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  Commentary: The Best Time of Your Life: Reflections on the Myth of Moral Progress and the Continuing Evolution of Civil Rights Law

  Austin Sarat and Ronald J. Krotoszynski Jr.

  Civil Rights in the American Story charts the ambiguous and contested meanings of civil rights in law and culture and confronts a variety of important questions about race in contemporary America. How important is civil rights in America's story of possibility and change? How has it transformed the very meaning of citizenship and identity in American culture? Why does the subject of race continue to haunt the American imagination and continue to play such a large role in political and legal debates? Do affirmative action and multiculturalism promise a way out of racial polarization, or do they sharpen and deepen it? Are there new and better ways to frame our commitment to equal justice? This book brings together the work of five distinguished scholars to critically assess the place of civil rights in the American story. It offers different ways of talking about civil rights and different frames through which we can address issues of civil rights in the future.

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  Commentary: Race Law Cases in the American Story: Adoptive Couple v. Baby Girl

  Austin Sarat and Grace S. Lee

  Civil Rights in the American Story charts the ambiguous and contested meanings of civil rights in law and culture and confronts a variety of important questions about race in contemporary America. How important is civil rights in America's story of possibility and change? How has it transformed the very meaning of citizenship and identity in American culture? Why does the subject of race continue to haunt the American imagination and continue to play such a large role in political and legal debates? Do affirmative action and multiculturalism promise a way out of racial polarization, or do they sharpen and deepen it? Are there new and better ways to frame our commitment to equal justice? This book brings together the work of five distinguished scholars to critically assess the place of civil rights in the American story. It offers different ways of talking about civil rights and different frames through which we can address issues of civil rights in the future.

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  Commentary: What Line?

  Austin Sarat and Fredrick E. Vars

  Civil Rights in the American Story charts the ambiguous and contested meanings of civil rights in law and culture and confronts a variety of important questions about race in contemporary America. How important is civil rights in America's story of possibility and change? How has it transformed the very meaning of citizenship and identity in American culture? Why does the subject of race continue to haunt the American imagination and continue to play such a large role in political and legal debates? Do affirmative action and multiculturalism promise a way out of racial polarization, or do they sharpen and deepen it? Are there new and better ways to frame our commitment to equal justice? This book brings together the work of five distinguished scholars to critically assess the place of civil rights in the American story. It offers different ways of talking about civil rights and different frames through which we can address issues of civil rights in the future.

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  Religious Institutionalism - Why Now?

  Micah Schwartzman, Chad Flanders, Zoë Robinson, Paul Horwitz, and Nelson Tebbe

  What are the rights of religious institutions? Should those rights extend to for-profit corporations? These questions are now the subject of significant controversy. In the United States, churches have long asserted claims to institutional autonomy, especially with respect to laws interferring with their internal governance. Faith-based nonprofits have claimed similar rights, and now for-profit corporations have as well, with the Supreme Court vindicating their rights in the landmark decision, Burwell v. Hobby Lobby Stores, Inc. This book explores the corporate turn in law and religion. Part I addresses the shift from individual to institutional accounts of religious liberty, focusing on “freedom of the church” in the context of the Supreme Court’s decision in Hosanna-Tabor Lutheran Church & School v. EEOC, involving the constitutional foundations of the “ministerial exception” to antidiscrimination laws. Part II marks the transition from claims of church autonomy to corporate rights of religious free exercise. Part III looks at the implications of the Court’s decision in Hobby Lobby for same-sex marriage, health care, and religious freedom. Part IV presents various legal, moral, and philosophical challenges to corporate religious liberty.

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  Constitutionalism

  Mark Brandon, Mark Tushnet, Mark A. Graber, and Sanford Levinson

  This book provides a comprehensive guide to the United States Constitution. It examines constitutional developments based on a periodization scheme that partly reflects important changes in constitutional governance, from the Jacksonian Era to the beginning of the 1980s. The book’s general historical institutionalist orientation blurs precise distinctions between political science and law, with particular reference to the role of political parties, interest groups, and bureaucrats in operating a constitution designed to prevent the rise of parties, interest-group politics, and an entrenched bureaucracy. The book also considers exertions of power by the Supreme Court, along with the national executive and Congress. There are chapters on federalism as well as liberty, property, religion, free expression and free press, criminal procedure, habeas corpus, and the right to bear arms. In addition, the book discusses Native Americans, race, gender, and citizenship to illustrate contemporary constitutional struggles for equality; the constitutional status of international law, constitutionalism, and constitutional authority; and how, at a time of increasing globalization, people living in the United States can continue to be governed by a constitution meant for a society greatly separated from the rest of the “civilized world.”

