Featured New Books - May 2015


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Europe's Justice Deficit?

The gradual legal and political evolution of the European Union has not, thus far, been accompanied by the articulation or embrace of any substantive ideal of justice going beyond the founders' intent or the economic objectives of the market integration project. This absence arguably compromises the foundations of the EU legal and political system, since the relationship between law and justice - a crucial question within any constitutional system - remains largely unaddressed. This book brings together a number of contributions by leading academics and young scholars whose work addresses both the legal and philosophical aspects of justice in the European context. The book appraises the existence and nature of this deficit, along with its implications for Europe's future. There have been many accounts of the EU as a story of constitutional evolution and a system of transnational governance, but few which pay sustained attention to the implications for justice. The EU today has moved beyond its initial and primary emphasis on the establishment of an internal market, as the growing importance of EU citizenship and social rights suggests. Yet, most legal analyses of the EU treaties and of EU case law remain premised broadly on the assumption that EU law still largely serves the purpose of perfecting what is fundamentally a system of economic integration. The place to be occupied by the underlying substantive ideal of justice remains significantly underspecified, or even vacant, creating a tension between the market-oriented foundation of the EU and the contemporary essence of its constitutional system. The relationship of law to justice is a core dimension of constitutional systems around the world, and the EU is arguably no different in this respect. The critical assessment of justice in the EU provided by the book's contributions will help to create a fuller picture of the justice deficit in the EU, and, at the same time, open up an important new avenue of legal research of immediate importance.

This title includes a chapter by Professor Caruso.


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The critical legal studies movement : another time, a greater task

Critical legal studies is the most important development in progressive thinking about law of the past half century. It has inspired the practice of legal analysis as institutional imagination, exploring, with the materials of the law, alternatives for society. The Critical Legal Studies Movement was written as the manifesto of the movement by its central figure. This new edition includes a revised version of the original text, preceded by an extended essay in which its author discusses what is happening now and what should happen next in legal thought.


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No day in court : access to justice and the politics of judicial retrenchment

We are now more than half a century removed from height of the rights revolution, a time when the federal government significantly increased legal protection for disadvantaged individuals and groups, leading in the process to a dramatic expansion in access to courts and judicial authority to oversee these protections. Yet while the majority of the landmark laws and legal precedents expanding access to justice remain intact, less than two percent of civil cases are decided by a trial today. What explains this phenomenon, and why it is so difficult to get one's day in court? No Day in Court examines the sustained efforts of political and legal actors to scale back access to the courts in the decades since it was expanded, largely in the service of the rights revolution of the 1950s and 1960s. Since that time, for political, ideological, and practical reasons, a multifaceted group of actors have attempted to diminish the role that courts play in American politics. Although the conventional narrative of backlash focuses on an increasingly conservative Supreme Court, Congress, and activists aiming to constrain the developments of the Civil Rights era, there is another very important element to this story, in which access to the courts for rights claims has been constricted by efforts that target the "rules of the game:" the institutional and legal procedures that govern what constitutes a valid legal case, who can be sued, how a case is adjudicated, and what remedies are available through courts. These more hidden, procedural changes are pursued by far more than just conservatives, and they often go overlooked. No Day in Court explores the politics of these strategies and the effect that they have today for access to justice in the U.S.


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Wasting a crisis : why securities regulation fails

The recent financial crisis led to sweeping reforms that inspired countless references to the financial reforms of the New Deal. Comparable to the reforms of the New Deal in both scope and scale, the 2,300-page Dodd-Frank Act of 2010—the main regulatory reform package introduced in the United States—also shared with New Deal reforms the assumption that the underlying cause of the crisis was misbehavior by securities market participants, exacerbated by lax regulatory oversight.

With Wasting a Crisis, Paul G. Mahoney offers persuasive research to show that this now almost universally accepted narrative of market failure—broadly similar across financial crises—is formulated by political actors hoping to deflect blame from prior policy errors. Drawing on a cache of data, from congressional investigations, litigation, regulatory reports, and filings to stock quotes from the 1920s and '30s, Mahoney moves beyond the received wisdom about the financial reforms of the New Deal, showing that lax regulation was not a substantial cause of the financial problems of the Great Depression. As new regulations were formed around this narrative of market failure, not only were the majority largely ineffective, they were also often counterproductive, consolidating market share in the hands of leading financial firms. An overview of twenty-first-century securities reforms from the same analytic perspective, including Dodd-Frank and the Sarbanes-Oxley Act of 2002, shows a similar pattern and suggests that they too may offer little benefit to investors and some measurable harm.


