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What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision

Jack M. Balkin (ed.)

The authors of this book, sitting as a hypothetical Supreme Court, rewrite the famous 2015 opinion in Obergefell v. Hodges, which guaranteed same-sex couples the right to marry. In eleven incisive ... More

The authors of this book, sitting as a hypothetical Supreme Court, rewrite the famous 2015 opinion in Obergefell v. Hodges, which guaranteed same-sex couples the right to marry. In eleven incisive opinions, the authors offer the best constitutional arguments for and against the right to same-sex marriage, and debate what Obergefell should mean for the future. In addition to serving as Chief Justice of this imaginary court, the book's editor provides a critical introduction to the case. He recounts the story of the gay rights litigation that led to Obergefell, and he explains how courts respond to political mobilizations for new rights claims. The social movement for gay rights and marriage equality is a powerful example of how — through legal imagination and political struggle — arguments once dismissed as “off-the-wall” can later become established in American constitutional law.Less

The Yale Law School Guide to Research in American Legal History

John B Nann and Morris L Cohen

The study of legal history has a broad application that extends well beyond the interests of legal historians. An attorney arguing a case today may need to cite cases that are decades or even ... More

The study of legal history has a broad application that extends well beyond the interests of legal historians. An attorney arguing a case today may need to cite cases that are decades or even centuries old, and historians studying political or cultural history often encounter legal issues that affect their main subjects. Both groups need to understand the laws and legal practices of past eras. Law plays an important part in the political and social history of the United States. As such, researchers interested in almost every aspect of American life will have occasion to use legal materials. The book provides an overview of legal history research, describing the U.S. legal system and legal authority. It is essential reference is intended for the many nonspecialists who need to enter this arcane and often tricky area of research.Less

Metamorphosis: How to Transform Punishment in America

Robert A. Ferguson

In the past few years, the need for prison reform in America has reached the level of a consensus. We agree that many prison terms are too long, especially for nonviolent drug offenders; that ... More

In the past few years, the need for prison reform in America has reached the level of a consensus. We agree that many prison terms are too long, especially for nonviolent drug offenders; that long-term isolation is a bad idea; and that basic psychiatric and medical care in prisons is woefully inadequate. Some people believe that contracting out prison services to for-profit companies is a recipe for mistreatment. This book argues that these reforms barely scratch the surface of what is wrong with American prisons: an atmosphere of malice and humiliation that subjects prisoners and guards alike to constant degradation. Bolstered by insights from hundreds of letters written by prisoners, the book makes the case for an entirely new concept of prisons and their purpose: an “inner architectonics of reform” that will provide better education for all involved in prisons, more imaginative and careful use of technology, more sophisticated surveillance systems, and better accountability.Less

Law and the Unconscious: A Psychoanalytic Perspective

Anne C. Dailey

This book establishes the vital relevance of contemporary psychoanalysis to law. Our legal system is predicated on the idea that people act rationally and of their own free will. Yet the facts of ... More

This book establishes the vital relevance of contemporary psychoanalysis to law. Our legal system is predicated on the idea that people act rationally and of their own free will. Yet the facts of mental life present a much messier picture. Psychoanalysis draws our attention to the hidden, conflicted, wishful, sometimes self-destructive aspects of our inner selves that can produce inexplicable decision making and irrational behavior. With its detailed portrait of the unconscious, psychoanalysis helps us to answer some of the most puzzling questions in law, such as: Why would an individual confess to a crime she did not commit? What motivates an individual to enter into a prenuptial agreement against his own interest? Why should we prohibit incestuous sexual relations between consenting adults? Why would a victim of domestic violence delay leaving her abuser? What prevents an individual from changing when confronted with evidence of his own racial bias? Delving deep into the complex workings of the unconscious, this book draws on contemporary psychoanalytic ideas to refine and redefine legal theory, rules, and judging. The contemporary psychoanalytic perspective presented here complements much of the research on the mind taking place in the cognitive sciences. At the crossroads of psychology and the law, this book challenges basic legal assumptions about the autonomous, rational actor, offering a nuanced and humane perspective that furthers our legal system’s highest ideals of individual fairness and systemic justice.Less

Justice and Empathy: Toward a Constitutional Ideal

Robert A. Burt

Frank Iacobucci (ed.)

The Supreme Court long considered its highest mission to be the protection of individual liberty from intrusion by government, but the court shifted its focus to social and economic equality. This ... More

The Supreme Court long considered its highest mission to be the protection of individual liberty from intrusion by government, but the court shifted its focus to social and economic equality. This book explores this shift and its implications, especially for the legal protection of the vulnerable. Crucial to the author's perspective is an unconventional view of the role of judges—not simply to decide disputes, but to promote a respectful dialogue leading to a genuine understanding between parties. The U.S. Constitution, through its interpretation by the U.S. Supreme Court, deals with the protection of vulnerable people in American society. It focuses on the judge not as the sole determiner of equality or protection but as a leader who, through careful observation and guidance, promotes an interactive process among the parties in order to settle the matter in an empathic, mutually respectful way. The book points out that judges are not the only actors through whom democratic values founded on empathic mutual respect and accountability can be promoted. At the center of this study is the Civil Rights Act of 1968.Less

The Criterion for Distinguishing Legal Opinions from Judicial Rulings and the Administrative Acts of Judges and Rulers