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  International Legal Limits on the Ability of States to Lawfully Impose International Economic/Financial Sanctions

  Ali Z. Marossi, Marisa R. Bassett, and Daniel H. Joyner

  Since the Second World War, States have increasingly relied upon economic sanctions programs, in lieu of military action, to exert pressure and generally to fill the awkward gap between verbal denunciation and action. Whether or not sanctions are effective remains a point of contention among policymakers. Frequently asked questions include whether any legal order constrains the use of sanctions, and, if so, what the limits on the use of sanctions are. This volume gathers contributions from leading experts in various relevant fields providing a seminal study on the limits of economic sanctions under international law, including accountability mechanisms when sanctioning States go too far. Where there are gaps in the law, the authors provide novel and important contributions as to how existing legal structures can be used to ensure that economic sanctions remain within an accepted legal order.

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  The legal meaning and implications of Article VI of the Non-Proliferation Treaty

  Gro Nystuen, Stuart Casey-Maslen, Annie Golden Bersagel, and Daniel H. Joyner

  Nuclear Weapons under International Law is a comprehensive treatment of nuclear weapons under key international law regimes. It critically reviews international law governing nuclear weapons with regard to the inter-state use of force, international humanitarian law, human rights law, disarmament law, and environmental law, and discusses where relevant the International Court of Justice's 1996 Advisory Opinion. Unique in its approach, it draws upon contributions from expert legal scholars and international law practitioners who have worked with conventional and non-conventional arms control and disarmament issues. As a result, this book embraces academic consideration of legal questions within the context of broader political debates about the status of nuclear weapons under international law.

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  The Implications of the Proliferation of Weapons of Mass Destruction for the Prohibition of the Use of Force

  Marc Weller and Daniel H. Joyner

  The prohibition of the use of force in international law is one of the major achievements of international law in the past century. The attempt to outlaw war as a means of national policy and to establish a system of collective security after both World Wars resulted in the creation of the United Nations Charter, which remains a principal point of reference for the law on the use of force to this day. There have, however, been considerable challenges to the law on the prohibition ofThe prohibition of the use of force in international law is one of the major achievements of international law in the past century. The attempt to outlaw war as a means of national policy and to establish a system of collective security after both World Wars resulted in the creation of the United Nations Charter, which remains a principal point of reference for the law on the use of force to this day. There have, however, been considerable challenges to the law on the prohibition of the use of force over the past two decades.
  
  This Oxford Handbook is a comprehensive and authoritative study of the modern law on the use of force. Over seventy experts in the field offer a detailed analysis, and to an extent a restatement, of the law in this area. The Handbook reviews the status of the law on the use of force, and assesses what changes, if any, have occurred in consequence to recent developments. It offers cutting-edge and up-to-date scholarship on all major aspects of the prohibition of the use of force. The work is set in context by an extensive introductory section, reviewing the history of the subject, recent challenges, and addressing major conceptual approaches. Its second part addresses collective security, in particular the law and practice of the United Nations organs, and of regional organizations and arrangements. It then considers the substance of the prohibition of the use of force, and of the right to self-defence and associated doctrines. The next section is devoted to armed action undertaken on behalf of peoples and populations. This includes self-determination conflicts, resistance to armed occupation, and forcible humanitarian and pro-democratic action. The possibility of the revival of classical, expansive justifications for the use of force is then addressed. This is matched by a final section considering new security challenges and the emerging law in relation to them. Finally, the key arguments developed in the book are tied together in a substantive conclusion. The Handbook will be essential reading for scholars and students of international law and the use of force, and legal advisers to both government and NGOs.

