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'Rethinking' legal reasoning seems a bold aim given the large amount of literature devoted to this topic. In this thought-provoking book, Geoffrey Samuel proposes a different way of approaching legal reasoning by examining the topic through the context of legal knowledge (epistemology). What is it to have knowledge of legal reasoning? At a more specific level the pursuit of this understanding is conducted through posing a number of questions that are founded on different approaches. What has legal reasoning been? What are the institutional and conceptual legacies of this history? What is the literature and textual heritage? How does it compare with medical reasoning and with reasoning in the humanities? Can it be demystified? In exploring these questions Samuel suggests a number of frameworks that offer some new insights into the nature of legal reasoning. The author also puts forward two key ideas. First, that the legal notion of an 'interest' might perhaps be a very suitable artefact for rethinking legal reasoning; and, secondly, that fiction theory might be the most viable 'epistemological attitude' for understanding, if not rethinking, reasoning in law. This book will be of great interest to academics who are researching legal method and legal reasoning, as well as epistemology of the social sciences and aspects of comparative law. It will also be an insightful text for those interested in legal history and historical perspectives on legal reasoning.
Since the birth of criminal copyright in the nineteenth century, the copyright system has blurred the distinction between civil and criminal infringements. Today, in many jurisdictions, infringement of copyrighted materials can result in punitive fines and even incarceration. In this illuminating book, Eldar Haber analyzes the circumstances, justifications, and ramifications of the criminalization process and tells the story of how a legal right in the private enforcement realm has become over-criminalized. He traces the origins of criminal copyright legislation and follows the movement of copyright criminalization and enforcement on local and global scales. This important work should be read by anyone concerned with the future of copyright and intellectual property in the digital era.
How did the United States go from being a country that tries to rehabilitate street criminals and prevent white-collar crime to one that harshly punishes common lawbreakers while at the same time encouraging corporate crime through a massive deregulation of business? Why do street criminals get stiff prison sentences, a practice that has led to the disaster of mass incarceration, while white-collar criminals, who arguably harm more people, get slaps on the wrist--if they are prosecuted at all? In "Who Are the Criminals?," one of America's leading criminologists provides new answers to these vitally important questions by telling how the politicization of crime in the twentieth century transformed and distorted crime policymaking and led Americans to fear street crime too much and corporate crime too little.
John Hagan argues that the recent history of American criminal justice can be divided into two eras--the age of Roosevelt (roughly 1933 to 1973) and the age of Reagan (1974 to 2008). A focus on rehabilitation, corporate regulation, and the social roots of crime in the earlier period was dramatically reversed in the later era. In the age of Reagan, the focus shifted to the harsh treatment of street crimes, especially drug offenses, which disproportionately affected minorities and the poor and resulted in wholesale imprisonment. At the same time, a massive deregulation of business provided new opportunities, incentives, and even rationalizations for white-collar crime--and helped cause the 2008 financial crisis and subsequent recession.
The time for moving beyond Reagan-era crime policies is long overdue, Hagan argues. The understanding of crime must be reshaped and we must reconsider the relative harms and punishments of street and corporate crimes. In a new afterword, Hagan assesses Obama's policies regarding the punishment of white-collar and street crimes and debates whether there is any evidence of a significant change in the way our country punishes them.
In writings about Islam, women and modernity in the Middle East, family and religion are frequently invoked but rarely historicized. Based on a wide range of local sources spanning two centuries (1660-1860), Beshara B. Doumani argues that there is no such thing as the Muslim or Arab family type that is so central to Orientalist, nationalist, and Islamist narratives. Rather, one finds dramatic regional differences, even within the same cultural zone, in the ways that family was understood, organized, and reproduced. In his comparative examination of the property devolution strategies and gender regimes in the context of local political economies, Doumani offers a groundbreaking examination of the stories and priorities of ordinary people and how they shaped the making of the modern Middle East.
Historiographical approaches in international investment law scholarship are becoming ever more important. This insightful book combines perspectives from a range of expert international law scholars who explore ways in which using a broad variety of methods in historical research can lead to a better understanding of international investment law. International Investment Law and History critically evaluates the use of historical analysis in international investment law. It examines the various roles that historical arguments play in interpreting investment treaties, resolving investor-state disputes, and justifying or criticizing the current system of investment protection. This book is the first in-depth study on the methodological challenges and benefits of historical approaches in international investment law. As such, it is a vital tool for scholars and practitioners in the field who wish to understand ways in which to use historical research and analysis to improve and redefine international investment law.
