Bucking the Party Line: Calavita's Invitation to Law & Society (In Which the Author Is Invited to a Party Where He Encounters Many Old and Familiar Faces,Becomes Argumentative,Stays Up Too Late,and Finally Departs in Search of New Adventures)

Intended as a short survey text, Kitty Calavita's Invitation to Law & Society expertly summarizes many of the central themes of law and society scholarship as they have developed over the past fifty years. It also clearly identifies the field's object of attention: “real” law. I use this commentary on the book as an opportunity to assess the field as it enters its sixth decade. How has the field changed? What are its defining characteristics? What is “real” law? Does law and society research have a future?     

From Movement to Mentality,from Paradigm to Perspective,from Action to Performance: Law and Society at Mid‐Life

Kitty Calavita's Invitation to Law & Society: An Introduction to the Study of Real Law (2010) offers a broad and useful overview of the intellectual accomplishments of law and society scholars and a self‐confident assertion that they perform an invaluable service by focusing on “real law,” that is, law in action rather than law on the books. This essay argues that the field is more fragmented than Calavita notes and that law and society research is neither engaged with a common set of questions nor organized around a single central insight or an agreed‐upon paradigm. Moreover, this essay raises questions about Calavita's claims about “real” law and suggests that we complement law and society's traditional focus by examining the varied performances of law, whether in texts or in the world beyond those texts.     

Framing Henry Ford's War: Representation,Speech, and the New Civil Rights History

Woeste, Victoria Saker. 2012 . Henry Ford's War on Jews and the Legal Battle Against Hate Speech . Stanford, CA: Stanford University Press. In this essay, I respond to three readers of my book, Henry Ford's War and the Legal Battle Against Hate Speech, by embracing the opportunity to reconsider the book's theoretical and historiographical frames. I synthesize the contributions that Clyde Spillenger, Carroll Seron, and Aviam Soifer make in their deep readings of the book and respond to their criticisms. I then place the book into a new interpretive frame that is emerging in the field of the “new civil rights history,” as it is now being conceptualized in the work of Risa Goluboff, Kenneth Mack, Tomiko Brown‐Nagin, and others writing on civil rights advocacy in the twentieth‐century United States.     

Calavita's Law & Society: (En)racing Law and Society

One of the sharpest critiques of law and society scholarship in recent years has come from scholars who maintain that law and society scholarship fails to address the issue of race appropriately. This essay considers several critiques of law and society scholars' engagement with issues of race and uses them to evaluate Kitty Calavita's exploration of race in Invitation to Law & Society: An Introduction to the Study of Real Law (2010). The essay advocates the use of “race as process” as a mode of analysis that will allow for greater explanatory power to law and society scholarship when it touches on racial issues.     

Outsiders and justice consciousness

The foundations of my justice consciousness lie in two books that share the name “outsiders.” I was introduced to S.E. Hinton's novel before I was a teenager and it was my first real contact with the “Greasers,” the “Socs,” and a world of juvenile delinquency divided by social class. Written by a 16‐year‐old girl around the time I was born, I think it was this book that initially sparked my fascination with juvenile delinquency and the study of crime. I pursued this interest in college and became concerned with inequality and the ways in which our social surroundings shape our choices and our life chances. Reading Howard S. Becker's classic statement of labeling theory in his version of Outsiders changed my perspective again and I have never looked at the world in quite the same way since.     

Machiavelli and the Problem of Dictatorship

Machiavelli is the first modern political thinker who pays great attention to the magistracy of dictatorship. “Dictatorial authority,” as he puts it, is fundamental to the survival and prosperity of republics: It is the magistracy, the “ordinary mode,” to which they turn to deal with “extraordinary accidents,” political and military emergencies. Machiavelli's gaze is cast both on the Ancient and the Modern world: Although he concentrates on the Roman magistracy, he also pays attention to magistracies of the modern world that were in some way similar, such as the Council of the Ten in the Republic of Venice. In my paper, I will attempt to reconstruct the essential points of Machiavelli's discussion on dictatorship; in the concluding remarks, I will briefly tackle the more general question of the relationship between politics and law in his work as a whole.     

Radbruch and Hart on the Grudge Informer: A Reconsideration

Hart's defense of the separation of law and morality is partly based on his refusal to accept Radbruch's solution of the well‐known grudge informer case, in his famous article “Statutory Injustice and Suprastatutory Law.” In this paper, I present a detailed reconstruction of the “debate” between Radbruch and Hart on this case. I reach the conclusion that Hart fails to address the issue that was Radbruch's primary concern, namely the legal position of the judiciary when dealing with criminal statutes. I suggest that Hart's separation thesis cannot be upheld in the face of this concern. In my argument, Hart's mistaken understanding of the verdict of the Oberlandesgericht Bamberg that he refers to plays a crucial role.     

