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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.

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 offers a constitutional and historical survey of American territorial expansion from the founding era to the present day. The authors describe the Constitution's design for territorial acquisition and governance, and examine the ways in which practice over the past two hundred years has diverged from that original vision. Noting that most of America's territorial acquisitions—including the Louisiana Purchase, the Alaska Purchase, and the territory acquired after the Mexican–American and Spanish–American wars—resulted from treaties, they elaborate a Jeffersonian-based theory of the federal treaty power and assess American territorial acquisitions from this perspective. The authors find that at least one American acquisition of territory and many of the basic institutions of territorial governance have no constitutional foundation, and explore the often strange paths which constitutional law has traveled to permit such deviations from the Constitution's original meaning.

The United States Constitution's provisions for selecting, replacing, and punishing presidents contain serious weaknesses that could lead to constitutional controversies. This book envisions six such controversies, such as the criminal prosecution of a sitting president, a two-term president's attempt to stay in power, the ousting of an allegedly disabled president, and more. None of these things has ever occurred, but in recent years many of them almost have. Besides being individually dramatic, these controversies provide an opportunity to think about how constitutional procedures can best be designed, interpreted, and repaired. Also, because the events described would all carry enormous political consequences, they shed light on the delicate and complicated balance between law and politics in American government.

This book contrasts the European “centralized” constitutional court model, in which one court system is used to adjudicate constitutional questions, with a decentralized model, such as that of the United States, in which courts deal with both constitutional and nonconstitutional questions. The book's systematic exploration of the reasons for and against the creation of constitutional courts is detailed and it offers an ambitious theory to justify the European preference for them. Based on extensive research on eighteen European countries, the book finds that centralized review fits well with the civil law tradition and structures of ordinary adjudication in those countries. It concludes that, while the decentralized model works for the United States, there is more than one way to preserve democratic values and that these values are best preserved in the parliamentary democracies of Europe through constitutional courts.

It is commonly assumed that parents have long enjoyed a fundamental legal right to control the upbringing of their children, but this reading of the law is sorely incomplete. What is deeply rooted in our legal traditions is the idea that the state entrusts parents with custody of the child, and the concomitant rule that the state does so only as long as parents meet their legal duty to take proper care of the child. This book looks at four related areas of the law: parental custody, state regulation of education, religion and parental rights, and nonparental third party rights. In each it is argued that, historically, the authority of the parent has been treated as a sacred trust, a delegation of state power made on the presumption that it will be employed to promote the eventual enfranchisement of the child; that the emergence of a rights orientation has threatened to uncouple the traditional linkage of rights and responsibilities, subordinating the best interests of the child and the legitimate needs of the state to parental preferences; and that a renewed reliance on the trust model of parentchild relations would better serve both the developing personhood of the child and the civil society to which he or she belongs. In each area of the law, we face the same historical reality: It is the rights orientation that breaks with deeply rooted legal traditions and cultural values, rejecting time-honored trust principles of family law meant to protect both private and public interests.

Despite being commonplace in American households a generation ago, corporal punishment of children has been subjected to criticism and shifting attitudes in recent years. Many school districts have banned it, and many child advocates recommend that parents no longer spank or strike their children. This book taps into the expertise of social science scholars and researchers who address issues of corporal punishment, a subject that is now characterized as a key issue in child welfare. The chapters discuss corporal punishment, its use, causes, and consequences, drawing on a wide array of comparative, psychological, and sociological theories. Together, they clarify the analytical issues and lay a strong foundation for future research and interdisciplinary collaboration.

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.

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.

This book explores the emergence of a specifically Spanish concept of community in both Spain and Spanish America in the eighteenth century. Challenging the assumption that communities were the natural result of common factors such as language or religion, or that they were artificially imagined, it reexamines early modern categories of belonging. The book argues that the distinction between those who were Spaniards and those who were foreigners came about as local communities distinguished between immigrants who were judged to be willing to take on the rights and duties of membership in that community and those who were not.

This book examines how political elites used high levels of voter ignorance to create a new sort of regulatory state with lasting implications for American politics. Focusing on the expansion of bureaucratic authority in late-nineteenth-century America, the book's archival research examines electoral politics, the Treasury Department's control over monetary policy, and the Interstate Commerce Commission's regulation of railroads to examine how conservative politicians created a new type of bureaucratic state to insulate policy decisions from popular control.

This book explores democracy in the United States from a variety of perspectives. A dozen contributors consider the nature and prospects of democracy as it relates to the American experience—free markets, religion, family life, the Cold War, higher education, and more. The chapters bring American democracy into fresh focus, complete with its idealism, its moral greatness, its disappointments, and its contradictions. Based on DeVane lectures delivered at Yale University, these writings examine large themes and ask important questions: Why do democratic societies, and the United States in particular, tolerate profound economic inequality? Has the United States ever been truly democratic? How has democratic aspiration influenced the development of practices as diverse as education, religious worship, and family life? The book aims to aid in understanding of what democracy has meant in the past, how it functions now, and what its course may be in the future.