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The science of perception and memory : a pragmatic guide for the justice system

A robbery victim tries to remember how the crime unfolded and who was present at the scene. A medical patient recalls the doctor saying that the pain in her side wasn't worrisome, and now that the tumor is much larger, she's suing. An investigation of insider trading hinges on someone's memory of exactly what was said at a particular business meeting. In these and countless other examples, our ability to remember our experiences is crucial for the justice system. The problem, though, is that perception and memory are fallible. How often do our eyes or memories deceive us? Is there some way to avoid these errors? Can we specify the circumstances in which perceptual or memory errors are more or less likely to occur?

Professor Daniel Reisberg tackles these questions by drawing on the available science and his personal experience training attorneys. He provides detailed pragmatic advice that will prove helpful to law enforcement, prosecutors, defenders, and anyone else who hopes to maximize the quality of the evidence available to the courts -- whether the evidence is coming from witnesses, victims, or defendants.

This book is carefully rooted in research but written in a way that will make it fully accessible to non-scientists working in the justice system. Early chapters provide an overview of the relevant science and a broad portrait of how perception and memory function. Later chapters offer practical solutions for navigating situations involving eyewitness identifications, remembered conversations, evidence obtained from interviews with children, confession evidence, and the risks of false confession.


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Cultures of copyright

The symbols, signs, and traces of copyright and related intellectual property laws that appear on everyday texts, objects, and artifacts have multiplied exponentially over the past 15 years. Digital spaces have revolutionized access to content and transformed the ways in which content is porous and malleable. In this volume, contributors focus on copyright as it relates to culture. The editors argue that what «counts» as property must be understood as shifting terrain deeply influenced by historical, economic, cultural, religious, and digital perspectives. Key themes addressed include issues of how:

  • Culture is framed, defined, and/or identified in conversations about intellectual property;
  • The humanities and other related disciplines are implicated in intellectual property issues;
  • The humanities will continue to rub up against copyright (e.g., issues of authorship, authorial agency, ownership of texts);
  • Different cultures and bodies of literature approach intellectual property, and how competing dynasties and marginalized voices exist beyond the dominant U.S. copyright paradigm.
Offering a transnational and interdisciplinary perspective, Cultures of Copyright offers readers - scholars, researchers, practitioners, theorists, and others - key considerations to contemplate in terms of how we understand copyright's past and how we chart its futures.


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Punishment and inclusion: race, membership, and the limits of American liberalism

At the start of the twenty-first century, 1 percent of the U.S. population is behind bars. An additional 3 percent is on parole or probation. In all but two states, incarcerated felons cannot vote, and in three states felon disenfranchisement is for life. More than 5 million adult Americans cannot vote because of a felony-class criminal conviction, meaning that more than 2 percent of otherwise eligible voters are stripped of their political rights. Nationally, fully a third of the disenfranchised are African American, effectively disenfranchising 8 percent of all African Americans in the United States. In Alabama, Kentucky, and Florida, one in every five adult African Americans cannot vote.

Punishment and Inclusion gives a theoretical and historical account of this pernicious practice of felon disenfranchisement, drawing widely on early modern political philosophy, continental and postcolonial political thought, critical race theory, feminist philosophy, disability theory, critical legal studies, and archival research into state constitutional conventions. It demonstrates that the history of felon disenfranchisement, rooted in postslavery restrictions on suffrage and the contemporaneous emergence of the modern "American" penal system, reveals the deep connections between two political institutions often thought to be separate, showing the work of membership done by the criminal punishment system and the work of punishment done by the electoral franchise.

Felon disenfranchisement is a symptom of the tension that persists in democratic politics between membership and punishment. This book shows how this tension is managed via the persistence of white supremacy in contemporary regimes of punishment and governance.


