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Featured Acquisitions - February 2013

 

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Empowerment and Disempowerment of the European Citizen edited by Michael Dougan, Niamh Nic Shuibhne and Elanor Spaventa
Oxford; Portland, OR: Hart Publishing 2012
JN40 .E47 2012 Basement

This collection engages with a central theme on EU citizenship - the emancipation of certain citizens, the alienation of others - and expands the horizons to interrogate whether similar debates and trends can be identified in other fields of European integration. The focus of the book is distinctly citizen-focused. It delivers the potential for the opening out of analysis of the implications of European citizenship beyond the parameters of Articles 18-25 TFEU and beyond the disciplinary confines of legal analysis alone. The book construes 'EU citizenship' in its broadest sense, and explores the extent to which the European citizen is, or indeed is not, genuinely at the heart of EU law and policy making. What is the purpose and role of this transnational, regional regulator, given that citizen concerns seem focused primarily at either the infra State or global levels? Within the broader theme of empowerment and disempowerment, the book's contributors reflect on a range of cross cutting themes, for example: the extent to which channels of citizen participation (can) inform EU policy making in a 'bottom-up' sense, or whether the EU is a catalyst for the construction of new spaces and new identities.


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Captive Audience: The Telecom Industry and Monopoly Power in the New Gilded Age by Susan Crawford
New Haven, Conn.: Yale University Press, 2013
KF2765 .C73 2013 Balcony

Ten years ago, the United States stood at the forefront of the Internet revolution. With some of the fastest speeds and lowest prices in the world for high-speed Internet access, the nation was poised to be the global leader in the new knowledge-based economy. Today that global competitive advantage has all but vanished because of a series of government decisions and resulting monopolies that have allowed dozens of countries, including Japan and South Korea, to pass us in both speed and price of broadband. This steady slide backward not only deprives consumers of vital services needed in a competitive employment and business market—it also threatens the economic future of the nation.

This important book by leading telecommunications policy expert Susan Crawford explores why Americans are now paying much more but getting much less when it comes to high-speed Internet access. Using the 2011 merger between Comcast and NBC Universal as a lens, Crawford examines how we have created the biggest monopoly since the breakup of Standard Oil a century ago. In the clearest terms, this book explores how telecommunications monopolies have affected the daily lives of consumers and America's global economic standing.


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Fighting to Serve: Behind the Scenes in the War to Repeal “Don’t Ask, Don’t Tell” by Alexander Nicholson
Chicago, Ill.: Chicago Review Press, 2012
UB418.G38 N53 2012 Basement

Discharged in 2002 from the US Army under the provisions of “Don’t Ask, Don’t Tell,” Alexander Nicholson was shocked to learn there was no group advocating DADT’s repeal that was reaching out to active military or veterans organizations. Nicholson believed the repeal effort needed spokespersons who understood military culture, who could talk about DADT’s impact on those who serve to those who serve and served. Someone like him.

From this idea Service members United, the largest organization for gay and lesbian service members, was born. Nicholson and several others who had been discharged under DADT toured the United States, where they spoke at American Legion posts, on radio talk shows, and at press conferences across the South and on both coasts. Surprised at the mostly positive reception that the tour provoked, Nicholson and service members United were propelled to the forefront of the DADT repeal fight.

In time Nicholson became the only named plaintiff in the successful lawsuit that ordered the policy overturned, forcing the US Congress to act. Fighting to Serve gives a no-holds-barred account of the backstage strategies and negotiations, revealing how various LGBT organizations, the Congress, the Pentagon, and the White House often worked at cross purposes. But in the end, it was the pressure brought by active veterans, a court ruling out of California, and a few courageous senators, representatives, and military leaders that brought the destructive policy to an end.


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Boilerplate: The Fine Print, Vanishing Rights, and the Rule of Law by Margaret Jane Radin
Princeton, N.J.: Princeton University Press, 2013
KF808 .R25 2013 Basement

Boilerplate--the fine-print terms and conditions that we become subject to when we click "I agree" online, rent an apartment, enter an employment contract, sign up for a cellphone carrier, or buy travel tickets--pervades all aspects of our modern lives. On a daily basis, most of us accept boilerplate provisions without realizing that should a dispute arise about a purchased good or service, the nonnegotiable boilerplate terms can deprive us of our right to jury trial and relieve providers of responsibility for harm. Boilerplate is the first comprehensive treatment of the problems posed by the increasing use of these terms, demonstrating how their use has degraded traditional notions of consent, agreement, and contract, and sacrificed core rights whose loss threatens the democratic order.

