Terra Nullius: Named for legal doctrine, novel dives deeply into human identity

I'm not easily moved by fiction, so I don't make recommendations lightly.  And you need to read this book.

Terra Nullius by Claire G. Coleman (Amazon) has been a hit in Australia and thankfully was picked up for U.S. circulation by a small, Massachusetts-based publishing house, Small Beer Press.  The book has been shortlisted or nominated for a bunch of prestigious awards and won the Norma K. Hemming for exploration of themes of race in speculative fiction.  The book is a product of the Queensland "black&write!" indigenous writing fellowship.  Coleman identifies with the Noongar people of the southwestern coastal region of Australia.  A poet and writer, this is her debut novel, and she wrote it while exploring indigenous lands in a caravan.

The "speculative fiction" element of Terra Nullius is not immediately obvious in the telling of the story.  I won't spoil it here, and I urge you to avoid spoilers so that you can experience it yourself.  Even so, being married to a librarian, who recommended this book to me, I knew something of the novel's secret.  I was gripped early nonetheless, and the reveal was still richly enchanting.  For a while I had to ponder, why did Coleman tell the story this way?  But I got it, and the author interview in my Small Beer Press edition confirmed: Coleman's narrative delivers empathy for the indigenous experience in a way that I have never before witnessed.

There are countless parallels between Coleman's take on indigenous life and British colonization and the experiences of other marginalized groups, including Africans amid European colonization and First Nations in the United States.  The title, "terra nullius," refers to the Latin term and legal doctrine meaning "nobody's land."  Specifically the term was employed by the British to legally rationalize claim to Australia, as if the continent had been uninhabited.  The term turns up in American law, too, to justify claims to this continent and the displacement of native peoples.  Coleman states that she has not yet been to the United States, but would welcome the chance to compare notes on our reservations.  I would love to witness that conversation.  In ironic coincidence, I read Terra Nullius while exploring the reputed landing sites of Christopher Columbus on the Samaná Peninsula of la República Dominicana.  There are scarcely few more apt places on earth to consume this book.

While the focus might be on the indigenous perspective, this novel, in its sum, speaks even more ambitiously to the whole of our human experience.  It demands that we interrogate who we are as a species; that we ask whether confrontation and violence—might makes right—are intrinsic to our human identity, or a choice that we make, something we can change.  It comes clear that our survival may well depend on the answer.

New Kramer book tells tales of civil rights

My friend and colleague, and scholar extraordinaire, Professor Zachary Kramer has just published a new book on civil rights, Outsiders: Why Difference is the Future of Civil Rights.  Knowing Professor Kramer's ability to relate a compelling narrative, I expect this book is a great read, and I can't wait to get my hot little hands on it.  Here is the description from Oxford University Press.

Contemporary discrimination has changed in important ways from the forms it took in the 1960s, the era in which our civil rights law system originated. Previously, the primary targets of discrimination were groups: African Americans, women, and Latinos, among others. The goal of the Civil Rights Act of 1964 was to integrate marginalized groups into civic life, shatter ceilings, and break down barriers. The law sought to make us better people and America a more equal nation.

And it has. Discrimination against groups still occurs, but affected groups can marshal the rights regime to target and eliminate discriminatory policies. The challenge today, however, is to protect the individual, and our civil rights laws struggle with this. The people most likely to face discrimination today are those who do not or cannot conform to the whims of society. They are the freaks, geeks, weirdos, and oddballs among us. They do and wear strange things, have strange opinions, and need strange accommodations.

Outsiders is filled with stories that demand attention, stories of people whose search for identity has cast them to the margins. Their stories reveal that we have entered a new phase of civil rights and need to refresh our vision. Instead of dealing in protected traits, civil rights law should take its cue from religious discrimination law and provide a right to personality. Outsiders seeks to change the way we think about identity, equality, and discrimination, positing that difference, not sameness, is the feature of our age and arguing for a civil rights movement for everyone.

