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The Amherst Series in Law, Jurisprudence, and Social Thought

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The Amherst Series in Law, Jurisprudence, and Social Thought

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Cultural Pluralism, Identity Politics, and the Law

Austin Sarat and Thomas R. Kearns, Editors

We are witnessing in the last decade of the twentieth century more frequent demands by racial and ethnic groups for recognition of their distinctive histories and traditions as well as opportunities to develop and maintain the institutional infrastructure necessary to preserve them. Where it once seemed that the ideal of American citizenship was found in the promise of integration and in the hope that none of us would be singled out for, let alone judged by, our race or ethnicity, today integration, often taken to mean a denial of identity and history for subordinated racial, gender, sexual or ethnic groups, is often rejected, and new terms of inclusion are sought. The essays in Cultural Pluralism, Identity Politics, and the Law ask us to examine carefully the relation of cultural struggle and material transformation and law's role in both. Written by scholars from a variety of disciplines and theoretical inclinations, the essays challenge orthodox understandings of the nature of identity politics and contemporary debates about separatism and assimilation. They ask us to think seriously about the ways law has been, and is, implicated in these debates. The essays address questions such as the challenges posed for notions of legal justice and procedural fairness by cultural pluralism and identity politics, the role played by law in structuring the terms on which recognition, accommodation, and inclusion are accorded to groups in the United States, and how much of accepted notions of law are defined by an ideal of integration and assimilation. The contributors are Elizabeth Clark, Lauren Berlant, Dorothy Roberts, Georg Lipsitz, and Kenneth Karst.

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The Fate of Law

Austin Sarat and Thomas R. Kearns, Editors

For law and legal theory the end of the twentieth century is a time of contradiction; while the newly emerging politics of Eastern Europe seek to establish a new rule of law, voices in this country proclaim the "death of law." For the former, law provides hope for stability and fairness. For the latter, the fundamental values that provide a grounding for legality seem no longer secure or satisfying. The Fate of Law is a collection of five original essays, each of which discusses the problems and prospects of law in the late twentieth century. The essays pay particular attention to the impact of broad intellectual and political movements, especially feminism and postmodernism, on law and legal theory. The Fate of Law investigates what happens under the critical scrutiny of those movements and in an era of growing skepticism about law's central claim to objectivity, neutrality, and reason. It describes the struggles that ensue and the responses that are made. Each of the essays that comprise this books is written in its own style and voice; each makes it own judgments and assessments.

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History, Memory, and the Law

Austin Sarat and Thomas R. Kearns, Editors

The essays in this book examine law as an active participant in the process through which history is written and memory is constructed. Instead of seeing law as a "victim" of history, the writers treat law as an author of history, not just in the instrumental sense in which law can be said to make a difference in society, but in the ways that law constructs and uses history. Law looks to the past as it speaks to present needs. In the production of judicial opinions--supposedly definitive statements of what the law is--judges reconstruct law's past, tracing out lines of legal precedent that arguably "compel" their decisions. These essays consider how law treats history, how history appears in legal decisions, and how the authority of history is used to authorize legal decisions. Furthermore, law plays a role in the construction of memory. The writers here ask how law remembers and records the past as well as how it helps us to remember our past. Law in the modern era is one of the most important of our society's technologies for preserving memory. In helping to construct our memory in certain ways law participates in the writing of our collective history. It plays a crucial role in knitting together our past, present, and future. The essays in this volume present grounded examinations of particular problems, places, and practices and address the ways in which memory works in and through law, the sites of remembrance that law provides, the battles against forgetting that are fought in and around those sites, and the resultant role law plays in constructing history. The writers also inquire about the way history is mobilized in legal decision making, the rhetorical techniques for marshalling and for overcoming precedent, and the different histories that are written in and through the legal process. The contributors are Joan Dayan, Soshana Felman, Dominic La Capra, Reva Siegel, Brook Thomas, and G. Edward White. Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science and Professor of Law, Jurisprudence, and Social Thought, Amherst College. He is past President of the Law and Society Association and current President of the Association for the Study of Law, Culture, and the Humanities. Thomas R. Kearns is William H. Hastie Professor of Philosophy and Professor of Law, Jurisprudence, and Social Thought, Amherst College.

