Browse

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.

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.

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.

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.

The advent of the photographic and cinematic camera in the mid to late 19^th 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.

In America today, a public official's lawful income consists of a salary. But until a century ago, the law frequently authorized officials to make money on a profit-seeking basis. Prosecutors won a fee for each defendant convicted. Tax collectors received a cut of each evasion uncovered. Naval officers took a reward for each ship sunk. The list goes on. This book is the first to document American government's “for-profit” past, to discover how profit-seeking defined officials' relationship to the citizenry, and to explain how lawmakers—by banishing the profit motive in favor of the salary—transformed that relationship forever.

This book explores Native American claims against the United States government over the past two centuries. Despite the federal government's multiple attempts to redress indigenous claims, a close examination reveals that even when compensatory programs were instituted, Native peoples never attained a genuine sense of justice. The book addresses the important question of what one nation owes another when the balance of rights, resources, and responsibilities has been negotiated through treaties. How does the United States ensure that guarantees made to tribal nations, whether through a century-old treaty or a modern day contract, remain viable and lasting?

Making extensive use of archival and other primary sources, this book demonstrates that the development of the “appropriation doctrine,” a system of private rights in water, was part of a radical attack on monopoly and corporate power in the arid West. It describes how Colorado miners, irrigators, lawmakers, and judges forged a system of private property in water based on a desire to spread property and its benefits as widely as possible among independent citizens. The book demonstrates that ownership was not dictated by concerns for economic efficiency, but by a regard for social justice.

This book highlights the multiple, often overlooked, and frequently misunderstood connections between land use and development policies and policing practices. In order to do so, it draws upon multiple literatures—especially law, history, economics, sociology, and psychology—as well as concrete case studies to better explore how these policy arenas, generally treated as completely unrelated, intersect and conflict. The book identifies different types of urban “disorder,” some that may be precursors to serious crime and social deviancy, others that may be benign or even contribute positively to urban vitality. The book's unique approach—to analyze city policies through the lens of order and disorder—provides a clearer understanding, generally, of how cities work (and why they sometimes do not), and specifically, of what disorder is and how it affects city life.

Should the Boy Scouts of America and other noncommercial associations have a right to discriminate when selecting their members? Does the state have a legitimate interest in regulating the membership practices of private associations? These questions—raised by Boy Scouts of America v. Dale, in which the Supreme Court ruled that the Scouts had a right to expel gay members—are at the core of this book, an in-depth exploration of the tension between freedom of association and antidiscrimination law. The book demonstrates that the “right” to discriminate has a long and unpleasant history. The book brings together legal history, constitutional theory, and political philosophy to analyze how the law ought to deal with discriminatory private organizations.