Stanford University Press Blog

The Stage Is Set

Envisioning a prosperous and progressive future for Latin America.

by ALEJANDRO TOLEDO

 

In the past two decades, Latin America has gone through a major transformation. You could even call it a renaissance. This renaissance could continue for many decades, transforming most Latin American countries into highly developed, socially more equal and deeply democratic societies. In these societies, today’s poor and lower middle classes would be full participants in vibrant, socially progressive, diverse national cultures, both part of and very influential in shaping the global knowledge economy. Yet, there is no assurance that the renaissance will continue; Latin America is at a crucial moment. Hard work, planning, and serendipity have led us to a time and place where we have a historic opportunity to make a giant leap forward.

Hard work, planning, and serendipity have led us to a time and place where we have a historic opportunity to make a giant leap forward.

Beginning in the late 1980s and early 1990s, Latin American countries implemented national development strategies based on economic reform and democratic governance. In the 2000s, these reforms helped the region attain sustained economic growth of almost 4.5 percent per year since 2003. With hardly a ripple, Latin American economies just kept expanding through the economic crisis of 2008–2009. Two of the big economies, Argentina and Peru, have had much higher annual growth rates of about 7 to 7.5 percent.

Achieving these levels of economic expansion has opened up tremendous opportunities for changing Latin Americans’ lives and for further strengthening democracy in the region. The sustained nature of this growth has had a major impact on poverty reduction, at least in terms of how many people earn less than $2 per day, which is the way international agencies measure poverty, or $1 per day, which is the way these agencies measure extreme poverty. According to the Economic Commission for Latin America and the Caribbean (ECLAC), based on these measures, the percentage of people living under the poverty line decreased from 42 to 29 percent in 2000–2011, and those in extreme poverty decreased from 18 to 12 percent.

The Mother of Invention

Do the pecuniary gains of intellectual property motivate innovation?

 

Incentivizing the “progress of science and the useful arts” has been the goal of intellectual property law since our constitutional beginnings, but artists, scientists, businesses, and the lawyers who serve them continue to debate the merits of IP law and to what extent it stimulates or stymies innovation and creativity. In her new book, Jessica Silbey, Professor of Law at Suffolk University, combs through hundreds of hours worth of interviews with creators, employers, and IP lawyers, to examine whether the statutes are serving their intended purpose. 

The following is an adapted excerpt from Jessica Silbey’s new book, The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property.

Rethinking the Social Question

How trade agreements inscribe class hierarchies on the emerging global order.

by MICHAEL D. KENNEDY

An anti-TTIP protest, October 2014. Photo by Garry Knight, CC-BY-2.0, via Flickr.

On November 19-21, 2014, politicians and academics from the world over assembled in Santiago to rethink the “social question” in global terms. Social reformers and socialists have debated how to address social rights and inequalities for well over a century, but typically within the nation. Globalization demands that we think increasingly about how to engage class formations across nations.    

The gathering in Santiago brought progressives from the U.S., Europe, Africa and Latin America together to discuss and analyze how class articulates international organizations and global flows. Trade agreements moved to the center of debate.

TTIP is more than an economic question; it is a question of who is writing the rules of the emerging global order.

The “Next Left” knowledge network—funded by the EU’s Foundation for European Progressive Studies and affiliated with the Party of European Socialists in the European Parliament—had already organized an October meeting in Washington to debate with Americans the Transatlantic Trade and Investment Partnership (TTIP). The Party of European Socialists needs to figure its place in that proposal for increasing trade and harmonizing regulations between the U.S. and the EU. Its support, or opposition, will determine the agreement’s fate within the European Parliament.

Botching the 8th Amendment

Does the death penalty constitute "cruel and unusual" punishment?

by AUSTIN SARAT

Lethal injection room. Public domain image via Wikimedia Commons.

