History, Memory, and the Law

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Austin Sarat, Thomas R. Kearns
University of Michigan Press, 2009 M11 10 - 337 páginas
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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Contenido

An Introduction
1
Traumatic Narratives and Legal Repetitions
25
The Cases of Flaubert and Baudelaire
95
Reasoning about The Woman Question in the Discourse of Sex Discrimination
131
Prisons and the Law
183
Discriminating Marks in Legal History
249
The Regulation of Film and Radio Speech
283
Contributors
317
Index
317
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Página 266 - Segregation with the sanction of law, therefore, has a tendency to retard the educational and mental development of Negro children and to deprive them of some of the benefits they would receive in a racially integrated school system.
Página 170 - ... throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children. And although blacks were guaranteed the right to vote in 1870, women were denied even that right...
Página 157 - In this aspect of the matter, while the physical differences must be recognized in appropriate cases, and legislation fixing hours or conditions of work may properly take them into account, we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances.
Página 226 - The aspiration of men is to enjoy equality with the best when free, but on this broad continent not a single man of your race is made the equal of a single man of ours.
Página 119 - What seems beautiful to me, what I should like to write, is a book about nothing, a book dependent on nothing external, which would be held together by the internal strength of its style...
Página 296 - It cannot be put out of view that the exhibition of moving pictures is a business pure and simple, originated and conducted for profit, like other spectacles, not to be regarded, nor intended to be regarded by the Ohio constitution, we think, as part of the press of the country or as organs of public opinion.

Acerca del autor (2009)

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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