Shihab al-Din Ahmad ibn Idris al-Qarafi al-Maliki

This book is the first and much-needed English translation of a thirteenth-century text that shaped the development of Islamic law in the late middle ages. Scholars of Islamic law can find few ... More

This book is the first and much-needed English translation of a thirteenth-century text that shaped the development of Islamic law in the late middle ages. Scholars of Islamic law can find few English language translations of foundational Islamic legal texts, particularly from the understudied Mamluk era. This edition addresses this gap, finally making the great Muslim jurist Shihab al-Din al-Qarafi's seminal work available to a wider audience. The book's examination of the distinctions among judicial rulings, which were final and unassailable; legal opinions, which were advisory and not binding; and administrative actions, which were binding but amenable to subsequent revision, remained standard for centuries and are still actively debated today.Less

Defaming the Dead

Don Herzog

If you defame the dead, even someone who recently died, tort law does not think that’s an injury: not to the grieving survivors and not to the dead person. This book argues that defamation is an ... More

If you defame the dead, even someone who recently died, tort law does not think that’s an injury: not to the grieving survivors and not to the dead person. This book argues that defamation is an injury to the recently dead. It explores history, including the shaping of the common law, and offers an account of posthumous harm and wrong. Along the way, it offers a sustained exploration of how we and the law think about corpse desecration.Less

The New Eugenics: Selective Breeding in an Era of Reproductive Technologies

Judith Daar

A provocative examination of how unequal access to reproductive technology replays the sins of the eugenics movement. Eugenics, the effort to improve the human species by inhibiting reproduction of ... More

A provocative examination of how unequal access to reproductive technology replays the sins of the eugenics movement. Eugenics, the effort to improve the human species by inhibiting reproduction of “inferior” genetic strains, ultimately came to be regarded as the great shame of the Progressive movement. This book argues that current attitudes toward the potential users of modern assisted reproductive technologies threaten to replicate eugenics' same discriminatory practices. The book asserts how barriers that block certain people's access to reproductive technologies are often founded on biases rooted in notions of class, race, and marital status. As a result, poor, minority, unmarried, disabled, and LGBT individuals are denied technologies available to well-off nonminority heterosexual applicants. An original argument on a highly emotional and important issue, this work offers a surprising departure from more familiar arguments on the issue as it warns physicians, government agencies, and the general public against repeating the mistakes of the past.Less

Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture, 1800-1877

Amalia D. Kessler

It is widely accepted that American procedure—and indeed American legal culture as a whole—are adversarial (and distinctively so). Yet, precisely because this assumption is so deep-rooted, we have ... More

It is widely accepted that American procedure—and indeed American legal culture as a whole—are adversarial (and distinctively so). Yet, precisely because this assumption is so deep-rooted, we have no history of how American adversarialism arose. This book provides such a history. It shows that the United States long employed not only lawyer-empowering adversarial procedure, but also various forms of more judge-dependent, quasi-inquisitorial procedure—including the equity tradition borrowed from England and, to a lesser extent, conciliation courts transplanted from continental Europe. However, the United States largely abandoned quasi-inquisitorial procedure by the close of the Civil War and Reconstruction, committing itself to lawyer-driven adversarialism. In explaining this turn to the adversarial, the book looks to developments both internal and external to the law. Among the key internalist factors on which the book focuses are the rise of the previously unknown category of “procedure”, as well as a set of seemingly small changes in the approach to taking testimony before equity-court officials known as masters in chancery, which ended up having unintended systemic consequences. So, too, from a more externalist perspective, the book traces how advocacy of adversarialism became intimately linked with demands for a largely unregulated market and the preservation of white supremacy. The product of deep-rooted inheritances, as well as more immediate and contingent occurrences, the nineteenth-century embrace of adversarsarialism would prove deeply consequential, shaping Americans’ experience of the law down to the present, often in ways that constrain rather than expand access to justice.Less

The Face That Launched a Thousand Lawsuits: The American Women Who Forged a Right to Privacy

Jessica Lake

The advent of the photographic and cinematic camera in the mid to late 19th century caused new harms to individuals (particularly women), which existing laws (copyright, defamation, trespass) were ... More

The advent of the photographic and cinematic camera in the mid to late 19th century caused new harms to individuals (particularly women), which existing laws (copyright, defamation, trespass) were inadequate to address. This book demonstrates that women forged a ‘right to privacy’ in the United States by bringing lawsuits claiming control and ownership over filmed images (still and moving) of their faces, bodies and narratives. At a time when they still lacked civil and political rights, women employed ‘a right to privacy’ to prevent themselves being reduced to nameless ‘pretty’ objects; to protest the transformation of their bodies into spectacles of ‘monstrosity’; to limit their exposure on the big screen to the mass ‘gaze’ of audiences; to control the development of their careers in paid work as models, dancers and actresses; and to reclaim their personal life stories from exploitation by film studios. Case documents also reveal the nexus between privacy claims and arguments by the subjects of images for property rights in them (eventuating in the right to publicity). This book interrogates the gender of privacy law and shows how privacy emerged as an ambiguous claim for women – it both reinforced traditional stereotypes of femininity or womanhood and progressed the feminist aspirations of the New Woman for greater self-determination and self-articulation. It shows that visual crimes against women occurring today via the Internet, such as revenge pornography or non-consensual pornography, have an important legal, social and political history.Less