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  Government for the Time Being

  Austin Sarat and William S. Brewbaker III

  There is an enormous scholarly literature on law's treatment of religion. Most scholars now recognize that although the U.S. Supreme Court has not offered a consistent interpretation of what “non-establishment” or religious freedom means, as a general matter it can be said that the First Amendment requires that government not give preference to one religion over another or, although this is more controversial, to religion over non-belief. But these rules raise questions that will be addressed in Legal Responses to Religious Practices in the United States: Namely, what practices constitute a “religious activity” such that it cannot be supported or funded by government? And what is a religion, anyway? How should law understand matters of faith and accommodate religious practices?

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  Commentary: A Record but No Truth? Recording and Re-recording Trauma in the Real-Life Struggle for Civil Rights

  Austin Sarat and Montre' D. Carodine

  In Knowing the Suffering of Others, legal scholar Austin Sarat brings together essays that address suffering as it relates to the law, highlighting the ways law imagines suffering and how pain and suffering become jurisprudential facts.
  
  From fetal imaging to end-of-life decisions, torts to international human rights, domestic violence to torture, and the law of war to victim impact statements, the law is awash in epistemological and ethical problems associated with knowing and imagining suffering. In each of these domains we might ask: How well do legal actors perceive and understand suffering in such varied domains of legal life? What problems of representation and interpretation bedevil efforts to grasp the suffering of others? What historical, political, literary, cultural, and/or theological resources can legal actors and citizens draw on to understand the suffering of others?
  
  In Knowing the Suffering of Others, Austin Sarat presents legal scholarship that explores these questions and puts the problem of suffering at the center of thinking about law. The contributors to this volume do not regard pain and suffering as objective facts of a universe remote from law; rather they examine how both are discursively constructed in and by law. They examine how pain and suffering help construct and give meaning to the law as we know it. The authors attend to the various ways suffering appears in law as well as the different forms of suffering that require the law’s attention.
  
  Throughout this book law is regarded as a domain in which the meanings of pain and suffering are contested, and constituted, as well as an instrument for inflicting suffering or for providing or refusing its relief. It challenges scholars, lawyers, students, and policymakers to ask how various legal actors and audiences understand the suffering of others.

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  Comment on Chapter 2: Animus-Supported Argument versus Animus-Supported Standing

  Austin Sarat and Heather Elliott

  Dissenting Voices in American Society: The Role of Judges, Lawyers, and Citizens explores the status of dissent in the work and lives of judges, lawyers, and citizens, and in our institutions and culture. It brings together under the lens of critical examination dissenting voices that are usually treated separately: the protester, the academic critic, the intellectual, and the dissenting judge. It examines the forms of dissent that institutions make possible and those that are discouraged or domesticated. This book also describes the kinds of stories that dissenting voices try to tell and the narrative tropes on which those stories depend. In what voices and tones do dissenting voices speak? What worlds does dissent try to imagine and what in the end is the value of dissent? Where does dissent speak without actually speaking? Where do dissenting voices most often go unheard or unrecognized? Do we find dissent wherever we find discontent? Wherever we find expression? This book is the product of an integrated series of symposia at the University of Alabama School of Law. These symposia bring leading scholars into colloquy with faculty at the law school on subjects at the cutting edge of interdisciplinary inquiry in law.

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  Comment on Chapter 3: Silencing by Exclusion: A Reaction to Anonymous: On Silence and the Public Sphere

  Austin Sarat and Heather Elliott

  Rather than abstract philosophical discussion or yet another analysis of legal doctrine, Speech and Silence in American Law seeks to situate speech and silence, locating them in particular circumstances and contexts and asking how context matters in facilitating speech or demanding silence. To understand speech and silence we have to inquire into their social life and examine the occasions and practices that call them forth and that give them meaning. Among the questions addressed in this book are, Who is authorized to speak? And what are the conditions that should be attached to the speaking subject? Are there occasions that call for speech and others that demand silence? What is the relationship between the speech act and the speaker? Taking these questions into account helps readers understand what compels speakers and what problems accompany speech without a known speaker, allowing us to assess how silence speaks and how speech renders the silent more knowable.