Professor Kramer is associate dean of faculty, professor of law, and Willard H. Pedrick Distinguished Research Scholar at the Sandra Day O'Connor College of Law at Arizona State University.

New scholarly treatise examines global water deficit

My colleague and friend Dr. Piotr Szwedo, Jagiellonian University, has published the new treatise, Cross-Border Water Trade: Legal and Interdisciplinary Perspectives (2018), appearing as volume 32 of Brill-Nijhoff's Queen Mary Studies in International Law series.  With water law being a key emerging issue around the globe in our contemporary times, this volume marks an important contribution to the literature.  Congratulations, Piotr!  Download the PDF flyer for your library.  Here is the publisher's description:

Cross-border Water Trade: Legal and Interdisciplinary Perspectives is a critical assessment of one of the growing problems faced by the international community — the global water deficit. Cross-border water trade is a solution that generates ethical and economic but also legal challenges. Economic, humanitarian and environmental approaches each highlight different and sometimes conflicting aspects of the international commercialization of water. Finding an equilibrium for all the dimensions required an interdisciplinary path incorporating certain perspectives of natural law. The significance of such theoretical underpinnings is not merely academic but also quite practical, with concrete consequences for the legal status of water and its fitness for international trade. 

Piotr Szwedo, Ph.D. habil. (b. 1979) is a lecturer in international law and Head of OKSPO Centre for Foreign Law Schools at the Jagiellonian University in Krakow. He published monographs and articles on international economic law and global governance. 

Table of Contents

Preliminary Questions
    Pages: 1–38
 

In Search of a Regulatory Model
    Pages: 39–89
    

Water as an Article of Trade in WTO Law
    Pages: 90–130
 

Water Trade in the International Practice of States
    Pages: 131–207
 

Principles and Institutions of International Law as Conditions of and Restrictions on Water Trade
    Pages: 208–315

Ending Notes 

Book Review (Preview): Turbulent World of Middle East Soccer, by James Dorsey

My book review of James M. Dorsey's Turbulent World of Middle East Soccer (Hurst 2016) has been published at 52(6) International Review for the Sociology of Sport 772 (2017).  Below is a preview; read more at IRSS from Sage.

Dr. Dorsey's blog also is titled, The Turbulent World of Middle East Soccer.  For the opportunity to write and publish this review, I am indebted to Dr. Colin Howley, Richmond University in London, and to the editors at IRSS.

--

 James M Dorsey, The Turbulent World of Middle East Soccer, Hurst Publishers: London, 2016: 359 pp.: ISBN: 9781849043311, £15.99 (pbk). 

....
No interest in soccer ('football' in most of the world) is prerequisite to the read. Dorsey himself acknowledges in the book's introduction that soccer was 'a journey into the unknown' for him, and—though he is co-director of the Institute for Fan Culture at the University of Würzburg—he disavows personal fandom. Rather Dorsey analogizes soccer, 'the world's most global cultural practice', to a 'prism'. Just as a prism separates white light into its constituent colours, Dorsey's study of soccer disentwines the modern Middle East into 'sport, society, culture, politics and development'....

Book Review: So You've Been Publicly Shamed, by Jon Ronson

In an afterword to his 2015 book, Jon Ronson reported that So You’ve Been Publicly Shamed was not the first-draft title.  

Indeed, it must have been a struggle to name this wide-ranging volume.  Ronson explores shame in many contexts, from the woman whose off-color joke about AIDS on Twitter “blew up [her] life” (as the N.Y. Times put it) to the clients of a busted prostitution outfit, to the featured participant in “a German-themed BDSM orgy” (as the New Statesman put it).  I’m not here naming the Twitter woman, because if you read the book, I think you’ll agree she’s been named—and shamed—more than enough.