Since its Broadway debut, Hamilton: An American Musical has infused itself into the American experience: who shapes it, who owns it, who can rap it best. Lawyers and legal scholars, recognizing the way the musical speaks to some of our most complicated constitutional issues, have embraced Alexander Hamilton as the trendiest historical face in American civics. Hamilton and the Law offers a revealing look into the legal community's response to the musical, which continues to resonate in a country still deeply divided about the reach of the law. A star-powered cast of legal minds-from two former U.S. solicitors general to leading commentators on culture and society-contribute brief and engaging magazine-style articles to this lively book. Intellectual property scholars share their thoughts on Hamilton's inventive use of other sources, while family law scholars explore domestic violence. Critical race experts consider how Hamilton furthers our understanding of law and race, while authorities on the Second Amendment discuss the language of the Constitution's most contested passage. Legal scholars moonlighting as musicians discuss how the musical lifts history and law out of dusty archives and onto the public stage. This collection of minds, inspired by the phenomenon of the musical and the Constitutional Convention of 1787, urges us to heed Lin-Manuel Miranda and the Founding Fathers and to create something new, daring, and different.
This volume explores the legal issues and legal consequences underlying relations between secular and religious authorities in the context of the Christian Church, from its earliest emergence within Roman Palestine as a persecuted minority sect through the period when it became legally recognized within the Roman empire, its many institutional manifestations in the East and West throughout the Middle Ages, the reconfigurations associated with the Reformation and Catholic/Counter-Reformations, the legal and constitutional complications, and the variable consequences of so-called secularization thereafter. The engagement of secular and religious authorities with the law and the question of what the law actually comprised (Roman law, canon law, national laws, state and royal edicts) are addressed. Bringing together the work of a wide range of scholars, this volume deepens our understanding of interactions between the churches and the legal systems in which they existed in the past and continue to exist now.
The history of international adjudication is all too often presented as a triumphalist narrative of normative and institutional progress that casts aside its uncomfortable memories, its darker legacies and its historical failures. In this narrative, the bulk of 'trials' and 'errors' is left in the dark, confined to oblivion or left for erudition to recall as a curiosity. Written by an interdisciplinary group of lawyers, historians and social scientists, this volume relies on the rich and largely unexplored archive of institutional and legal experimentation since the late nineteenth century to shed new light on the history of international adjudication. It combines contextual accounts of failed, or aborted, as well as of 'successful' experiments to clarify our understanding of the past and present of international adjudication.
Presidents shape not only the course of history but also how Americans remember and retell that history. From the Oval Office they instruct us what to respect and what to reject in our past. They regale us with stories about who we are as a people, and tell us whom in the pantheon of greats we should revere and whom we should revile. The president of the United States, in short, is not just the nation's chief legislator, the head of a political party, or the commander in chief of the armed forces, but also, crucially, the nation's historian in chief. In this engaging and insightful volume, Seth Cotlar and Richard Ellis bring together top historians and political scientists to explore how eleven American presidents deployed their power to shape the nation's collective memory and its political future. Contending that the nation's historians in chief should be evaluated not only on the basis of how effective they are in persuading others, Historian in Chief argues they should also be judged on the veracity of the history they tell.
Demands for redress of historical injustice are a crucial component of contemporary struggles for social and transnational justice. However, understanding when and why an unjust history matters for considerations of justice in the present is not straightforward. Alasia Nuti develops a normative framework to identify which historical injustices we should be concerned about, to conceptualise the relation between persistence and change and, thus, conceive of history as newly reproduced. Focusing on the condition of women in formally egalitarian societies, the book shows that history is important to theorise the injustice of gender inequalities and devise transformative remedies. Engaging with the activist politics of the unjust past, Nuti also demonstrates that the reproduction of an unjust history is dynamic, complex and unsettling. It generates both historical and contemporary responsibilities for redress and questions precisely those features of our order that we take for granted.
There has been an explosion of interest in recent years regarding the origin and of intellectual property law. The study of copyright history, in particular, has grown remarkably in the last twenty years, with a flurry of activity in the last ten. This Handbook takes stock of the field of copyright history as it stands today, as well as examining potential developments in the future. The contributions feature copyright and history experts from across the UK, Australia, the United States, France, Spain and Italy. Covering European, US and international copyright history and traversing from the 16th Century to the early 20th century, this book offers a broad survey of the field and a solid foundation for future research. Students and scholars of copyright law, authorship, art, and the book and music trades will find this book to be an invaluable resource. It will also be of use to practising lawyers and judges with an interest in the doctrinal history of copyright law.