2014 has been an extraordinary year for America’s death penalty. From the near miss abolition in New Hampshire to a California judge declaring the state’s death penalty unconstitutional; from a series of high profile botched executions to the April publication of a study estimating that 340 people may have been put to death unjustly since 1973 (a study, tellingly followed by the exoneration of two death row inmates)—capital punishment has been very much in the headlines. President Obama has even acknowledged that “In the application of the death penalty in this country, we have seen significant problems—racial bias, uneven application of the death penalty, you know, situations in which there were individuals on death row who later on were discovered to have been innocent because of exculpatory evidence. And all these, I think, do raise significant questions about how the death penalty is being applied.”

Comments like those of the president, headlines like the ones we’ve seen this year, indicate the turmoil that has come to surround the death penalty. Of late it seems the conversation about capital punishment has taken a sharply different direction. More and more Americans seem to be asking not what the death penalty does for us but rather what the death penalty is doing to us and to some of our most cherished values.

A New Era of Political Exclusion

Should wealth be permitted to amplify individuals' democratic participation?

by TIM KUHNER

In 1972, milk producers pledged $2 million to the reelection campaign of sitting president, Richard Nixon. In response, Nixon’s administration provided price supports worth over two hundred times that amount. Clement Stone, Nixon’s top individual campaign contributor, also gave $2 million. Meanwhile, the average contribution of Nixon’s largest ten donors was $400,000 each. The record from the Watergate Scandal documents the corruption that resulted, including the selling of ambassadorships and public acts to large campaign contributors. Never once since Watergate had it been legal for any single donor to donate such large sums to candidates and party committees—until this April that is.

Going forward, an ever-tinier sliver of wealthy Americans will control the financing of campaigns and political parties.

Handed down on April second of this year, McCutcheon v. FEC strikes down the federal limit on the total amount of money that any particular donor could give to candidates, PACs, and party committees. The Federal Election Campaign Finance Reform Act— Congress’ response to the Watergate Scandal—prohibits any donor from giving more than $5,200 to any one candidate, $32,400 to a single national party committee, $10,000 to any state or local party committee, and $5,000 to any particular PAC. Beyond those “base limits,” the Watergate reforms also implemented “aggregate limits,” prohibiting any particular donor from giving over $123,200 total to all candidates, PACs, and party committees.

Copyright in the Digital Age

What do new cord-cutting technologies mean for copyright law?

by JESSICA SILBEY

Aereo's digital antennae allow subscribers to stream broadcasts transmitted over public airwaves.

In the newest iteration of DVR technology, Aereo—a newly launched tech company in New York City—has come under fire for selling a service that allows subscribers to watch television programs over the Internet. Aereo’s unique business model consists of leasing antennae to subscribers who can then retransmit television broadcasts (hours or even just seconds after their original air-time) to their internet-enabled devices, whether a laptop, tablet, or smartphone. As of 2012 the service offered the retransmission of programming from twenty-eight channels, including all major broadcast channels. 

Alarmed by this latest innovation in the cord-cutting online TV trend, a slew of broadcasters, including such heavy-hitters as CBS, NBC, ABC, and Fox, sued the nascent company for copyright infringement. They construe Aereo’s business model as analogous to that of a cable company—as a redistribution channel for media to the public—the only problem is, unlike the cable company, Aereo does not pay a license to television producers or broadcasters to retransmit that media, and in their view, is in violation of their copyright claims. Aereo, however, argues that its service is more akin to existing DVR, VCR, and DVD technologies—other equipment-based technologies whose “record” and “play” functions, under the current law, do not constitute copyright infringement.

Religious Freedom in the Commercial Sphere

Are people organized as corporations entitled to constitutional rights?

by ILYA SOMIN

Hobby Lobby Store in Ohio. Creative Commons image via Wikimedia Commons.

The Supreme Court’s recent decision in Burwell v. Hobby Lobby addressed a seemingly narrow issue: whether the Obamacare regulation requiring corporate employers to provide insurance plans that cover contraception violates the Religious Freedom Restoration Act in cases where the employers in question have religious objections to some or all contraceptives. But the Court’s ruling also makes a crucial broader point: that people are not required to give up fundamental legal rights when they organize themselves into a corporate body. That principle has important implications for constitutional law. It is a vital protection for individual rights in a society where we unavoidably conduct much of our business and charitable activities by using corporate organizations.