When it was published twenty-five years ago, Catharine MacKinnon's pathbreaking work Sexual Harassment of Working Women had a major impact on the development of sexual harassment law. The U.S. Supreme Court accepted her theory of sexual harassment in 1986. Here MacKinnon collaborates with eminent authorities to appraise what has been accomplished in the field and what still needs to be done. An introductory essay by Reva Siegel considers how sexual harassment came to be regulated as sex discrimination. Contributors discuss how law can best address sexual harassment, the importance and definition of consent and unwelcomeness, issues of same-sex harassment, questions of institutional responsibility for sexual harassment in both employment and education settings, considerations of freedom of speech, effects of sexual harassment doctrine on gender and racial justice, and transnational approaches to the problem. An afterword by MacKinnon assesses the changes wrought by sexual harassment law in the past quarter-century.

This book presents a theory of the First Amendment's development. During the twentieth century, Americans gained trust in its commitments, turned the First Amendment into an instrument for social progress, and exercised their rhetorical freedom to create a common language of rights. The book explains that the guarantees of the First Amendment have become part of a governing culture and nationwide priority. Examining the rhetorical tactics of activists, presidents, and lawyers, it illustrates how committed citizens seek to promote or destabilize a convergence in constitutional ideas. The book reveals the social and institutional processes through which foundational ideas are generated and defends a cultural role for the courts.

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.

Erasmus's Adages—a vast collection of the proverbial wisdom of Greek and Roman antiquity—was published in 1508 and became one of the most influential works of the Renaissance. It also marked a turning point in the history of Western thinking about literary property. At once a singularly successful commercial product of the new printing industry and a repository of intellectual wealth, the Adages looks ahead to the development of copyright and back to an ancient philosophical tradition that ideas should be universally shared in the spirit of friendship. This book focuses on both the commitment to friendship and common property that Erasmus shares with his favorite philosophers—Pythagoras, Plato, and Christ—and the early history of private property that gradually transformed European attitudes concerning the right to copy. In the process it accounts for the peculiar shape of Erasmus's collection of more than 3,000 proverbs and provides readings of such ancient philosophical and religious thinkers as Pythagoras, Plato, Aristotle, Cicero, Iamblichus, Tertullian, Basil, Jerome, and Augustine.

In a concise, compelling argument, one of the founders and most influential advocates of the law and economics movement divides the subject into two separate areas, which are identified with Jeremy Bentham and John Stuart Mill. The first, Benthamite, strain, “economic analysis of law,” examines the legal system in the light of economic theory and shows how economics might render law more effective. The second strain, law and economics, gives equal status to law, and explores how the more realistic, less theoretical discipline of law can lead to improvements in economic theory. It is the latter approach that this book advocates.

Sex discrimination in employment has been prohibited by federal law since the passage of the Civil Rights Act of 1964. When the Act was passed, its target was clear. It sought to end women’s exclusion from particular jobs and to challenge their relegation to a “pink collar” ghetto. In recent years, courts have interpreted Title VII’s prohibition on sex discrimination in increasingly expansive ways. Not only are workers protected from discrimination based on their biological sex, they are increasingly protected from discrimination based on the ways they express their gender identity. Men perceived as inappropriately feminine, women perceived as inappropriately masculine, and transsexuals are winning protection from workplace demands that they conform to the dominant social norms of their sex. In Gender Nonconformity and the Law, Kimberly Yuracko examines the values, beliefs, and principles that are motivating these changes and explores their implications for antidiscrimination law, workplace equality, and social conceptions of gender more broadly.

The entity that became the Yale Law School started life early in the nineteenth century as a proprietary school, operated as a sideline by a couple of New Haven lawyers. The New Haven school affiliated with Yale in the 1820s, but it remained so frail that in 1845 and again in 1869 the University seriously considered closing it down. From these humble origins, the Yale Law School went on to become the most influential of American law schools. In the later nineteenth century the School instigated the multidisciplinary approach to law that has subsequently won nearly universal acceptance. In the 1930s the Yale Law School became the center of the jurisprudential movement known as legal realism, which has ever since shaped American law. In the second half of the twentieth century, Yale brought the study of constitutional and international law to prominence, overcoming the emphasis on private law that had dominated American law schools. By the end of the twentieth century, Yale was widely acknowledged as the nation's leading law school. The chapters in this collection trace these notable developments. They originated as a lecture series convened to commemorate the tercentenary of Yale University. A group of scholars assembled to explore the history of the School from the earliest days down to modern times. The book preserves the format of the original lectures, supported with full scholarly citations.

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?