David Hackett Souter:  Traditional Republican on the Rehnquist Court by Tinsley E. Yarbrough
Oxford ; New York : Oxford University Press, 2005
KF8745.S68 Y37 2005 Balcony

Of all the issues on the human rights agenda, torture offered Americans the moral highground. . . until this year. With the abuses at Abu Ghraib that led to accusations of torture within the domestic criminal justice system, the question of cruel and unusual treatment has taken on new urgency in the United States and elsewhere.

In Torture, twelve newly-written essays by leading thinkers and experts range over history and continents, offering a nuanced, up-to-the-minute exploration of this wrenching but timely topic, including, among others, Reed Brody on the road to Abu Ghraib and “ghost detainees”; Eitan Felner on the Israeli experience; Tom Malinowski on violations of State Department “forbidden practices” at Abu Ghraib and in Afghanistan; Kenneth Roth on the U.S. government’s shift from cover-up to justification; and Minky Worden on a global survey of torturing countries.

This new translation, the first in fifty years, is based on the full record of the trial proceedings in Latin. Recent scholarship dates this text to the year of the trial itself, thereby lending it a greater claim to authority than had traditionally been assumed. Contemporary documents copied into the trial furnish a guide to political developments in Joan's career from her capture to the attempts to control public opinion following her execution.

Daniel Hobbins sets the trial in its legal and historical context. In exploring Joan's place in fifteenth-century society, he suggests that her claims to divine revelation conformed to a recognizable profile of holy women in her culture, yet Joan broke this mold by embracing a military lifestyle. By combining the roles of visionary and of military leader, Joan astonished contemporaries and still fascinates us today.

Obscured by the passing of centuries and distorted by the lens of modern cinema, the story of the historical Joan of Arc comes vividly to life once again.

In most states the boundary separating public waters from private uplands—the ordinary high water line (OHWL)—is a flashpoint between proponents of either property rights or public-trust protection of our water. Using Florida as a case study, Down to the Waterline is the first book-length analysis of the OHWL doctrine and its legal, technical, and cultural underpinnings. Sara Warner not only covers the historical function of the OHWL but tells how advances in science and our environmental attitudes have led us to a more complex encounter with this ancient boundary.

Florida sees a steady influx of new residents who crowd along its extensive coasts and interior shorelines—yet who also demand pristine water resources. The OHWL establishes public access and private ownership limits on some of the state’s most valuable land: in economic terms, waterfront real estate; in ecological terms, marshes and wetlands. Sara Warner brings to life many of the courtroom battles fought over the OHWL through the perspectives of ranchers, outdoors enthusiasts, developers, surveyors, scientists, and policymakers.

While explaining the OHWL’s legal and political intricacies, Warner never loses sight of the wonder of herons wading a marsh or a largemouth bass breaking a smooth lake surface. To her the OHWL is not just an ideological battleground; it is a marker of how we see the natural world. What do we think we’re doing when we channel a river or fill a swamp? she asks—for it matters greatly where we focus our attention before invoking the awesome capabilities of technology.

The 1954 Brown v. Board of Education ruling was a watershed event in the fight against racial segregation in the United States. The recent fiftieth anniversary of Brown prompted a surge of tributes: books, television and radio specials, conferences, and speeches. At the same time, says James C. Cobb, it revealed a growing trend of dismissiveness and negativity toward Brown and other accomplishments of the civil rights movement. Writing as both a lauded historian and a white southerner from the last generation to grow up under southern apartheid, Cobb responds to what he sees as distortions of Brown’s legacy and their implied disservice to those whom it inspired and empowered.

Cobb begins by looking at how our historical understanding of segregation has evolved since the Brown decision. In particular, he targets the tenacious misconception that racial discrimination was at odds with economic modernization—and so would have faded out, on its own, under market pressures. He then looks at the argument that Brown energized white resistance more than it fomented civil rights progress. This position overstates the pace and extent of racial change in the South prior to Brown, Cobb says, while it understates Brown’s role in catalyzing and legitimizing subsequent black protest.

Finally, Cobb suggests that the Brown decree and the civil rights movement accomplished not only more than certain critics have acknowledged but also more than the hard statistics of black progress can reveal. The destruction of Jim Crow, with its “denial of belonging,” allowed African Americans to embrace their identity as southerners in ways that freed them to explore links between their southernness and their blackness. This is an important and timely reminder of “what the Brown court and the activists who took the spirit of its ruling into the streets were up against, both historically and contemporaneously.”

What do you call 600 lawyers at the bottom of the sea? Marc Galanter calls it an opportunity to investigate the meanings of a rich and time-honored genre of American humor: lawyer jokes. Lowering the Bar analyzes hundreds of jokes from Mark Twain classics to contemporary anecdotes about Dan Quayle, Johnnie Cochran, and Kenneth Starr. Drawing on representations of law and lawyers in the mass media, political discourse, and public opinion surveys, Galanter finds that the increasing reliance on law has coexisted uneasily with anxiety about the "legalization" of society. Informative and always entertaining, his book explores the tensions between Americans' deep-seated belief in the law and their ambivalence about lawyers.