The 1911 Copyright Act, often termed the 'Imperial Copyright Act', changed the jurisprudential landscape in respect of copyright law, not only in the United Kingdom but also within the then Empire. This book offers a bird's eye perspective of why and how the first global copyright law launched a new order, often termed the 'common law copyright system'. This carefully researched and reflective work draws upon some of the best scholarship from Australia, Canada, India, Israel, Jamaica, New Zealand, Singapore, South Africa and United Kingdom. The authors - academics and practitioners alike - situate the Imperial Copyright Act 1911 within their national laws, both historically and legally. In doing so, the book queries the extent to which the ethos and legacy of the 1911 Copyright Act remains within indigenous laws. A Shifting Empire offers a unique global, historical view of copyright development and will be a valuable resource for policy-makers, academic scholars and members of international copyright associations.
Reasoned Administration and Democratic Legitimacy: How Administrative Law Supports Democratic Government explores the fundamental bases for the legitimacy of the modern administrative state. While some have argued that modern administrative states are a threat to liberty and at war with democratic governance, Jerry L. Mashaw demonstrates that in fact reasoned administration is more respectful of rights and equal citizenship and truer to democratic values than lawmaking by either courts or legislatures. His account features the law's demand for reason giving and reasonableness as the crucial criterion for the legality of administrative action. In an argument combining history, sociology, political theory and law, this book demonstrates how administrative law's demand for reasoned administration structures administrative decision-making, empowers actors within and outside the government, and supports a complex vision of democratic self-rule.
Laws against Holocaust denial are perhaps the best-known manifestation of the present-day politics of historical memory. In Memory Laws, Memory Wars, Nikolay Koposov examines the phenomenon of memory laws in Western and Eastern Europe, Ukraine, and Russia and exposes their very different purposes in the East and West. In Western Europe, he shows how memory laws were designed to create a common European memory centred on the memory of the Holocaust as a means of integrating Europe, combating racism, and averting national and ethnic conflicts. In Russia and Eastern Europe, by contrast, legislation on the issues of the past is often used to give the force of law to narratives which serve the narrower interests of nation states and protect the memory of perpetrators rather than victims. This will be essential reading for all those interested in ongoing conflicts over the legacy of the Second World War, Nazism, and communism.
Informed in 1944 that she was "not of the sex" entitled to be admitted to Harvard Law School, African American activist Pauli Murray confronted the injustice she called "Jane Crow." In the 1960s and 1970s, the analogies between sex and race discrimination pioneered by Murray became potent weapons in the battle for women's rights, as feminists borrowed rhetoric and legal arguments from the civil rights movement. Serena Mayeri's Reasoning from Race is the first book to explore the development and consequences of this key feminist strategy. Mayeri uncovers the history of an often misunderstood connection at the heart of American antidiscrimination law. Her study details how a tumultuous political and legal climate transformed the links between race and sex equality, civil rights and feminism. Battles over employment discrimination, school segregation, reproductive freedom, affirmative action, and constitutional change reveal the promise and peril of reasoning from race--and offer a vivid picture of Pauli Murray, Ruth Bader Ginsburg, and others who defined feminists' agenda. Looking beneath the surface of Supreme Court opinions to the deliberations of feminist advocates, their opponents, and the legal decision makers who heard--or chose not to hear--their claims, Reasoning from Race showcases previously hidden struggles that continue to shape the scope and meaning of equality under the law.
The initial responses to 9/11 engaged categorical questions about 'war', 'terrorism', and 'crime'. Now the implementation of counter-terrorism law is infused with dichotomies - typically depicted as the struggle between security and human rights, but explored more exactingly in this book as traversing boundaries around the roles of lawyers, courts, and crimes; the relationships between police, military, and security agencies; and the interplay of international and national enforcement. The contributors to this book explore how developments in counter-terrorism have resulted in pressures to cross important ethical, legal and organizational boundaries. They identify new tensions and critique the often unwanted outcomes within common law, civil law, and international legal systems. This book explores counter-terrorism measures from an original and strongly comparative perspective and delivers an important resource for scholars of terrorism laws, strategies, and politics, as well as human rights and comparative lawyers.
The Cheese and the Worms is an incisive study of popular culture in the sixteenth century as seen through the eyes of one man, the miller known as Menocchio, who was accused of heresy during the Inquisition and sentenced to death. Carlo Ginzburg uses the trial records to illustrate the religious and social conflicts of the society Menocchio lived in. For a common miller, Menocchio was surprisingly literate. In his trial testimony he made references to more than a dozen books, including the Bible, Boccaccio's Decameron, Mandeville's Travels, and a "mysterious" book that may have been the Koran. And what he read he recast in terms familiar to him, as in his own version of the creation: "All was chaos, that is earth, air, water, and fire were mixed together; and of that bulk a mass formed-just as cheese is made out of milk-and worms appeared in it, and these were the angels." Ginzburg's influential book has been widely regarded as an early example of the analytic, case-oriented approach known as microhistory. In a thoughtful new preface, Ginzburg offers his own corollary to Menocchio's story as he considers the discrepancy between the intentions of the writer and what gets written. The Italian miller's story and Ginzburg's work continue to resonate with modern readers because they focus on how oral and written culture are inextricably linked. Menocchio's 500-year-old challenge to authority remains evocative and vital today.
