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Abstract:
Restorative justice needs something to restore, and one key thing it is very often said to restore is, in some formulation or other, "community." But "community" is a very dangerous concept. Sometimes it means very little, or nothing very coherent; sometimes it means so many things as to become useless in legal or social discourse; and sometimes the sunny harmonious sound of the very word "community" masks conflict and indeed discriminatory exclusion, or at least arbitrary political arrangements (as in "the international community"). This paper explores the various uses of the "community trope," from "community" as an ideal to "sense of community" as a social goal, to "the community" as a supposedly identifiable social entity to "the [group name] community" as the designation for a certain social, racial, ethnic, or other associations. It argues that greater self-criticism in the use of these tropes is essential to a thoughtful programs in the area of restorative justice. The paper offers such admonitory examples as the "deinstitutionalization" of mentally ill people in the 1970's, an unequivocal social and economic catastrophe that was motivated in part, the paper argues, by widely shared, unexamined notions of how gravely disabled and often abandoned people could be treated "in the community."

Abstract:
This paper cautiously assays the notion of a "canon" of writings in criminal law and procedure in the Anglo-American tradition. Identifying "canonical" writings from Blackstone to Bentham to Foucault, from classic Victorian case law to Wechslerian legal process, from modern empiricist scholars to skeptical post-modernism, it posits a core, if not unifying concern: How to reconcile the deserved with the useful. As we calibrate proper punishments for crimes and persons, and devise the best procedures for implementing those definitions, we must avoid any easy pluralism and face perennial questions: How do we generate consistent rules on the basis of inconsistent premises? What manifestations of character merit moral condemnation? How do we avoid degrading character into a mere sum of acts? Why should it matter whether a criminal causes harm? Because if he has caused harm he deserves punishment or because if he caused harm then punishing him will prevent future harm? And so most generally, the great writings have worried over a fundamental agony of liberalism--that a jurisprudence aimed at enhancing both desert and utility can make certain adjustments but can hardly achieve grand philosophical resolution.

Abstract:
This article critically reviews the work of the law-and-social norms school of legal scholarship, and its application to criminal law in particular. It argues that this school has gone down a misguided path in purporting to have discovered a distinct and definable approach to law and social behavior. The norms school claims either to reform or fine-tune social science or to add an entirely new phenomenological dimension to social science about criminal law. Yet it performs simplistic extractions from social sciences whose disciplinary rigor it ignores, and claims new disciplinary technique it fails to demonstrate. It is in that sense a symptom of the continuing anxiety of contemporary legal scholarship about its inability to devise a satisfactory alternative to economics or rational choice. The norms school wins short-term political purchase by claiming valence in policy analysis, but it does so in part because, especially in criminal law, a superficial look at norms ties in very easily with short-term cultural, political, and social trends. It also grants itself a normative halo by borrowing from the vocabulary and intellectual capital of the Humanities, but without any of the attention to interpretive complexity the Humanities demands. The article concludes that legal scholars interested in the sources and effects of social norms should return to the well-developed traditions of ethnography and criminology and to a sociology of crime that acknowledges the many-layered effects of labor markets and broad economic forces.

Abstract:
This paper extends the argument made in Sanford Levinson's 1989 article, The Embarrassing Second Amendment, in which he made the case for a broad reading of individual gun rights consistent with liberal Warren Court jurisprudence. I first note that the Second Amendment poses an anomalous "quadrilemma" for anti-gun liberals: it must be either a minor technicality about federalism and regulation; a moot constitutional prop for a vestigial military concept; an illegitimately disrespected part of the sacred panoply of rights enacted in 1791; or--the ultimate challenge for liberals--a wholly illiberal or retrograde provision of the Bill of Rights. This last reading becomes plausible once we avoid the constitutional sentimentalism whereby we strive mightily to ensure that our views on the constitutionality of legislative policy are roughly harmonious with our views of the wisdom of legislative policy. This reading finds some support in the perceived historical fact that the United States is an exceptionally violent or homicidal nation, so that its commitment to individual rights, properly applied to guns, leads to social disaster. Thus, I add the assumption of "American violence exceptionalism" to the mix of embarrassments evoked by the Second Amendment debate, and I then consider how both anti-gun liberals and pro-gun conservatives in the Second Amendment debate deal with the violence exceptionalism problem. For example, the pro-gun side often adopts a posture of tragic, acquiescent wisdom towards American violence, accepting some irreducible level of violence and even arguing that we may have achieved "optimal" violence. Meanwhile, anti-gun liberals needs to find ways to decry American violence while also reconciling the fact of our violence exceptionalism with their reliance on some sense of core American values that can animate a liberal constitutionalism.

Abstract:
Social science has long played a role in examining the efficacy and fairness of the death penalty. Empirical studies of the deterrent effect of capital punishment were cited by the Supreme Court in its landmark cases in the 1970s; most notable was the 1975 Isaac Ehrlich study, which used multivariate regression analysis and purported to show a significant marginal deterrent effect over life imprisonment, but which was soon roundly criticized for methodological flaws. Decades later, new econometric studies have emerged, using panel data techniques, that report striking findings of marginal deterrence, even up to 18 lives saved per execution. Yet the cycle of debate continues, as these new studies face criticism for omitting key potential variables and for the potential distorting effect of one anomalously high-executing state (Texas). Meanwhile, other empiricists, relying mainly on survey questionnaires, have taken a fresh look at the human dynamics of death penalty trials, especially the attitudes and personal background factors that influence capital jurors.

Capital punishment, econometrics, sentencing, life imprisonment, juries, discrimination

Abstract:
In this book, the first to offer a comprehensive examination of the emerging study of law as literature, Guyora Binder and Robert Weisberg show that law is not only a scheme of social order, but also a process of creating meaning, and a crucial dimension of modern culture. They present lawyers as literary innovators, who creatively interpret legal authority, narrate disputed facts and hypothetical fictions, represent persons before the law, move audiences with artful rhetoric, and invent new legal forms and
concepts. Binder and Weisberg explain the literary theories and methods increasingly applied to law, and they introduce and synthesize the work of over a hundred authors in the fields of law, literature, philosophy, and cultural studies.

Drawing on these disparate bodies of scholarship, Binder and Weisberg analyze law as interpretation, narration, rhetoric, language, and culture, placing each of these approaches within the history of literary and legal thought. They sort the styles of analysis most likely to sharpen critical understanding from those that risk self-indulgent sentimentalism or sterile skepticism, and they endorse a broadly synthetic cultural criticism that views law as an arena for composing and contesting identity, status, and character. Such a cultural criticism would evaluate law not simply as a device for realizing rights and interests but also as the framework for a vibrant cultural life.

Abstract:
Professors Binder and Weisberg expound a "cultural criticism" of law that views law as an arena for composing, representing, and contesting identity, and that treats identity as constitutive of the interests that motivate instrumental action. They explicate this critical method by reference to "New Historicist" literary criticism, postmodern social theory, and Nietzchean aesthetics. They illustrate this method by reviewing recent scholarship of two kinds: First, they explore how legal disputes take on expressive meaning for parties and observers against the background of legal norms regulating or recognizing identities. Second, they examine "readings" of the representations of character, credit, and value in commercial and financial law that emphasize the role of the figurative imagination in the creation of markets and market society. Professors Binder and Weisberg conclude that law does not so much represent a social world of subjects that exists independent of it, as it does compose that world. Accordingly, the criticism enabled by their "cultural" account of law is more aesthetic than epistemological.