"Two lawyers are sitting at a bar drinking when a stunning blonde in a skin-tight, low-cut dress slinks by. One of them stares for a minute, then turns to his buddy and says, 'Boy, would I like to screw her!'
The other lawyer asks, 'Out of what?'"

"An ancient, nearly blind old woman retained the local lawyer to draft her last will and testament, for which he charged her two hundred dollars. As she rose to leave, she took the money out of her purse and handed it to him, enclosing a third hundred dollar bill by mistake. Immediately the attorney realised he was faced with a crushing ethical question: Should he tell his partner?"

"Q: How many lawyers does it take to change a light bulb?
A: How many can you afford?"
—excerpts from Lowering the Bar

Under the pretext of "improving" society, a judge, lawyer, or fact-finder may rationalize turning a blind eye to faulty evidence and render a sanist decision. The pretext for this testimonial dishonesty is that the end result justifies the means. In cases involving the mentally disabled, these end results are founded on the prejudicial belief that the mentally disabled are not responsible or intelligent enough to deserve the full rights of citizenship. Perlin argues that these are sanist decisions, and explores the roots and results of these decisions.

This book provides the clearest and most complete account to date of the laws and politics of Indian gaming. Steven Light and Kathryn Rand explain how it has become one of today’s most politically charged phenomena: at stake are a host of competing legal rights and political interests for tribal, state, and federal governments. As Indian gaming grows, policymakers struggle with balancing its economic and social costs and benefits.

Light and Rand emphasize that tribal sovereignty is the very rationale that allows Indian gaming to exist, even though U.S. law subjects that sovereignty to strict congressional authority and compromised it even further through the Indian Gaming Regulatory Act of 1988. Their book describes Indian gaming and explores today’s hottest political issues, from the Pequots to the Plains Indians, with examples that reflect a wide range of tribal experience: from hugely successful casinos to gambling halls with small markets and low grosses to tribes that chose not to pursue gaming. Throughout, they contend that tribal sovereignty is the key to understanding Indian gaming law and politics and guiding policy reform—and that Indian gaming even represents a unique opportunity for the emergence of tribal self-determination.

As political pressure on tribes to concede to state interests grows, this book offers a practical approach to policy reform with specific recommendations for tribal, federal, state, and local policymakers. Meticulously argued, Indian Gaming and Tribal Sovereignty provides an authoritative look at one of today’s most vexing issues, showing that it’s possible to establish a level playing field for all concerned while recognizing the measure of sovereignty—and fairness—to which American Indians are entitled.

In 1963, West Germany was gripped by a dramatic trial of former guards who had worked at the Nazi death camp Auschwitz. It was the largest and most public trial to take place in the country and attracted international attention. Using the pretrial files and extensive trial audiotapes, Rebecca Wittmann offers a fascinating reinterpretation of Germany's first major attempt to confront its past.

Evoking the courtroom atmosphere, Wittmann vividly recounts the testimony of survivors, former SS officers, and defendants--a cross-section of the camp population. Attorney General Fritz Bauer made an extraordinary effort to put the entire Auschwitz complex on trial, but constrained by West German murder laws, the prosecution had to resort to standards for illegal behavior that echoed the laws of the Third Reich. This provided a legitimacy to the Nazi state. Only those who exceeded direct orders were convicted of murder. This shocking ruling was reflected in the press coverage, which focused on only the most sadistic and brutal crimes, allowing the real atrocity at Auschwitz--mass murder in the gas chambers--to be relegated to the background.

The Auschwitz trial had a paradoxical result. Although the prosecution succeeded in exposing SS crimes at the camp for the first time, the public absorbed a distorted representation of the criminality of the camp system. The Auschwitz trial ensured that rather than coming to terms with their Nazi past, Germans managed to delay a true reckoning with the horror of the Holocaust.

Laws are products of the societies in which they operate—they originate and mutate in response to disputes that are particular to specific social, cultural, and political contexts. Disputing procedures, are therefore important mediums through which fundamental beliefs, values, and symbols of culture are communicated, preserved, and sometimes altered. In Law, Culture, and Ritual, Oscar G. Chase uses interdisciplinary scholarship to examine the cultural contexts of legal institutions, and presents several case studies to demonstrate that the processes of resolving disputes, as much as the normative rules that are applied to them, have a cultural origin and impact.

Ranging from the dispute resolution practices of the Azande, a technologically simple, small-scale African society, to the rise of discretionary authority in civil litigation in America, Chase challenges the claims of some scholars that official dispute systems are more reflective of the interests and preferences of elite professionals than of the cultures in which they are embedded.