It is indeed true that corporations are not people. But those who own and operate them are.

RFRA was enacted in 1993 with overwhelming bipartisan support. It protects religious freedom by requiring the federal government to prove that laws that “substantially burden” the free exercise of religion are the least restrictive means to protecting a “compelling” government interest. The owners of Hobby Lobby Stores and other businesses involved in the case objected to being forced to provide insurance for some forms of contraception because they belong to the small minority of Americans who believe that some or all types of artificial contraception violate the dictates of their religion.

Constitutional Questions of 2014: A Blog Series

From Hobby Lobby to capital punishment—a reflection on this year's constitutional issues.

As the Supreme Court returns to the bench on Monday, the Stanford Press blog offers a brief retrospective on some of the defining constitutional questions of 2014, including commentary on such high profile cases as Hobby Lobby, McCutcheon, and Aereo, as well as a reflection on perhaps one of the biggest constitutional quandaries not to feature on the SCOTUS docket this year: the death penalty and its concomitant legacy of botched procedures. See the full lineup for this week’s series below.

RELIGIOUS FREEDOM
IN THE COMMERCIAL SPHERE
Are people organized as corporations entitled to constitutional rights?
by ILYA SOMIN
Tuesday

COPYRIGHT IN THE DIGITAL AGE
What do new cord-cutting technologies mean for copyright law? 
by JESSICA SILBEY
Wednesday

A NEW ERA IN POLITICAL EXCLUSION
In a democratic state, should wealth be permitted to amplify individuals’ political influence?
by TIM KUHNER
Thursday

BOTCHING THE 8th AMENDMENT
Does the death penalty inherently constitute “cruel and unusual” punishment?
by AUSTIN SARAT
Friday

Quiz: How Well Do You Know the Constitution?

Think you're a True American? Time to put your Benjamins where your mouth is.

Your Rugged Constitution tells us that the U.S. Constitution is like a "blueprint" for a "House of Freedom." How well acquainted are you with the architecture of the nation's founding document? Answer the following questions and then click the submit button to see how you scored. Best of luck fellow patriot!

Your Rugged Preamble

The nation’s founding document, as imagined by the midcentury American imagination.

In 1952, Stanford University Press published a guide for young American readers to aid them in their understanding of the United States Constitution. Now in reissue over 60 years later, the book not only serves its original purpose, as a concise resource on the history and purpose of the nation’s founding document, but it also offers a window into the patriotic imagination of the midcentury—a time characterized by communist fear-mongering and a prevailing sentiment of national exceptionalism (a retro 50s ethos, if you will).

Illustrated with equally retro 50s-style line drawings, the book considers each part of the Constitution in turn, elucidating passages and considering the Framers’ intent. To celebrate Constitution Day, we’ve excerpted a portion from Your Rugged Constitution below so that you (yes, you, fellow American!) can brush up on the nation’s famous Preamble.

The following is an excerpt from Your Rugged Constitution:

A Retro Reprint

A 50s-era guide to the American Constitution gets a new lease on life.

Over sixty years ago Stanford University Press published what quickly became a definitive (and lively) illustrated guide to the U.S. Constitution; a book of enduring charm entitled Your Rugged Constitution. Moving methodically from Preamble to the 22^nd Amendment, the book offers a line-by-line explanation of the Constitution’s original text with concise and accessible commentary. Originally intended to be used as a textbook, it became a classroom standby for a generation of young Americans, surviving on school syllabi until well into the 1970s.

By the turn of the millennium, however, the book had fallen into relative obscurity (well, save for a handful of wistful Amazon reviewers). Long buried in the Press’ archives, it wasn’t until recently, when the Press’ backlist was being scanned for Google, that Director Alan Harvey took notice of the book—along with all its myriad editions and translations. Struck by its novelty, he asked then Law Editor (now Editor-in-Chief), Kate Wahl if she would want to reprint it. Though the will was there, at the time, printing technology was such that a full-color reprint of the book would not have been cost-effective, yet a black-and-white version would hardly do justice to the book’s many illustrations. “But now,” says Harvey, “we can afford to print it in color and make it cool.”