Margaret Jane Radin examines attempts to justify the use of boilerplate provisions by claiming either that recipients freely consent to them or that economic efficiency demands them, and she finds these justifications wanting. She argues, moreover, that our courts, legislatures, and regulatory agencies have fallen short in their evaluation and oversight of the use of boilerplate clauses. To improve legal evaluation of boilerplate, Radin offers a new analytical framework, one that takes into account the nature of the rights affected, the quality of the recipient's consent, and the extent of the use of these terms. Radin goes on to offer possibilities for new methods of boilerplate evaluation and control, among them the bold suggestion that tort law rather than contract law provides a preferable analysis for some boilerplate schemes. She concludes by discussing positive steps that NGOs, legislators, regulators, courts, and scholars could take to bring about better practices.


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The Three and a Half Minute Transaction: Boilerplate and the Limits of Contract Design by Mitu Gulati and Robert E. Scott
Chicago: University of Chicago Press, 2013
K845.S7 G86 2013 Balcony

Boilerplate language in contracts tends to stick around long after its origins and purpose have been forgotten. Usually there are no serious repercussions, but sometimes it can cause unexpected problems. Such was the case with the obscure pari passu clause in cross-border sovereign debt contracts, until a novel judicial interpretation rattled international finance by forcing a defaulting sovereign—for one of the first times in the market’s centuries-long history—to repay its foreign creditors. Though neither party wanted this outcome, the vast majority of contracts subsequently issued demonstrate virtually no attempt to clarify the imprecise language of the clause.

Using this case as a launching pad to explore the broader issue of the “stickiness” of contract boilerplate, Mitu Gulati and Robert E. Scott have sifted through more than one thousand sovereign debt contracts and interviewed hundreds of practitioners to show that the problem actually lies in the nature of the modern corporate law firm. The financial pressure on large firms to maintain a high volume of transactions contributes to an array of problems that deter innovation. With the near certainty of massive sovereign debt restructuring in Europe, The Three and a Half Minute Transaction speaks to critical issues facing the industry and has broader implications for contract design that will ensure it remains relevant to our understanding of legal practice long after the debt crisis has subsided.


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Reimagining Child Soldiers in International Law and Policy by Mark A. Drumbl
Oxford; New York: Oxford University Press, 2012
K4725 .D78 2012 Sohn Collection

The international community's efforts to halt child soldiering have yielded some successes. But this pernicious practice persists. It may shift locally, but it endures globally. Preventative measures therefore remain inadequate. Former child soldiers experience challenges readjusting to civilian life. Reintegration is complex and eventful. The homecoming is only the beginning. Reconciliation within communities afflicted by violence committed by and against child soldiers is incomplete. Shortfalls linger on the restorative front.

The international community strives to eradicate the scourge of child soldiering. Mostly, though, these efforts replay the same narratives and circulate the same assumptions. Current humanitarian discourse sees child soldiers as passive victims, tools of war, vulnerable, psychologically devastated, and not responsible for their violent acts. This perception has come to suffuse international law and policy. Although reflecting much of the lives of child soldiers, this portrayal also omits critical aspects. This book pursues an alternate path by reimagining the child soldier. It approaches child soldiers with a more nuanced and less judgmental mind.

This book takes a second look at these efforts. It aspires to refresh law and policy so as to improve preventative, restorative, and remedial initiatives while also vivifying the dignity of youth. Along the way, Drumbl questions central tenets of contemporary humanitarianism and rethinks elements of international criminal justice. This ground-breaking book is essential reading for anyone committed to truly emboldening the rights of the child. It offers a way to think about child soldiers that would invigorate international law, policy, and best practices. Where does this reimagination lead? Not toward retributive criminal trials, but instead toward restorative forms of justice. Toward forgiveness instead of excuse, thereby facilitating reintegration and promoting social repair within afflicted communities. Toward a better understanding of child soldiering, without which the practice cannot be ended. This book also offers fresh thinking on related issues, ranging from juvenile justice, to humanitarian interventions, to the universality of human rights, to the role of law in responding to mass atrocity.


