New Books In Law

“I am not smart. I invented smart to compel you to do what I want.” — The Reptile Any civil trial represents the culmination of many, many years of disciplined mental effort. Legal education generates learning, and the discovery process generates information.–Yet neither learning nor information can result in a verdict of liability. For that, you need a jury: and a jury operates, by design, on very different principles of decision-making. As Rebecca West wrote, “The whole point of a jury is that it is not learned … but chunks of laity, brought in for the special purpose of being unlearned.” Judges resolve the cases that can be decided by learning and logic. Attorneys settle out of court the ones that can be decided through gathering information.But in the end, when learned, reasonable people disagree, the case “goes to the jury” — and law professors lose interest. It is here that David Ball and Don Keenan‘s research begins. What happens in the

Lynn Stout‘s pathbreaking book Cultivating Conscience:How Good Laws Make Good People (Princeton University Press, 2010) represents a much-needed update to the discipline of law and economics. Using current social science and discarding threadbare premises, it develops new methods for theorizing and deploying law in its real-life context — starting from the simple observation that, as a matter of scientific fact, people are often remarkably and demonstrably unselfish. In updating her own field of study, Prof. Stout found herself, unexpectedly, calling into question one of its most cherished axioms. Scholars of law and economics had always begun with the assumption that people were “rationally selfish.” Cass Sunstein’s 2008 book Nudge called into question the first term of that formula; Prof. Stout, holder of an endowed chair in Corporate and Securities Law at UCLA, now challenges the second.On the evidence of this book, it seems more than possible that her insights will prove more

Is comedian and cultural critic Bill Cosby right–that black youth suffer from a cultural pathology that leads them to commit more crimes than their white counterparts? Is the remedy to the high rate of offending by African American men the “shape up or get shipped out” perspective? Is there more to African American offending than poor parenting or lousy schools? James D. Unnever is the co-author (with Shaun L. Gabbidon) of the new book A Theory of African American Offending: Race, Racism, and Crime (Routledge, 2011). This book builds on the assertion of sociologist and cultural critic W. E. B. Du Bois that theories of African American life, culture, and especially crime must deal with the unique circumstances and worldview of black people living in America. Unnever and Gabbidon take this assertion seriously as they develop a theory that the reading public in general and criminologists and lawyers specifically, indeed all associated with the criminal justice system, should read. I’ve r

What can judges do to change society? Fifty-seven years ago, the Supreme Court resolved to find out: the unanimous ruling they issued in Brown v. Board of Education threw the weight of the Constitution fully behind the aspiration of social equality among the races. The possibilities of law as an engine of social justice seem to be encapsulated in the story of the decision — and in the many decades of resistance to its enforcement. Today, there are those who argue that the Court failed in its goal, since actual racial mixing in U.S. schools has declined steadily over the last 35 years. But in her new book, In Brown’s Wake: Legacies of America’s Educational Landmark (Oxford UP, 2011), Harvard Law School Dean Martha Minow argues that the legacy of Brown should be viewed in a larger context. Neither a self-executing mandate for racial equality nor a futile rhetorical exercise, the decision was destined to become a lodestar for a wide variety of reformers in all areas of American society —

Copyright is one of those topics over which even two saints disagreed. The legend has it that Saint Columba and Saint Finnian engaged in an argument as Columba had secretly, and without the latter’s permission, copied a Latin Psalter owned by Finnian. When Finnian found out about it, he requested the copy, but Columbia refused to give it back. Dermott, the King of Ireland, decreed “to every cow belong its calf, so to every book belong its copy.” In 1925 the former Assistant Register of Copyrights in the United States, Richard De Wolf, pointed out that “the progress of copyright law does not take place by revolutions, but by successive stages. It resembles the growth of a city, in which, as time goes on, some parts are torn down and others are devoted to new uses..” However, this process has been historically riddled with controversy and disagreement, and not only among saints. Authorship rights and other questions related to the intellectual property became issues of major import

One hallmark of important art, in any medium, is a thoughtful relation with artistic precursors. Every artist reckons with heroes and rivals, influences and nemeses, and the old work becomes a part of the new. In Adam Bradley’s seminal monograph on hip-hop lyrics, Book of Rhymes, legendary MC Mos Def describes his desire to participate in posterity: “I wanted it to be something that was durable. You can listen to all these Jimi records and Miles records and Curtis Mayfield records; I wanted to be able to add something to that conversation.” In the last thirty years, technology has transformed the conversation between past and present musicians: it is now possible to quote a previous work not only note for note, but byte for byte. The turntable and the sampler are the hip-hop artist’s quintessential instruments. The culture of hip-hop bricolage, coupled with intense commercial pressures in the recording industry and an inevitable proliferation of rip-off artists, has created difficult c

What kind of education are students at top American law schools getting? And how does that education influence their activities upon graduation? In Walter Olson‘s Schools for Misrule: Legal Academia and an Overlawyered America (Encounter Books, 2011), the author, an economist and not a lawyer, looks at what is happening at our nation’s elite law schools, and its implications for citizens, businesses, and taxpayers. Olson, a Senior Fellow at the CATO Institute, describes what he calls the consensus view of law school faculties, and how hard it is for law students to find alternative points of view. He describes how the litigation explosion’s origins stem from the views of one influential professor, and the costs that this “American disease” imposes on our economy. In addition, he describes some revealing conflicts between trial lawyers and their allies that reveal the financial incentives motivating the testimony of certain scholars in favor of costly and often frivolous lawsuits.