Busting the Boom Towns

On the rise and decline of America’s cities in the 20^th century.

Detroit's skyline. Creative Commons image by Meagan via Flickr

The United States is one of the most urban nations on the planet, with 81% of its total population residing in cities. Of course, it wasn’t always so; at the turn of the 20th century, the majority of citizens lived on farms, in small towns, and around other rural outposts, but by 1920—after decades of industrialization—the scales tipped in favor of urban living. Waves upon waves of immigrants coalesced with other drastic socioeconomic changes to bolster city growth in the ensuing decades. Throughout the 20th century (and still today) the steady rise of urban populations seemed unstoppable—and by and large it was. But while the growth never stopped, it did sputter—substantially.

That sputtering, often characterized by “white flight”, rising crime, and derelict buildings, took place predominantly over the course of the late-60s through the 80s, and it is this moment that forms the point of departure for Stephen J.K. Walters’ Boom Towns: Restoring the Urban American Dream. As Walters notes “library shelves groaned under the weight” of books trying to diagnose the causes behind the baffling decline of and divestment from America’s cities—none of which, by Walters’ estimation, quite hit the nail on the head. In his book he posits what he sees as the real culprit behind urban decline—still at large today, hamstringing growth and capping the potential for citywide prosperity. What follows is an excerpt from the first chapter of his book, “What We’ve Lost—And Why” in which he describes the boom and post-World War II bust of the U.S.’ major industrial cities.

The Social Construction of Race

Osagie K. Obasogie conducted hundreds of interviews with blind people in order to better understand how race works.

“Blind people by virtue of not being able to see—they are much more in tune and in touch with the social processes that produce that visual understanding of race.”

—Osagie K. Obasogie

 

When puzzling out the social significance of race and how it’s constituted in American society, Osagie K. Obasogie took a decidedly novel approach. Given that visual input plays a crucial, it not central, role to how we perceive race and attach meaning to it, Obasogie decided to investigate how the racial calculus changes when sight is removed from the equation.

Conducting over a hundred interviews, Obasogie took a sweeping survey of people who had been blind since birth. In his interviews he probed their concepts of race, trying to suss out how racial understanding is learned, internalized, and acted upon by those who don’t have access to the same (seemingly) self-evident visual input as sighted people.

Obasogie sat down with The Society Pages to discuss his findings and what it means for Critical Race Theory: 

The Society Pages interviews Osagie Obasogie

You can see Obasogie’s and other podcasts from this series on The Society Pages’ website.

Oklahoma's Botched Execution: A Game-Changer?

Debate over the death penalty has been reignited by a failed lethal injection.

On Tuesday Clayton Lockett became the latest case in a long litany of botched executions to muddy America’s capital punishment record. European drug manufacturers, reluctant to associate their pharmaceuticals with the death penalty, have cut American prisons off from lethal drugs like pentobarbital and sodium thiopental, which has left prison officials scrounging for substitutes. The 3-drug protocol Oklahoma used to execute Lockett this week was an entirely untested cocktail that produced ghastly results and incurred stern censure from President Obama’s top spokesman on Wednesday.

Lockett’s execution has since provoked a maelstrom of debate around the death penalty and its modes, effects, and moral implications. Austin Sarat, law professor and author of the timely book, Gruesome Spectacles: Botched Executions and America’s Death Penalty has been a go-to commentator for news outlets seeking insight on the Oklahoma execution and the death penalty more broadly. In the following 23-minute interview with Northern California’s NPR affiliate, Sarat is asked if Lockett’s botched execution is a game-changer for the death penalty debate—and he says it is.

 

Gruesome Spectacles is a history of botched, mismanaged, and painful executions in the U.S. from 1890–2010.

The 8th Amendment prohibits cruel and unusual punishment, with the long-held judicial stance on the death penalty being that execution methods that effect the “mere extinguishment of life” without inflicting undue pain, satisfy this standard. Botched executions throw a wrench in this formula, however, as the effects of a state execution gone awry are often tantamount to torture for the condemned.