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Human Rights

Concepts, Contests, Contingencies

Austin Sarat and Thomas R. Kearns, Editors

Today the language of human rights, if not human rights themselves, is nearly universal. Human Rights brings together essays that attend to both the allure and criticism of human rights. They examine contestation and contingency in today's human rights politics and help us rethink some of the basic concepts of human rights. Questions addressed in Human Rights include: Can national self-determination be reconciled with human rights? Can human rights be advanced without thwarting efforts to develop indigenous legal traditions? How are the forces of modernization associated with globalization transforming our understanding of human dignity and personal autonomy? What does it mean to talk about culture and cultural choice? Is the protection of culture and cultural choice an important value in human rights discourse? How do human rights figure in local political contests and how are those contests, in turn, shaped by the spread of capitalism and market values? What contingencies shape the implementation of human rights in societies without a strong tradition of adherence to the rule of law? What are the conditions under which human rights claims are advanced and under which nations respond to their appeal? Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst College. Thomas R. Kearns is William H. Hastie Professor of Philosophy and Professor of Law, Jurisprudence, and Social Thought, Amherst College.

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Identities, Politics, and Rights

Austin Sarat and Thomas R. Kearns, Editors

The subject of rights occupies a central place in liberal political thought. This tradition posits that rights are entitlements of individuals by virtue of their personhood and that rights stand apart from politics, that rights in fact hold at bay intrusions of state policy. The essays in Identities, Politics, and Rights question these assumptions and examine how rights constitute us as subjects and are, at the same time, implicated in political struggles. In contrast to the liberal notion of rights' universality, these essays emphasize the context-specific nature of rights as well as their constitutive effects. Recognizing that political disputes throughout the world have increasingly been cast as arguments about rights, the essays in this volume examine the varied roles that rights play in political movements and contests. They argue that rights talk is used by many different groups primarily because of its fluidity. Certainly rights can empower individuals and protect them from their societies, but they also constrain them in other areas. Frequently, empowerment for one group means disabling rights for another group. Moreover, focusing on rights can both liberate and limit the imagination of the possible. By alerting us to this paradox of rights--empowerment and limitation--Identities, Politics, and Rights illuminates ongoing challenges to rights and reminds us that rights can both energize political engagement and provide a resource for defenders of the status quo. Contributors are Richard Abel, Bruce Ackerman, Wendy Brown, John Comaroff, Drucilla Cornell, Jane Gaines, Thomas R. Kearns, Elizabeth Kiss, Kirstie McClure, Sally Merry, Martha Minow, Austin Sarat, and Steven Shiffrin. Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst College. Thomas R. Kearns is William H. Hastie Professor of Philosophy, Amherst College.

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Justice and Injustice in Law and Legal Theory

Austin Sarat and Thomas R. Kearns, Editors

Running through the history of jurisprudence and legal theory is a recurring concern about the connections between law and justice and about the ways law is implicated in injustice. In earlier times law and justice were viewed as virtually synonymous. Experience, however, has taught us that, in fact, injustice may be supported by law. Nonetheless, the belief remains that justice is the special concern of law. Commentators from Plato to Derrida have called law to account in the name of justice, asked that law provide a language of justice, and demanded that it promote the attainment of justice. The justice that is usually spoken about in these commentaries is elusive, if not illusory, and disconnected from the embodied practice of law. Furthermore, the very meaning of justice, especially as it relates to law, is in dispute. Justice may refer to distributional issues or it may involve primarily procedural questions, impartiality in judgment or punishment and recompense. The essays collected in Justice and Injustice in Law and Legal Theory seek to remedy this uncertainty about the meaning of justice and its disembodied quality, by embedding inquiry about justice in an examination of law's daily practices, its institutional arrangements, and its engagement with particular issues at particular moments in time. The essays examine the relationship between law and justice and injustice in specific issues and practices and, in doing so, make the question of justice come alive as a concrete political question. They draw on the disciplines of history, law, anthropology, and political science. Contributors to this volume include Nancy Coot, Joshua Coven, Robert Gorton, Frank Michelin, and Michael Tossing. Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst College. Thomas R. Kearns is William H. Hastie Professor of Philosophy, Amherst College.

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Law in Everyday Life

Austin Sarat and Thomas R. Kearns, Editors

Sarat and Kearns . . . have edited a truly marvelous work on the impact of the law on daily life and vice versa. . . . the essays are all exemplary, thought- provoking works worthy of a long, contemplative read by scholars, lawyers, and judges alike. --Choice "The subject of law in everyday life is timely in theory and in practice. The essays collected here are stimulating for the very different ways in which they reconfigure the meanings of 'the law' as cultural practice, and 'the everyday' as a cultural domain in which the state expresses a range of interests and engagements. Readers looking for an introduction to this topic will come away from the book with a clear sense of the varied voices and modes of inquiry now involved in sociolegal studies, and what distinguishes them. More experienced readers will appreciate the book's meticulous reconsideration of the instrumentalities, agencies, and constructedness of law." --Carol Greenhouse, Indiana University Contributors include David Engel, Hendrik Hartog, Thomas R. Kearns, David Kennedy, Catharine MacKinnon, George Marcus, Austin Sarat, and Patricia Williams. Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science, and Chair of the Department of Law, Jurisprudence, and Social Thought, Amherst College. Thomas R. Kearns is William H. Hastie Professor of Philosophy and Professor of Law, Jurisprudence, and Social Thought, Amherst College.