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Beyond Reason: Using Emotions as You Negotiate by Roger Fisher and Daniel Shapiro
New York: Viking, 2005
BF637.N4 F55 2005 Basement

Whether you are negotiating a business contract or curfew with your teenager, emotions can get you in trouble. They also can help you get what you want. This book shows you how.
Telling a negotiator “Don’t get emotional” is nonsense. We all have emotions of some kind—all the time—and these emotions deeply inform both what we want and how we go about getting it. In Getting to Yes, master negotiator Roger Fisher helped readers understand the mechanics of everyday agreements and how to reach them while preserving respect and self-worth. Now, in Beyond Reason, he and psychologist Daniel Shapiro share their expertise in understanding how emotions affect negotiations and, more importantly, how they can be used as a tool.

Beyond Reason sheds light on five core emotional concerns we all feel during any interaction, whether between business partners or spouses. Do you feel unappreciated? Alone? Put down? Trivialized? Your autonomy impinged? Awareness of these “core concerns” gives you power. Fisher and Shapiro show you how to use them to generate positive emotions in others and in yourself, allowing you to set the emotional tone and to get what you each want more easily. You will even know what matters most to people before meeting them. Fresh, insightful, and engaging, Beyond Reason is sure to be viewed as Fisher’s most important work since Getting to Yes.


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Unlearning Liberty: Campus Censorship and the End of American Debate by Greg Lukianoff
New York: Encounter Books, 2012
KF4242 .L85 2012 Balcony

Constitutional lawyer Lukianoff walks readers through the life of a modern-day student, from high school to the last day of their first semester, to show how students are being systemically miseducated about what it means to live in a free society.
 
 


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The Behavior of Federal Judges: A Theoretical and Empirical Study by Lee Epstein, William M. Landes, and Richard A. Posner
Cambridge, Mass: Harvard University Press, 2013
KF5130 .E67 2013 Balcony

Judges play a central role in the American legal system, but their behavior as decision makers is not well understood, even among themselves. The system permits judges to be quite secretive (and most of them are), so indirect methods are required to make sense of their behavior. Here, a political scientist, an economist, and a judge work together to construct a unified theory of judicial decision-making. Using statistical methods to test hypotheses, they dispel the mystery of how judicial decisions in district courts, circuit courts, and the Supreme Court are made.

The authors derive their hypotheses from a labor-market model, which allows them to consider judges as they would any other economic actors: as self-interested individuals motivated by both the pecuniary and non-pecuniary aspects of their work. In their view, this model describes judicial behavior better than either the traditional “legalist” theory, which sees judges as automatons who mechanically apply the law to the facts, or the current dominant theory in political science, which exaggerates the ideological component in judicial behavior. Ideology does figure into decision-making at all levels of the federal judiciary, the authors find, but its influence is not uniform. It diminishes as one moves down the judicial hierarchy from the Supreme Court to the courts of appeals to the district courts. As The Behavior of Federal Judges demonstrates, the good news is that ideology does not extinguish the influence of other components in judicial decision-making. Federal judges are not just robots or politicians in robes.


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Ordered Liberty: Rights, Responsibilities and Virtues by James E. Fleming and Linda C. McClain
Cambridge, Mass.: Harvard University Press, 2013
KF4749 .F55 2013 Balcony

Many have argued in recent years that the U.S. constitutional system exalts individual rights over responsibilities, virtues, and the common good. Answering the charges against liberal theories of rights, James Fleming and Linda McClain develop and defend a civic liberalism that takes responsibilities and virtues-as well as rights-seriously. They provide an account of ordered liberty that protects basic liberties stringently, but not absolutely, and permits government to encourage responsibility and inculcate civic virtues without sacrificing personal autonomy to collective determination.

The battle over same-sex marriage is one of many current controversies the authors use to defend their understanding of the relationship among rights, responsibilities, and virtues. Against accusations that same-sex marriage severs the rights of marriage from responsible sexuality, procreation, and parenthood, they argue that same-sex couples seek the same rights, responsibilities, and goods of civil marriage that opposite-sex couples pursue. Securing their right to marry respects individual autonomy while also promoting moral goods and virtues. Other issues to which they apply their idea of civic liberalism include reproductive freedom, the proper roles and regulation of civil society and the family, the education of children, and clashes between First Amendment freedoms (of association and religion) and antidiscrimination law. Articulating common ground between liberalism and its critics, Fleming and McClain develop an account of responsibilities and virtues that appreciates the value of diversity in our morally pluralistic constitutional democracy.