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  Afterword: Civility and the Politics of Sexuality

  Austin Sarat, Heather Elliott, and Gerald Lunn

  Throughout American history, the discourse of civility has proven quite resilient, and concern for a perceived lack of civility has ebbed and flowed in recognizable patterns. Today we are in another era in which political leaders and commentators bemoan a crisis of incivility and warn of civility's demise. Civility, Legality, and the Limits of Justice charts the uses of civility in American legal and political discourse. How important is civility as a legal and political virtue? How does it fare when it is juxtaposed with the claim that it masks injustice? Who advocates civility and to what effect? How are battles over civility played out in legal and political arenas? This book brings the work of several distinguished scholars together to critically assess the relative claims of civility and justice and the way law weighs those virtues.

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  Commentary: Knowing the Suffering of Others: A Commentary on Jeannie Suk's "Laws of Trauma"

  Austin Sarat and Bryan K. Fair

  In Knowing the Suffering of Others, legal scholar Austin Sarat brings together essays that address suffering as it relates to the law, highlighting the ways law imagines suffering and how pain and suffering become jurisprudential facts.
  
  From fetal imaging to end-of-life decisions, torts to international human rights, domestic violence to torture, and the law of war to victim impact statements, the law is awash in epistemological and ethical problems associated with knowing and imagining suffering. In each of these domains we might ask: How well do legal actors perceive and understand suffering in such varied domains of legal life? What problems of representation and interpretation bedevil efforts to grasp the suffering of others? What historical, political, literary, cultural, and/or theological resources can legal actors and citizens draw on to understand the suffering of others?
  
  In Knowing the Suffering of Others, Austin Sarat presents legal scholarship that explores these questions and puts the problem of suffering at the center of thinking about law. The contributors to this volume do not regard pain and suffering as objective facts of a universe remote from law; rather they examine how both are discursively constructed in and by law. They examine how pain and suffering help construct and give meaning to the law as we know it. The authors attend to the various ways suffering appears in law as well as the different forms of suffering that require the law’s attention.
  
  Throughout this book law is regarded as a domain in which the meanings of pain and suffering are contested, and constituted, as well as an instrument for inflicting suffering or for providing or refusing its relief. It challenges scholars, lawyers, students, and policymakers to ask how various legal actors and audiences understand the suffering of others.

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  Comment on Chapter 4: Why Dissent Isn't Free: A Commentary on Pildes's "The Legal Academy and the Temptations of Power"

  Austin Sarat and Bryan K. Fair

  Dissenting Voices in American Society: The Role of Judges, Lawyers, and Citizens explores the status of dissent in the work and lives of judges, lawyers, and citizens, and in our institutions and culture. It brings together under the lens of critical examination dissenting voices that are usually treated separately: the protester, the academic critic, the intellectual, and the dissenting judge. It examines the forms of dissent that institutions make possible and those that are discouraged or domesticated. This book also describes the kinds of stories that dissenting voices try to tell and the narrative tropes on which those stories depend. In what voices and tones do dissenting voices speak? What worlds does dissent try to imagine and what in the end is the value of dissent? Where does dissent speak without actually speaking? Where do dissenting voices most often go unheard or unrecognized? Do we find dissent wherever we find discontent? Wherever we find expression? This book is the product of an integrated series of symposia at the University of Alabama School of Law. These symposia bring leading scholars into colloquy with faculty at the law school on subjects at the cutting edge of interdisciplinary inquiry in law.

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  Freedom of Speech, Equal Citizenship, and the Anticaste Principle: A Commentary on Regulating Hate Speech

  Austin Sarat and Bryan K. Fair

  There is an enormous scholarly literature on law's treatment of religion. Most scholars now recognize that although the U.S. Supreme Court has not offered a consistent interpretation of what “non-establishment” or religious freedom means, as a general matter it can be said that the First Amendment requires that government not give preference to one religion over another or, although this is more controversial, to religion over non-belief. But these rules raise questions that will be addressed in Legal Responses to Religious Practices in the United States: Namely, what practices constitute a “religious activity” such that it cannot be supported or funded by government? And what is a religion, anyway? How should law understand matters of faith and accommodate religious practices?