By Ronson’s broad definition of public shaming, I’ve been there.  Ronson does little to distinguish those who fairly earned some degree of public shaming—such as a journalist who made up quotes—from those who were disproportionately rebuked, or just misunderstood, or falsely maligned.  Ronson’s light touch with judgment—he admits he has not always been so evenhanded in his own social media life—frustrated me at first, as I’m one who likes to see justice done, or at least to wring my hands when it’s not.  However, I came to appreciate Ronson’s approach.  His reluctance to reach normative conclusions forced me, as reader, to acknowledge my own.  Do I really know how This American Life fact-checks, say, David Rakoff, versus Mike Daisey (see “Retraction”)?  Do I need to have an opinion at all on what consenting adults do in their sex dungeon?  (See also extended adventures with Jon Ronson in the porn world at his 2017 podcast, The Butterfly Effect, coming to iTunes free in November.)

Judgment would get in the way of Ronson’s search.  Chapter to chapter, Ronson leads us in a dogged effort to understand the shaming mob.  (Cf. the excellent work of Prof. Ken Westhues on mobbing.)  When does the mob spring into action, and when does it not?  Ronson tells stories of public shamings from the perspectives of the victims.  He went to the trouble of tracking them all down to get their stories; the Internet doesn’t usually bother.  (In my experience, neither does The New York Times, nor even a respectable author.)  Can the victim do anything to fight back against a public shaming?  Ronson gives us a fascinating glimpse into the sometimes shady world of online reputation management.  And ultimately:  Is there such a thing as redemption in the Internet age?

That was the question that kept me turning pages.  Coverage of Ronson’s book since 2015 really obsessed on the implications of social media, but this book is about so much more than that.  Despite my ongoing research into online erasure, or “the right to be forgotten” (e.g., here and here, and an exciting panel discussion at NCA 2016, reported here and here), I was surprised to see Ronson make the connection.  He considers the RTBF later in the book, tackling the conflicted feelings about RTBF that a lot of people in the journalism world have over interacting rights to expression, privacy, and identity. 

I continue to be captivated by the redemption problem, which I wrote about in a Washington Post opinion column some years ago.  I won’t tell where Ronson’s search leads, because that would spoil the fun.  Suffice to say, there’s plenty of work yet to do, if justice is really our aim.

Book Review: The Experimental Society by Marshall S. Shapo

Catching up on reading since the close of the spring semester, I just finished Professor Marshall Shapo’s The Experimental Society (Transaction Publishers (now Routledge) 2016) (385 pp.) (publisher, Amazon, SSRN abstract, author interview) (385 pp.).  I highly recommend the book, which is fit for general audiences, besides lawyers and law students.

The experiment of the book’s title refers loosely to the American mix of free market and tort litigation, which works out the rules for what is allowed and not allowed in our society.  The dynamic is most plain in product liability.  A manufacturer brings to market a new and useful product, such as asbestos.  Later it’s learned that the product poses a grave risk to human health.  In extracting accountability for physical injury, the tort system regulates the continued use of asbestos.

What this system ill accounts for is its human toll.  The tort system is a balancing act.  Extreme regulation (vetting?) of everything new—a drug, a car, or a method of cleaning floors—would make research and development prohibitively expense and smother innovation.  Injury and death would result from drugs never developed, or safety innovations never deployed.  At the other extreme, diminished accountability would sanction the prioritization of profit over life.

Civil conflict resolution—our litigation system—threads, marks, and forever revises the boundary between right and wrong.  But our dependence on that system presupposes optimal, if not ideal, efficiency.  In reality, our tort system is rife with inefficiencies.

The starkest of those inefficiencies might be time.  I just takes too long to reach a conclusion in U.S. litigation—months, years, and sometimes decades.  While the wheels of justice grind, injured persons are not made whole, and new victims are claimed.  Another inefficiency is “transaction costs,” that is, the cost of dispute resolution, which is compounded by time.  Our drive for just and precise outcomes means that lawyers, experts, and litigation soak up a disproportionate amount of resources—if a matter can be litigated at all—re-victimizing the injured plaintiff and penalizing a defendant that might or might not have done anything wrong.