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Immigration Judges and U.S. Asylum Policy

Although there are legal norms to secure the uniform treatment of asylum claims in the United States, anecdotal and empirical evidence suggest that strategic and economic interests also influence asylum outcomes. Previous research has demonstrated considerable variation in how immigration judges decide seemingly similar cases, which implies a host of legal concerns—not the least of which is whether judicial bias is more determinative of the decision to admit those fleeing persecution to the United States than is the merit of the claim. These disparities also raise important policy considerations about how to fix what many perceive to be a broken adjudication system.

With theoretical sophistication and empirical rigor, Immigration Judges and U.S. Asylum Policy investigates more than 500,000 asylum cases that were decided by U.S. immigration judges between 1990 and 2010. The authors find that judges treat certain facts about an asylum applicant more objectively than others: facts determined to be legally relevant tend to be treated similarly by judges of different political ideologies, while facts considered extralegal are treated subjectively. Furthermore, the authors examine how local economic and political conditions as well as congressional reforms have affected outcomes in asylum cases, concluding with a series of policy recommendations aimed at improving the quality of immigration law decision making rather than trying to reduce disparities between decision makers.


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Lizzie Borden on trial : murder, ethnicity, and gender

Most people could probably tell you that Lizzie Borden "took an axe and gave her mother forty whacks," but few could say that, when tried, Lizzie Borden was acquitted, and fewer still, why. In Joseph A. Conforti's engrossing retelling, the case of Lizzie Borden, sensational in itself, also opens a window on a time and place in American history and culture. 

Surprising for how much it reveals about a legend so ostensibly familiar, Conforti's account is also fascinating for what it tells us about the world that Lizzie Borden inhabited. As Conforti—himself a native of Fall River, the site of the infamous murders—introduces us to Lizzie and her father and step-mother, he shows us why who they were matters almost as much to the trial's outcome as the actual events of August 4, 1892. Lizzie, for instance, was an unmarried woman of some privilege, a prominent religious woman who fit the profile of what some characterized as a "Protestant nun." She was also part of a class of moneyed women emerging in the late 19th century who had the means but did not marry, choosing instead to pursue good works and at times careers in the helping professions. Many of her contemporaries, we learn, particularly those of her class, found it impossible to believe that a woman of her background could commit such a gruesome murder. 

As he relates the details, known and presumed, of the murder and the subsequent trial, Conforti also fills in that background. His vividly written account creates a complete picture of the Fall River of the time, as Yankee families like the Bordens, made wealthy by textile factories, began to feel the economic and cultural pressures of the teeming population of native and foreign-born who worked at the spindles and bobbins. Conforti situates Lizzie's austere household, uneasily balanced between the well-to-do and the poor, within this social and cultural milieu—laying the groundwork for the murder and the trial, as well as the outsize reaction that reverberates to our day. As Peter C. Hoffer remarks in his preface, there are many popular and fictional accounts of this still-controversial case, "but none so readable or so well-balanced as this."


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La graunde abridgement : collecte & escrie per le iudge tresreverend Syr Robert Brooke chivaler, nadgairs chiefe iustice del Common Banke

"An Excellent Repertory Or Table for the Year Books" With a New Introduction and Table of Corrections by David J. Seipp Brooke [Brook], Robert. La Graunde Abridgement, Collect & Escrie per le Iudge Tresreverend Syr Robert Brooke Chivalier, Nadgairs Chiefe Iustice del Common Banke. [And] La Secounde Part du Graunde Abridgement.... Originally published: [London]: In Aedibus Richardi Tottelli, 1573. Reprint of first edition, with a new introduction and table of corrections of marginal citations by David J. Seipp. There are over 21,000 entries in Brooke's Abridgement. In the Table of Corrections of Marginal Citations Professor Seipp identifies and corrects numerous mistakes in reign, year, or folio created in error by Tottell's type-setters or Brooke's pen. Sir Robert Brooke [d.1558] was renowned for his great learning and probity as a judge. His Abridgement is based on Fitzherbert's Abridgement, but it contains much new material. In all, Brooke abridged nearly 21,000 cases and digested them alphabetically under 404 headings. It abridges fully the Year Books of Henry VII and Henry VIII. Brooke proceeded with great care and accuracy, and is believed to have had access to the original records of the Year Books. Coke calls the Abridgement "a worthy and painful work and an excellent repertory or table for the Year Books of the Law" (cited in Marvin's Legal Bibliography 151-152).


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