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  Comment on Chapter 4: Anonymity, Signaling, and Silence as Speech

  Austin Sarat and Paul Horwitz

  Rather than abstract philosophical discussion or yet another analysis of legal doctrine, Speech and Silence in American Law seeks to situate speech and silence, locating them in particular circumstances and contexts and asking how context matters in facilitating speech or demanding silence. To understand speech and silence we have to inquire into their social life and examine the occasions and practices that call them forth and that give them meaning. Among the questions addressed in this book are, Who is authorized to speak? And what are the conditions that should be attached to the speaking subject? Are there occasions that call for speech and others that demand silence? What is the relationship between the speech act and the speaker? Taking these questions into account helps readers understand what compels speakers and what problems accompany speech without a known speaker, allowing us to assess how silence speaks and how speech renders the silent more knowable.

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  Law, Religion, and Kissing Your Sister

  Austin Sarat and Paul Horwitz

  There is an enormous scholarly literature on law's treatment of religion. Most scholars now recognize that although the U.S. Supreme Court has not offered a consistent interpretation of what “non-establishment” or religious freedom means, as a general matter it can be said that the First Amendment requires that government not give preference to one religion over another or, although this is more controversial, to religion over non-belief. But these rules raise questions that will be addressed in Legal Responses to Religious Practices in the United States: Namely, what practices constitute a “religious activity” such that it cannot be supported or funded by government? And what is a religion, anyway? How should law understand matters of faith and accommodate religious practices?

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  Afterword: Responding to a World Without Privacy: On the Potential Merits of a Comparative Law Perspective

  Austin Sarat and Ronald J. Krotoszynski Jr.

  Recent revelations about America's National Security Agency offer a stark reminder of the challenges posed by the rise of the digital age for American law. These challenges refigure the meaning of autonomy and the meaning of the word “social” in an age of new modalities of surveillance and social interaction, as well as new reproductive technologies and the biotechnology revolution. Each of these developments seems to portend a world without privacy, or at least a world in which the meaning of privacy is radically transformed, both as a legal idea and a lived reality. Each requires us to rethink the role that law can and should play in responding to today's threats to privacy. Can the law keep up with emerging threats to privacy? Can it provide effective protection against new forms of surveillance? This book offers some answers to these questions. It considers several different understandings of privacy and provides examples of legal responses to the threats to privacy associated with new modalities of surveillance, the rise of digital technology, the excesses of the Bush and Obama administrations, and the continuing war on terror.

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  Comment on Chapter 2: Resignations, the (Quasi) Plural Executive, and a Critical Assessment of the Unitary Executive Theory

  Austin Sarat and Ronald J. Krotoszynski Jr.

  Rather than abstract philosophical discussion or yet another analysis of legal doctrine, Speech and Silence in American Law seeks to situate speech and silence, locating them in particular circumstances and contexts and asking how context matters in facilitating speech or demanding silence. To understand speech and silence we have to inquire into their social life and examine the occasions and practices that call them forth and that give them meaning. Among the questions addressed in this book are, Who is authorized to speak? And what are the conditions that should be attached to the speaking subject? Are there occasions that call for speech and others that demand silence? What is the relationship between the speech act and the speaker? Taking these questions into account helps readers understand what compels speakers and what problems accompany speech without a known speaker, allowing us to assess how silence speaks and how speech renders the silent more knowable.

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  Comment on Chapter 5: Questioning the Value of Dissent and Free Speech More Generally: American Skepticism of Government and the Protection of Low-Value Speech

  Austin Sarat and Ronald J. Krotoszynski Jr.

  Dissenting Voices in American Society: The Role of Judges, Lawyers, and Citizens explores the status of dissent in the work and lives of judges, lawyers, and citizens, and in our institutions and culture. It brings together under the lens of critical examination dissenting voices that are usually treated separately: the protester, the academic critic, the intellectual, and the dissenting judge. It examines the forms of dissent that institutions make possible and those that are discouraged or domesticated. This book also describes the kinds of stories that dissenting voices try to tell and the narrative tropes on which those stories depend. In what voices and tones do dissenting voices speak? What worlds does dissent try to imagine and what in the end is the value of dissent? Where does dissent speak without actually speaking? Where do dissenting voices most often go unheard or unrecognized? Do we find dissent wherever we find discontent? Wherever we find expression? This book is the product of an integrated series of symposia at the University of Alabama School of Law. These symposia bring leading scholars into colloquy with faculty at the law school on subjects at the cutting edge of interdisciplinary inquiry in law.

