July 18, 2011


Jack M. Balkin, Constitutional Redemption: Political Faith in An Unjust world (Cambridge, Massachusetts, & London, England: Harvard U. Press, 2011) ("This is a book about faith, narrative, and constitutional change. . . ." "I am interested in the question of what attitude members of the public must have toward the constitutional project in order for it to be legitimate, and the dangers inherent in that very attitude. I am interested in the stories that Americans tell each other about what their Constitution means and how they use these stories to justify their actions, both to themselves and to others. I am interested in how American continue their constitutional project with an ancient Constitution that is only sometimes just, often very unjust, and always in the process of changing." "In focusing on these issues, I am not calling for abandoning the familiar questions of American constitutional theory; rather, I hope to bring new ones to attention. I do not claim that there is nothing else to constitutional theory than what I offer here. I only claim that there is this too." Id. at 1. "The dangers of apology and idolatry lead [Sanford] Levinson--and should lead us as well--to a hermeneutics of suspicion in law, directed against the products of law, the claims of law, and the professional judgments of well-trained lawyers, schooled in the legal common sense of a particular historical period. The well-trained lawyer, devoted to the forms and practices of law, and professing a proud faith in both the Constitution and the rule of law, might nevertheless use the forms and devices, the rhetorics and mechanisms of law to perpetrate injustices great and small. The fact that lawyers are well trained does not prevent these injustices . Instead, the better trained the lawyers are,the more injustices occur through the forms and devices, rhetorics and mechanisms of law. These injustices are defended in the name of the Constitution and the rule of law, and those who dare speak against them are often accused of settling themselves against the Constitution and the rule of law, and, by definition, against civilization itself. Here again slavery is an apt example. The institution of slavery was supported and defended by the ablest legal minds of their time, who justified it as a sovereign right of states and as a sacred form of private property, and who drew upon their considerable talents to protect it, maintain it, and even expand it. If well-trained lawyers could have done this on behalf of so great an evil as slavery, what does this say about what equally well-trained lawyers might be doing today?" Id. at 85.).

David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (Chicago & London: U. of Chicago Press, 2011) ("Scores of books and articles state or imply that there is no significant difference between the 'Lochner-era' commerce clause, due process cases, non-delegation cases, an so on. Rather, they purportedly were all different manifestations of the Court's reactionary 'laissez-faire' jurisprudence. Conflating these doctrines allowed legal scholars--and for that matter, Supreme Court justices--to elide debate over the meaning of the relevant constitutional provisions, and to reject out of hand the notion that the Old Court may have interpreted some of them correctly as a matter of text and history." "In short, supporters of the post-New Deal constitutional order--lawyers, historians, and political scientists--promoted the traditional Lochner story to shore up that order against residual or future opposition. Modern conservatives have adopted major elements of this story as well, so that they can use Lochner to attack modern due process decisions they abhor, like Roe v. Wade. When scholars distort history to serve an agreeable governing ideology or to rally opposition to existing precedents that they dislike, their work richly deserves correction." Id. at 128. Among the grave misfortunes of the current trend in law school education to make law students 'practice ready' is denigrate certain areas of legal scholarship and teaching, for example, legal history. No bar examine asks examinees their take on Lochner. It will be the rare hiring partner who asks prospective new associates their position on Lochner, its merits, it legacy, etc. Yet, as Bernstein demonstrates, Lochner has played an important role in shaping the arguments of both the progressive let and the conservative right. Perhaps, understanding legal history, both constitutional and nonconstitutional, matters to a more robust and meaningful notion of being practice ready. Perhaps the only hope is that law students will read broadly outside their limited, narrowly-focused, and practice-oriented law school courses.).

Robert W. Gordon & Morton J. Horwitz, eds., Law, Society, and History: Themes in the Legal Sociology and Legal History of Lawrence M. Friedman (Cambridge Studies in Law and Society) (Cambridge: Cambridge U. Press, 2011) (From the editors' Introduction: "This book is not a Festschrift in the usual sense of a collection of miscellaneous essays by colleagues and disciplines assembled to honor a great scholar. Rather it is a sustained examination and application of the scholar's ideas ad methods. Some of the writers directly assess and comment on Friedman's vast body of work. Some examine his conclusions to see how well they have stood up over time. Others supply concepts and insights derived from Friedman's work to the study of similar problems in different periods and societies. Still other s use Friedman's concepts and insights as a foil or contrast to their own approaches to studying law and society from theoretical perspectives very different from his." Id. at 1. After reading this collection, I have no choice but to commit to rereading what I have read of Friedman's work, and reading what I have not yet read.).