Wrongful conviction is, both morally and practically, the worst mistake that society can inflict on an individual. From Franz Kafka to Errol Morris, from Arthur Koestler to Harper Lee, Western culture is deeply shaken at the prospect of the innocent person condemned. Outside of fiction, it used to be nearly impossible to prove a convict’s innocence to a level of certainty that could overturn the judgment of a jury: after all, twelve peers have found that it would be unreasonable even to doubt his guilt. In the absence of procedural error, society lacked any way to correct such a verdict. But in the late nineteen-eighties, with the advent of reliable DNA testing, that changed. One wrongful conviction is a tragedy; a hundred thousand wrongful convictions is a statistic. In his new book Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Harvard UP, 2011), Brandon L. Garrett tries to bridge the gap between the two. Drawing on court records and archives at the Innocence Project, he presents an e

Why did Reconstruction fail? Why didn’t the post-war Federal government protect the civil rights of the newly freed slaves? And why did it take Washington almost a century to intercede on the behalf of beleaguered, oppressed African Americans in the South? In a terrific new book, Charles Lane explains why. The Day Freedom Died. The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (Henry Holt, 2008) tells the tale of a little-known though remarkably important incident: the murder of close to 100 freedmen by a posse of White supremacists in Louisiana in 1873. Charles does an excellent job of narrating this heart-wrenching and disturbing event. The book would be worth reading for that story alone. But he really comes into his own in describing the legal aftermath of the slaughter. With all the skill of a seasoned reporter–which he is–Charles chronicles the passage of the Colfax case from the courts of New Orleans to the U.S. Supreme Court. The result was a landmark decisi

Franklin D. Roosevelt promised the country “bold, persistent experimentation” to address the Great Depression – but for quite a while his ideas were a little too bold for the justices of the Supreme Court, who struck down many New Deal laws as unconstitutional. FDR had his day: over the years he replaced many of those justices with his own men, New Dealers who then, as judges, worked boldly with the Constitution. Irascible, ingenious, and remarkably uncooperative, the four justices in Noah Feldman‘s Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices (Twelve, 2010) – Frankfurter, Douglas, Black, and Jackson – grappled with fundamental questions about government that are re-emerging in the Obama era. We have to answer them again, but Prof. Feldman has given us a constitutional handbook that is also an absorbing and entertaining quadruple biography. In our conversation, he situates the book among his other, quite disparate writings, and explains wh

Clausewitz famously said war was the “continuation of politics by other means.” Had he been unfortunate enough to witness the way the Wehrmacht fought on the Eastern Front in World War II, he might well have said war (or at least that war) was the “continuation of politics by any means.” Hitler was terribly specific about this. The Slavs, he said, were Untermenschen (subhumans). The Communists were Judeo-bolschewisten (Jewish Bolsheviks). Soviet soldiers were keine Kameraden (not comrades-in-arms). The East was future German Lebensraum (living space). All this meant that the ordinary rules of armed conflict had to be suspended. The German armed forces were to conduct a Vernichtungskrieg, a war of annihilation. The German military had never been in the business of wanton destruction. On the contrary, it prided itself on being the most professional fighting force in the world. It was admired for many things, but two of them were honor and loyalty. And it was the clash of these two otherw

Most everyone has heard of the Nuremberg Trials. Popular books have been written about them. Hollywood made movies about them. Some of us can even name a few of the convicted (Hermann Goering, Albert Speer, etc.). But fewer of us know about what might be called “Nuremberg East,” that is, the Toyko trials held after the defeat of the Japanese in World War Two. These proceedings generated few books, no movies, and therefore occupy only a minor place in Western historical memory. Thanks to Yuma Totani’s excellent book, The Tokyo War Crimes Trials. The Pursuit of Justice in the Wake of World War II (Harvard, 2008; also available in Japanese here), that may change. We should hope it does, because the Tokyo trials were important. They not only helped the Japanese come to terms with what their government and military had done during the war (truth be told, they are still coming to terms with it today), but it also set precedents that are still being applied in international law today. More than tha

Did you ever wonder how we got from a moment in which almost everything on film could be censored (the Progressive Era) to the moment in which nothing on film could be censored (today)? From the Nickelodeon to Deep Throat? The answer is provided by Laura Wittern-Keller and Raymond J. Haberski in their wonderful new book The Miracle Case: Film Censorship and the Supreme Court (University of Kansas Press, 2008). You’ve probably never heard of “The Miracle” or the case it launched in 1949. It’s a short film by Roberto Rossellini about a deranged women who, having slept with a man she believes is St. Joseph, gives birth to a child in a deserted mountain church. Fellini has a bit part (as “Joseph”). Critics generally liked it; Catholics in New York generally didn’t. The Church mounted a campaign against the film and the authorities relented: “The Miracle” was banned on the grounds that it was “sacrilegious.” In 1949, those were fine grounds. Not for

This week we interviewed Laura Wittern-Keller about her new book, Freedom of the Screen: Legal Challenges to Film Censorship 1915-1981. Both well written and extremely well researched, Freedom of the Screen takes the reader case by case through the history of film censorship in the United States. Dr. Wittern-Keller is a visiting assistant professor of history and public policy at the University at Albany (SUNY) and is also the recipient of the New York State Archives Award for Excellence in Research. Francis G. Couvares, author of Movie Censorship and American Culture, claims that “[Dr. Wittern-Keller’s] research is prodigious and fills a significant gap in the field. All who are engaged in this field will have to incorporate her findings into their stories of movie censorship.” Please become a fan of “New Books in History” on Facebook if you haven’t already.Learn more about your ad choices. Visit megaphone.fm/adchoices