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  Comment on Chapter 1: Our Word (or the Lack Thereof) Is Our Bond: The Regulation of Silence under Contract Law

  Austin Sarat and Grace S. Lee

  Rather than abstract philosophical discussion or yet another analysis of legal doctrine, Speech and Silence in American Law seeks to situate speech and silence, locating them in particular circumstances and contexts and asking how context matters in facilitating speech or demanding silence. To understand speech and silence we have to inquire into their social life and examine the occasions and practices that call them forth and that give them meaning. Among the questions addressed in this book are, Who is authorized to speak? And what are the conditions that should be attached to the speaking subject? Are there occasions that call for speech and others that demand silence? What is the relationship between the speech act and the speaker? Taking these questions into account helps readers understand what compels speakers and what problems accompany speech without a known speaker, allowing us to assess how silence speaks and how speech renders the silent more knowable.

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  Commentary: Taming Suffering

  Austin Sarat and Meredith Render

  In Knowing the Suffering of Others, legal scholar Austin Sarat brings together essays that address suffering as it relates to the law, highlighting the ways law imagines suffering and how pain and suffering become jurisprudential facts.
  
  From fetal imaging to end-of-life decisions, torts to international human rights, domestic violence to torture, and the law of war to victim impact statements, the law is awash in epistemological and ethical problems associated with knowing and imagining suffering. In each of these domains we might ask: How well do legal actors perceive and understand suffering in such varied domains of legal life? What problems of representation and interpretation bedevil efforts to grasp the suffering of others? What historical, political, literary, cultural, and/or theological resources can legal actors and citizens draw on to understand the suffering of others?
  
  In Knowing the Suffering of Others, Austin Sarat presents legal scholarship that explores these questions and puts the problem of suffering at the center of thinking about law. The contributors to this volume do not regard pain and suffering as objective facts of a universe remote from law; rather they examine how both are discursively constructed in and by law. They examine how pain and suffering help construct and give meaning to the law as we know it. The authors attend to the various ways suffering appears in law as well as the different forms of suffering that require the law’s attention.
  
  Throughout this book law is regarded as a domain in which the meanings of pain and suffering are contested, and constituted, as well as an instrument for inflicting suffering or for providing or refusing its relief. It challenges scholars, lawyers, students, and policymakers to ask how various legal actors and audiences understand the suffering of others.

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  Religious Practice and Sex Discrimination: An Uneasy Case for Tolerance

  Austin Sarat and Meredith Render

  There is an enormous scholarly literature on law's treatment of religion. Most scholars now recognize that although the U.S. Supreme Court has not offered a consistent interpretation of what “non-establishment” or religious freedom means, as a general matter it can be said that the First Amendment requires that government not give preference to one religion over another or, although this is more controversial, to religion over non-belief. But these rules raise questions that will be addressed in Legal Responses to Religious Practices in the United States: Namely, what practices constitute a “religious activity” such that it cannot be supported or funded by government? And what is a religion, anyway? How should law understand matters of faith and accommodate religious practices?

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  Comment on Chapter 5: Torture and Miranda

  Austin Sarat and Fredrick E. Vars

  Rather than abstract philosophical discussion or yet another analysis of legal doctrine, Speech and Silence in American Law seeks to situate speech and silence, locating them in particular circumstances and contexts and asking how context matters in facilitating speech or demanding silence. To understand speech and silence we have to inquire into their social life and examine the occasions and practices that call them forth and that give them meaning. Among the questions addressed in this book are, Who is authorized to speak? And what are the conditions that should be attached to the speaking subject? Are there occasions that call for speech and others that demand silence? What is the relationship between the speech act and the speaker? Taking these questions into account helps readers understand what compels speakers and what problems accompany speech without a known speaker, allowing us to assess how silence speaks and how speech renders the silent more kn