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Law in the Domains of Culture

Austin Sarat and Thomas R. Kearns, Editors

The concept of culture is troublingly vague and, at the same time, hotly contested, and law's relations to culture are as complex, varied and disputed as the concept of culture itself. The concept of the traditional, unified, reified, civilizing idea of culture has come under attack. The growth of cultural studies has played an important role in redefining culture by including popular culture and questions of social stratification, power and social conflict. Law and legal studies are relative latecomers to cultural studies. As scholars have come to see law as not something apart from culture and society, they have begun to explore the connections between law and culture. Focusing on the production, interpretation, consumption and circulation of legal meaning, these scholars suggest that law is inseparable from the interests, goals and understandings that deeply shape or compromise social life. Against this background, Law in the Domains of Culture brings the insights and approaches of cultural studies to law and tries to secure for law a place in cultural analysis. This book provides a sampling of significant theoretical issues in the cultural analysis of law and illustrates some of those issues in provocative examples of the genre. Law in the Domains of Culture is designed to encourage the still tentative efforts to forge a new interdisciplinary synthesis, cultural studies of law. The contributors are Carol Clover, Rosemary Coombe, Marjorie Garber, Thomas R. Kearns, William Miller, Andrew Ross, Austin Sarat, and Martha Woodmansee. Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science, Amherst College. Thomas R. Kearns is William H. Hastie Professor of Philosophy, Amherst College.

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Law's Madness

Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey, Editors

Law and madness? Madness, it seems, exists outside the law and, in principle, society struggles to keep these slippery terms separate. From this perspective, madness appears to be law's foil, the chaos that escapes law's control and simultaneously justifies its existence. Law's Madness explores the gray area between the realms of reason and madness. The distinguished contributors to Law's Madness propose a fascinating interdisciplinary approach to the instability and mutual permeability of law and madness. Their essays examine a variety of discursive forms—from the literary to the historical to the psychoanalytic—in which law is driven more by narrative than by reason. Their studies delineate the ways in which the law takes its definition in part from that which it excludes, suppresses, or excises from itself, illuminating the drive to enforce barriers between non-reason and legality, while simultaneously shedding new light on the constitutive force of the irrational in legal doctrine. Law's Madness suggests that the tense and paradoxical relationship between law and madness is precisely what erects and sustains law. This provocative collection asks what must be forgotten in order to uphold the rule of law. Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science at Amherst College. Lawrence Douglas is Associate Professor of Law, Jurisprudence, and Social Thought at Amherst College. Martha Merrill Umphrey is Associate Professor of Law, Jurisprudence, and Social Thought at Amherst College.

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Law's Violence

Austin Sarat and Thomas R. Kearns, Editors

In bringing together accomplished and thoughtful scholars of different disciplines, with a command of literature ranging from the legal to the literary, and in relating the works to the central arguments of the late Professor Robert Cover, Sarat and Kearns have created a first-rate up-to-date exposition of this important and complicated issue, namely, how to understand better the violence implicit and explicit in law.--Legal Studies Forum The relationship between law and violence is made familiar to us in vivid pictures of police beating suspects, the large and growing prison population, and the tenacious attachment to capital punishment in the United States. Yet the link between law and violence and the ways that law manages to impose pain and death while remaining aloof and unstained are an unexplored mystery. Each essay in this volume considers the question of how violence done by and in the name of the law differs from illegal or extralegal violence--or, indeed, if they differ at all. Each author draws on a distinctive disciplinary tradition-- literature, history, anthropology, philosophy, political science, or law. Yet each reminds us that law, constituted in response to the metaphorical violence of the state of nature, is itself a doer of literal violence. Austin Sarat is William Nelson Cromwell Professor of Jurisprudence and Political Science and Chair of the Program in Law, Jurisprudence, and Social Thought, Amherst College. Thomas R. Kearns is William H. Hastie Professor of Philosophy, Amherst College.

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