Cultural Minority Rights and the Rights of the Majority in the Liberal State

Traditional liberalism's blindness to cultural concerns has often come under fire, while so-called “liberal multiculturalism” (Taylor and Kymlicka) has made it its business to take a good look at the place of culture within liberal law. According to them, cultural minorities should be recognized. In my opinion, however, their proposals, in fact, almost entirely preclude the possibility that cultural minorities would receive recognition within liberal society. In what follows, I explain my view of these matters and, above all, argue for a more vital understanding of cultural minorities. This will entail presenting a comprehensive view of minority rights within liberal society.     

Are Women Getting (More) Justice? Malaysia's Sharia Courts in Ethnographic and Historical Perspective

Religious law is commonly understood as deeply conservative and unfriendly to women, even when it is reform oriented and “this‐worldly.” This essay challenges that understanding. It does so by engaging the practice and lived entailments of Islamic family law and gender pluralism in Malaysia, based on ethnographic fieldwork conducted since the late 1970s. My research reveals that sharia courts are more timely and flexible in responding to women's claims than in decades past, and that these courts are more inclined to punish husbands who transgress sharia family law bearing on women. In addition, women nowadays have far more access to resources for negotiating marriage, its dissolution, and the aftermath. This is not to say that women and men experience marriage, divorce, or the sharia juridical field as social equals; they do not. But this situation is changing in ways that benefit women as long as they embrace increasingly salient and restrictive codes of obedience and heteronormativity. More broadly, the essay problematizes tensions and oppositions between Islamic law and women's rights that are the subject of considerable scholarly debate and contributes to our understanding of the complex entanglements of religion and law.     

You Got What You Deserved

The Philosophy of Criminal Law collects 17 of Doug Husak’s articles on legal theory, 16 of which have been previously published, spanning a period of over two decades. In sum, these 17 articles make a huge and lasting contribution to criminal law theory. There is much wisdom contained in them; and I find surprisingly little to disagree with, making my job as a critical reviewer quite challenging. Most of the points on which Doug and I disagree can be found in my other published work in this field, so I will have little to say about them, except where they illuminate those few points of disagreement that arise in the particular essays I discuss. Most of what I will say will be in accord with Doug’s views and will principally explore their wider implications. The 17 essays in the book cover too many and too varied topics for one review essay. Therefore, I will focus on just three of them: “Rapes Without Rapists: Consent and Reasonable Mistake” (co-authored by George C. Thomas); “Mistakes of Law and Culpability”; and “Already Punished Enough.” Although I generally agree with the upshots of Doug’s arguments in these chapters, I think the issues they raise are worth further exploration.     

The Mutability of Public Reason

Rawls's “public reason” has not been without its critics. One criticism is that public reason is “conservative.” Public reason must rely on those beliefs that are “widely shared” among citizens. But if public reason relies on widely shared beliefs, how can it change without departing from those beliefs, thus violating public reason? In part one of my essay, I introduce the conservatism objection and describe two unsatisfactory responses to it. Part two argues that there are aspects of public reason which diminish the force of the conservatism objection: first, that public reason is historical, and second, that it is mutable.     

Libertarian Paternalism,Externalities, and the “Spirit of Liberty”: How Thaler and Sunstein Are Nudging Us toward an “Overlapping Consensus”

In their 2008 book Nudge: Improving Decisions about Health, Wealth, and Happiness, Richard Thaler and Cass Sunstein use research from psychology and behavioral economics to argue that people suffer from systematic cognitive biases. They propose that policy makers mitigate these biases by framing people's choices in ways that help people act in their own self‐interest. Thaler and Sunstein call this approach “libertarian paternalism,” and they market it as “the Real Third Way.” In this essay, I argue that the book is a brilliant contribution to thinking about policy making but that “choice architecture” is not just a solution to the problem of cognitive biases. Rather, it is a means of approaching any kind of policy making. I further argue that policy makers must take externalities into account, even when using choice architecture. Finally, I argue that libertarian paternalism can best be seen as motivated by what Sunstein has celebrated in his work on constitutional theory: a humility about the possibility of policy‐maker error embodied in Learned Hand's famous aphorism about the “spirit of liberty” and an attempt to reduce social conflicts by searching for what John Rawls called an “overlapping consensus.”     