With each successive method of execution—electrocution, lethal gas, and now lethal injection—the advertised virtues have always been that each method was more humane than the one preceding it, owing to the rationale that improved technology yielded ever-quicker and ever-cleaner outcomes. But Sarat maintains that this romance with new technologies oftentimes obscures the truth. Lethal injection, for example, has the highest error rates of any death penalty mechanism since 1890—including the noose. On this, Sarat is unequivocal: lethal injection is “the worst method of execution since the 19th century.”

A Roberts Court Re-Write of Rawls

What philosophical compass guides the Roberts Court's take on political equality? Forthcoming author, Timothy Kuhner takes a stab at this question in his forthcoming book, Capitalism v. Democracy.

The recent ruling in McCutcheon v. Federal Election Commission has left many observers gobsmacked and reeling. Doubling down on Citizens United, the decision does away with a decades-old law that capped individual’s total political contributions in a given election cycle and has been widely viewed as another benchmark in the Roberts Court’s use of capitalist ideology to interpret the Constitution.

Timothy Kuhner, in his forthcoming book, Capitalism v. Democracy: Money in Politics and the Free Market Constitution, takes a look at the case law and conceptual shifts in the Supreme Court that paved the way for the McCutcheon ruling.  Reviewing cases including Buckley v. Valeo, Citizens United, Davis and Bennett and several others, Kuhner traces the legal pathway that has gradually shaped democratic participation into a transactional market. Such thinking has led to the current court’s line of thinking, in which regulatory measures meant to ensure political equality are construed as unconstitutional restraints on first amendment expression. In a parody of these priorities, Kuhner cites John Rawls’ canonical work, A Theory of Justice, and imagines a tongue-in-cheek Roberts Court re-write of Rawls’ ideal scenario for equal political access in a democratic society: 

Let us take well-known principles in the way of a familiar place, and measure the distance between these principles and those used by the Roberts Court. . .
            In his seminal work, John Rawls wrote:

 The constitution must take steps to enhance the value of equal rights of participation for all members of society . . . Those similarly endowed and motivated should have roughly the same chance of attaining positions of political authority irrespective of their economic and social class . . . The liberties protected by the principle of participation lose much of their value whenever those who have greater private means are permitted to use their advantages to control the course of public debate.

 Austin and McConnell served Rawls’s principles, which are also familiar from our discussion of egalitarianism; however, in Citizens United, Davis, and Bennett [and now, McCutcheon], the Court effectively made these revisions:

 The Constitution must take steps to safeguard the market-calibrated value of rights of participation for all members of society including corporations . . . Those similarly endowed with the strengths of wealth and wealthy supporters, and similarly motivated to exploit those strengths should have roughly the same chance of attaining positions of political authority and influencing the public debate . . . The liberties protected by the principle of participation lose much of their value whenever those who have greater public means are permitted to use their advantages to control the course of public debate.

With a Supreme Court assertively emphasizing free market values seemingly over and above principles of equal representation, Kuhner argues that the only reliable way to circumvent the court’s stance on political finance is to go directly to the source with a constitutional amendment.

Kuhner asserts that the Supreme Court’s mercurial rulings on political finance emerge from the Constitution’s deference to personal ideology in matters of political funding. This constitutional silence has in turn created a vacuum for contradictory judicial interpretations. The most recent iteration of judicial opinion, spearheaded by the Roberts Court, is widely perceived as a threat to the integrity of the American democratic system, leading Kuhner to conclude that “the underlying questions—democracy or plutocracy, capitalism or crony capitalism—are for the people and their representatives to decide, not the Supreme Court.”


Suggested links on the McCutcheon case:

• “Everything you need to know about McCutcheon v. FEC” Washington Post
• “The John Roberts Project” The New Yorker
• “McCutcheon’s Silver Lining: How It Could Undermine Super PACs” The Atlantic
• “Originalists Making It Up Again: McCutcheon and ‘Corruption’” The Daily Beast