal law and procedure was thought to be the province of prosecutors, criminal defense attorneys, and the state and federal judges who oversee criminal prosecutions every day. Immigration law, in contrast, was confined to immigration courts housed within the executive branch of the federal government and staffed by immigration attorneys, immigration judges, and prosecutors employed for many years by the Immigration and Naturalization Service (INS) and now the Department of Homeland Security (DHS).

With this in mind, Crimmigration Law lays out crimmigration law’s contours. It tracks the legal developments that have created crimmigration law and explains the many ways in which the stark line that once appeared to keep criminal law firmly divided from immigration law has melted away. In doing so, it highlights crimmigration law’s most salient features―its ability to substantially raise the stakes of criminal prosecutions by dramatically expanding the list of crimes that can result in removal from the United States, its willingness to freely rely on crimes that apply only to migrants, and its vast dependence on detention as a means of policing immigration law.

Crimmigration law is simply too new to have gained widespread recognition until the last few years. Several recent law enforcement trends and judicial decisions, including U.S. Supreme Court cases, have drastically changed the legal landscape such that, today, crimmigration is developing into a distinct field of law and a palpable feature of law enforcement in communities throughout the country.

This book is intended to provide readers with a fundamental understanding of this developing area of law. It includes case studies and “problem scenarios” that place the concepts discussed within each chapter in a real-world context in addition to “practice pointers” designed to give crimmigration lawyers and students of crimmigration law tips and techniques to help them implement the tools into their daily practice

 

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The Legal Protection of Refugees With Disabilities: Forgotten and Invisible?

Refugees living with disabilities are often forgotten or invisible during acute crises of human displacement. This groundbreaking work examines the experiences of persons with disabilities who have crossed borders in search of protection from disasters or conflict, and analyses the existing legal frameworks for their protection. The authors deftly explore the intersection between one of the oldest international human rights treaties, the 1951 Refugee Convention, with one of the newest, the Convention on the Rights of Persons with Disabilities (CRPD). Drawing on pioneering fieldwork in six countries – Malaysia, Indonesia, Pakistan, Uganda, Jordan and Turkey – this book examines how the CRPD is, or should be, changing the way that governments and aid agencies engage with and accommodate refugees with disabilities. Its timeliness is underscored by the adoption in 2016 of the UN Charter on Inclusion of Persons with Disabilities in Humanitarian Action at the World Humanitarian Summit. Engaging and thought-provoking, this book will captivate any scholar studying international law, development, disability rights and refugee and forced migration studies. It is also an imperative resource for practitioners and policymakers in the humanitarian and development sector, as well as international human rights organisations.
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Access to Justice and International Organizations: The Case of Individual Victims of Human Rights Violations

This groundbreaking book offers a compelling articulation of the right of access to justice for individuals facing human rights violations by international organizations. Following an examination of the human rights obligations of a variety of international organizations, the author scrutinizes their dispute settlement mechanisms as well as the conflict between their immunities and the right of access to justice before national jurisdictions.

Highlighting recent examples, such as the cholera outbreak in Haiti, this book reveals how individual victims of human rights violations by international organizations are frequently left in the cold, due to the lack of an independent, impartial dispute settlement mechanism before which they can file such claims. Considering both global mechanisms and current mechanisms established by international organisations such as administrative jurisdictions for employment-related disputes, Pierre Schmitt finds that they either are not competent or that they have a limited scope. He concludes by offering normative proposals addressed both to international organizations and to national judges confronted with such cases.

Offering a wealth of empirical and practical wisdom, this book will appeal to scholars in public international law and human rights. It is also a must-read for practitioners, judges and legal advisers working in the field and will prove a useful tool for national authorities negotiating immunity conventions with international organizations.

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Enemies Known and Unknown: Targeted Killings in America’s Transnational Wars

President Obama was elected on an anti-war platform, yet targeted killings have increased under his command of the ‘War on Terror’. The US thinks of itself as upholding the rule of international law and spreading democracy, yet such targeted killings have been widely decried as extra-judicial violations of human rights. This book examines these paradoxes, arguing that they are partially explained by the application of existing legal standards to transnational wars. Critics argue that the kind of war the US claims to be waging – transnational armed conflict – doesn’t actually exist. McDonald analyses the concept of transnational war and the legal interpretations that underpin it, and argues that the Obama administration’s adherence to the rule of law produces a status quo of violence that is in some ways more disturbing than the excesses of the Bush administration.

America’s interpretations of sovereignty and international law shape and constitute war itself, with lethal consequences for the named and anonymous persons that it unilaterally defines as participants. McDonald’s analysis helps us understand the social and legal construction of legitimate violence in warfare, and the relationship between legal opinions formed in US government departments and acts of violence half a world away.

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Atrocity Speech Law: Foundation, Fragmentation, Fruition

The law governing the relationship between speech and core international crimes a key component in atrocity prevention is broken. Incitement to genocide has not been adequately defined. The law on hate speech as persecution is split between the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the former Yugoslavia (ICTY). Instigation is confused with incitement and ordering’s scope is too circumscribed. At the same time, each of these modalities does not function properly in relation to the others, yielding a misshapen body of law riddled with gaps. Existing scholarship has suggested discrete fixes to individual parts, but no work has stepped back and considered holistic solutions. 

This book does. To understand how the law became so fragmented, it returns to its roots to explain how it was formulated. From there, it proposes a set of nostrums to deal with the individual deficiencies. Its analysis then culminates in a more comprehensive proposal: a Unified Liability Theory, which would systematically link the core crimes of genocide, crimes against humanity, and war crimes with the four illicit speech modalities. The latter would be placed in one statutory provision criminalizing the following types of speech: (1) incitement (speech seeking but not resulting in atrocity); (2) speech abetting (non-catalytic speech synchronous with atrocity commission); (3) instigation (speech seeking and resulting in atrocity); and (4) ordering (instigation/incitement within a superior-subordinate relationship). Apart from its fragmentation, this body of law lacks a proper name as Incitement Law or International Hate Speech Law, labels often used, fail to capture its breadth or relationship to mass violence. So this book proposes a new and fitting appellation: atrocity speech law.

 

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Risk, Resilience, Inequality and Environmental Law

The environmental challenges of the twenty-first century have raised profound questions regarding the suitability of environmental law to manage the many complex issues at hand. This insightful book considers how the law has adapted to address these challenges and considers the ways in which it might be used to cope with environmental risks and uncertainties, whilst also promoting resilience and greater equality.

The book uses a multi-disciplinary approach to address the compatibility of law with the notions of risk and resilience, it scrutinises how capable these approaches are to effect equitable solutions to environmental risks, and it raises important questions about multi-level and participatory governance. Key chapters examine a variety of global experiments in countries such as China and countries in Latin America, to generate further governance of the environment, improve the available legal tools and give a voice to more diverse groups.

Students and scholars across a variety of fields such as environmental studies, socio-legal studies, law, and risk regulation will find this an stimulating read. Senior policy-makers in central and local government, regulators and risk managers will also find this book imperative in their efforts to manage the dilemmas of environmental control.

Texts from book descriptions. Copyright reserved by publishers.