Support Structures and Constitutional Change: Teles,Southworth, and the Conservative Legal Movement

This essay reviews two recent works in political science on the American conservative legal movement: Steven M. Teles's The Rise of the Conservative Legal Movement: The Battle for Control of the Law (2008) and Ann Southworth's Lawyers of the Right: Professionalizing the Conservative Coalition (2008). It examines these books in the context of a larger debate over the variables that best explain constitutional change in general and the recent “conservative counterrevolution” in Supreme Court jurisprudence in particular. It shows how these studies build on the scholarship of Charles Epp, who argued in The Rights Revolution (1998) that serious constitutional change requires not only the right cast of characters on the court, but also a strong “support structure” in the legal profession and civil society. Finally, it draws on the author's own research on the Federalist Society for Law and Public Policy to illustrate some important avenues for further inquiry.     

Hart's and Kelsen's Concepts of Normativity Contrasted*

Abstract. Hart's and Kelsen's respective outlooks on the concept of normativity not only differ by the way they explain this concept but also, more importantly, in what they seek to achieve when endeavouring to account for the normative dimension of law. By examining Hart's and Kelsen's models in the light of Korsgaard's understanding of the “normativity problem,” my aim is to emphasise not only their contrasted perspectives, but also the common limit they impose on their theories by dismissing as inappropriate any question regarding the emergence of legal normativity. On the basis of my previous arguments, I shall explain why I deem Raz's analysis of the contrast between Hart's and Kelsen's conceptions of normativity to be misleading.     

Law's Strange Allure: The Power of Legal Lore beyond the Law-Politics Divide

American political culture is both seduced and repulsed by legal power, and this essay reviews Gordon Silverstein's contribution to understanding the causes and consequences of “law's allure.” Using interbranch analysis, Silverstein argues that law is dangerously alluring as a political shortcut, but ultimately he concludes that law offers no exit from “normal politics” and the hard work of “changing minds.” This essay suggests that Silverstein's framework—his dyadic focus on courts and Congress, constructive and deconstructive patterns, legal formality and normal politics—strips law from its animating context of interests, inequality, and ideology. Without consideration of these larger forces of power, Silverstein's framework misplaces law's ability to “change minds” in perverse and unexpected ways.     

Judging in Place: Architecture,Design, and the Operation of Courts

What can judicial architecture tell us about how courts function? In this essay, I examine Legal Architecture: Justice, Due Process, and the Place of Law (2011) by Linda Mulcahy and Representing Justice: Invention, Controversy, and Rights in City‐States and Democratic Courtrooms (2011) by Judith Resnik and Dennis Curtis. I argue that both books develop an understanding of judicial architecture as a socially contingent form of communication. I relate this expressive theory of architecture to older arguments about design and construction articulated by poet and novelist Victor Hugo and architect Frank Lloyd Wright. I also briefly explore the connections between this developing “jurisprudence of what's real” and more conventional forms of law‐and‐courts scholarship.     

Bilateral Investment Treaties,Credible Commitment,and the Rule of (International) Law: Do BITs Promote Foreign Direct Investment?

A long line of research, beginning with Macaulay's (1963) well‐known study of “Non‐Contractual Relations in Business,” suggests that the formal trappings of domestic law often have effects on private behavior that are, at best, “indirect, subtle, and ambiguous” ( Macaulay 1984 :155). Law and society scholars have spent somewhat less time exploring whether international law's effects on behavior are similarly attenuated. In this article I examine whether foreign investors take the presence of strong formal international legal protections into account when deciding where to invest. I focus on whether the presence of bilateral investment treaties, or BITs, meaningfully influences investment decisions. I present results from a statistical analysis that examines whether the formally strongest BITs—those that guarantee investors access to international arbitration to enforce investors' international legal rights—are associated with greater investment flows. I find no clear link between treaty protections and investment, a finding consistent with past law and society research but in tension with claims common in the BIT literature that the treaties should have dramatic effects on investor behavior.     

The History of Genres: Reaching for Reality in Law and Literature

Genres are historical formations; their ability to generate knowledge depends on their interrelationships within a culture. Since law, too, can be viewed as a genre, studies of specific historical relationalities between law and other genres are necessary for law's own history and theory. This essay discusses differentiations between Victorian law and literature, starting out from the recent publication of Ayelet Ben‐Yishai's Common Precedents: The Presentness of the Past in Victorian Law and Fiction (2013), which reveals some of that history. I examine two points: differentiations in legal and literary approaches to probabilistic knowledge, and differentiations in the author functions in law and literature. These differentiations bear multiple implications. I discuss implications for evidence‐law debates about probabilistic evidence, for contract‐law debates about the centrality of autonomy and self‐authorship, and for understandings of legal reasoning itself—the elusive notion of “thinking like a lawyer.”