But inefficiencies get worse still, as the tort system tends to perpetuate socio-economic inequalities and irrational discriminations.  A poor community, less able to accomplish political organization or campaign contribution, cannot finance tort litigation to combat the impact of industrial pollution as effectively as a wealthy community can.  Even after wrongdoing is established in tort litigation, awards turns on loss, meaning that the working poor and the unemployed have less to recover than the injured doctor or lawyer.  These socio-economic effects exaggerate systemic prejudices of race and gender.  Moreover, bias can be perpetuated in fact-finding through judge and jury in a case.  And bias finds its way even into law itself, such as in liability standards that favor the alienation of real property—and therefore those who can afford it.

The Experimental Society examines the real social impact of our litigation system as hall monitor.  Shapo engages briefly with the familiar territory of product liability for asbestos and cigarettes.  But with that historical foothold, the book ranges widely to examine contemporary risks, such as bisphenol A (BPA) and vaping.  Shapo moreover expands his inquiry well beyond straightforward product liability.  He engages at length with environmental contamination, examining fracking, oil spills, and nuclear accidents.  He considers threats to the food supply, such as mad cow disease with its mysterious pathology.  Shapo also thinks expansively about experiment, embracing in his analysis both the deliberate experimentation of human clinical trials and the inadvertent yet ultimate experiment of climate change.

This encyclopedia of troubling experiments under way in our world delineates one axis of Shapo’s inquiry.  Meanwhile he draws a second axis, which traces the anatomy of risk and rules.  About the first half of the book explicates case studies to the end of broadly defining risk and experimentation.  The latter half of the book dives deep into dispute resolution, considering how this broad range of experimentation in our society has generated various standards, rules, and remediation systems in workplace safety, consumer protection, and mass tort litigation.  Shapo’s end-game, reached in the final chapters, considers the interplay of our experimental society with cultural and moral factors—for example, our values with respect to personal responsibility, risk-utility economics, and technological determinism.

As the back cover of The Experimental Society reminds us, Marshall Shapo—the Frederic P. Vose Professor at Northwestern University Law School, and, disclosure: my lead co-author on the casebook Tort and Injury Law, and a treasured mentor—has been writing about injury law for half a century.

Yet however much the product of an elder statesman in tort law, The Experimental Society is boldly contemporary.  The book is a one-stop shop for anyone who wants to tour the leading edge of risk, health, and law.  The relevant science and technology, business and economics, and law and policy all are laid out in plain language to engage any reader interested in the human condition.

The Experimental Society disappointed me in one respect only: it offers no answer.  The reader should be warned that the book ends with only the urgent question it raises, where the balance should be struck in our tolerance of risk.  This is not The Secret, with the promise to invigorate your fortunes; nor Hidden Figures with its revelatory moral tale; nor the latest blueprint to fix our democracy.  The Experimental Society isn’t selling answers.

Though I was disappointed not to find at the book’s end that Shapo’s wealth of experience could map out The Better Way, that expectation was foolhardy on my part.  However skilled a researcher and writer, Shapo is after all a teacher.  He recounts in the book a Socratic game he played with his eight-year-old granddaughter to demonstrate for her, of all things, Ken Feinberg’s predicament in compensating economic loss after the BP oil spill.  In good American fashion, the girl favored compensation precisely and fully for everyone who suffered injury.  Shapo didn’t tell her that that, ultimately, would be impossible; he showed her.

And that’s what The Experimental Society does: it shows us a problem that is inherent in the human social condition.  It turns the problem over, so we can see it from every angle.  Risk, it turns out, is not antagonistic to life; risk is an indispensable condition of life.  Risk yields reward, and reward makes life worth living.  How do we manage that risk to maximize reward, and what costs are we willing to tolerate in its pursuit?  Shapo knows that that’s an ancient problem—older than Deuteronomy 19:5.  So in The Experimental Society, he does the best a teacher can: to restate an eternal question for a new age.