A novel interpretation of architecture, ugliness, and the social consequences of aesthetic judgment When buildings are deemed ugly, what are the consequences? In Ugliness and Judgment, Timothy Hyde considers the role of aesthetic judgment-and its concern for ugliness-in architectural debates and their resulting social effects across three centuries of British architectural history. From eighteenth-century ideas about Stonehenge to Prince Charles's opinions about the National Gallery, Hyde uncovers a new story of aesthetic judgment, where arguments about architectural ugliness do not pertain solely to buildings or assessments of style, but intrude into other spheres of civil society. Hyde explores how accidental and willful conditions of ugliness-including the gothic revival Houses of Parliament, the brutalist concrete of the South Bank, and the historicist novelty of Number One Poultry-have been debated in parliamentary committees, courtrooms, and public inquiries. He recounts how architects such as Christopher Wren, John Soane, James Stirling, and Ludwig Mies van der Rohe have been summoned by tribunals of aesthetic judgment. With his novel scrutiny of lawsuits for libel, changing paradigms of nuisance law, and conventions of monarchical privilege, he shows how aesthetic judgments have become entangled in wider assessments of art, science, religion, political economy, and the state. Moving beyond superficialities of taste in order to see how architectural improprieties enable architecture to participate in social transformations, Ugliness and Judgment sheds new light on the role of aesthetic measurement in our world.
These stories from the Star Chamber papers, first published in
1958, reveal the real, and sometimes comic, side of the functioning
of the Star Chamber. They are valuable both for the a ~real lifea
(TM) detail they bring to a historical concept, and for the light
they throw on accepted historical generalizations.
Through a series of vivid case studies, Authors in Court charts the 300-year-long dance between authorship and copyright that has shaped each institution's response to changing social norms of identity, privacy, and celebrity. "A literary historian by training, Rose is completely at home in the world of law, as well as the history of photography and art. This is the work of an interdisciplinary scholar at the height of his powers. The arguments are sophisticated and the elegant text is a work of real craftsmanship. It is superb." -Lionel Bently, University of Cambridge "Authors in Court is well-written, erudite, informative, and engaging throughout. As the chapters go along, we see the way that personalities inflect the supposedly impartial law; we see the role of gender in authorial self-fashioning; we see some of the fault lines which produce litigation; and we get a nice history of the evolution of the fair use doctrine. This is a book that should at least be on reserve for any IP-related course. Going forward, no one writing about any of the cases Rose discusses can afford to ignore his contribution." -Lewis Hyde, Kenyon College
This book presents a timely assessment of the impact of history, politics and economics in shaping the Singapore Constitution, going beyond the descriptive narrative, the authors will cast a critical eye over the developments of the last 40 years.
In 2009, Harper's Magazine sent war-crimes expert Lawrence Douglas to Munich to cover the last chapter of the lengthiest case ever to arise from the Holocaust: the trial of eighty-nine-year-old John Demjanjuk. Demjanjuk's legal odyssey began in 1975, when American investigators received evidence alleging that the Cleveland autoworker and naturalized US citizen had collaborated in Nazi genocide. In the years that followed, Demjanjuk was twice stripped of his American citizenship and sentenced to death by a Jerusalem court as "Ivan the Terrible" of Treblinka--only to be cleared in one of the most notorious cases of mistaken identity in legal history. Finally, in 2011, after eighteen months of trial, a court in Munich convicted the native Ukrainian of assisting Hitler's SS in the murder of 28,060 Jews at Sobibor, a death camp in eastern Poland. An award-winning novelist as well as legal scholar, Douglas offers a compulsively readable history of Demjanjuk's bizarre case. The Right Wrong Man is both a gripping eyewitness account of the last major Holocaust trial to galvanize world attention and a vital meditation on the law's effort to bring legal closure to the most horrific chapter in modern history.
The psychological aftereffects of war are not just a modern-day plight. Following the Civil War, numerous soldiers returned with damaged bodies or damaged minds. Drawing on archival materials including digitized records for more than 70,000 white and African-American Union army recruits, newspaper reports, and census returns, Larry M. Logue and Peter Blanck uncover the diversity and severity of Civil War veterans' psychological distress. Their findings concerning the recognition of veterans' post-traumatic stress disorders, treatment programs, and suicide rates will inform current studies on how to effectively cope with this enduring disability in former soldiers. This compelling book brings to light the continued sacrifices of men who went to war.
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