Kenneth N. Klee, Bankruptcy and the Supreme Court (Newark & San Francisco: American College of Bankruptcy/LexisNexis, 2008).

Douglas Laycock, Religious Liberty, Volume One: Overviews and History (Emory University Studies in Law and Religion) (Grand Rapids, Michigan, & Cambridge, United Kingdom: Eerdmans, 2010) (Douglas Laycock is a legal scholar whose work and humanity I greatly admire. Those who read just this one volume of his work, agreeing or disagreeing with him, will understand why he is worthy of deep respect. From "Reflections on Two Themes: Teaching Religious Liberty and Evolutionary Changes in Casebooks" (originally published 101 Harvard Law Review 1642 (1988): "Many teachers believe that law students will not take seriously any reading other than a case or perhaps a doctrinal summary of a case. Yet that is surely the faculty's fault. If we want students to take history seriously, we must take it seriously ourselves. If we say that history is relevant to an understanding of contemporary disputes, we must visibly bring it to bear on those disputes." "Most important, we must include it in the final examination. We can assign a whole library of interdisciplinary reading, but if the examination consists of hypothetical cases requiring issue spotting and doctrinal analysis, students have every reason to study only doctrine. The grading and examination system creates an incentive structure, and we can hardly complain if students respond to it. Students are right to believe that what is important is what is the exam. But the faculty can change what is on the exam." "Forced to choose within the extraordinary constrains imposed by the case method, most of us decide that doctrine and traditional legal analysis are the most important things to teach. We may talk a different game, but our assignment sheets and our exams reveal our choices. Within the constraints of the case methods, doctrine is the right choice. I would not want to be represented by a lawyer who knows no law, however broadly educated in the liberal arts or public policy analysis. If we teach only a little bit, we should teach the core skills and information of the profession. Yet we need not be satisfied with teaching only a little bit. If we break out of the constraints imposed by the case method, our students can surely read more and learn more." Id. at 470-480.).

Douglas Laycock, Religious Liberty, Volume Two: The Free Exercise Clause (Grand Rapids, Michigan, & Cambridge, United Kingdom: Eerdmans, 2011) (From "Preface to Volume 2": "[T]his is the first of two volumes devoted to [Laycock's] work on protecting the free exercise of religion. This volume is devoted to constitutional protection --to the protections that are found, or should be found, in the Free Exercise Clause of the First Amendment and in similar provisions in state constitutions. Volume 3, Religious Liberty Legislation [forthcoming], will be devoted to statutory protections for religious liberty, enacted by Congress or state legislatures in response to the narrowing or withdrawal of constitutional protection by judicial interpretation." Id. at xii.).

Deborah E., Lipstadt, The Eichmann Trial (Jewish Encounters) (New York: Nextbook / Schocken, 2011) ("The judgment began with a reaffirmation of what had been evident throughout the trial. The judges' perception of the trial was diametrically opposed to Hausner's and, by extension, Ben-Gurion's. A trial, they unequivocally declared, could not be a 'forum for clarification of questions of great import.' The questions of great import that they believed did not belong were precisely the matters that Hausner considered fundamental to his case: anti-Semitism, the role of other nations in facilitating the Final Solution, and the Allies' failure to assist the Jews. The court's responsibility, they insisted, was to focus on the defendant's actions and to 'entirely eliminate' anything foreign to this process. In what may be the most 'controversial' aspect of their ruling, they addressed the testimony of Holocaust survivors 'who poured out their hearts as they stood in the witness box.' Their testimony would be valuable for historians and researchers, but the judges regarded it 'as a by-product of the trial.' . . . " Id. at 140-141.).

Karl N. Llewellyn, The Bramble Bush: On Our Law and Its Study (1930)(New York: Oceana, 1960) (I think Karl Llewellyn would be appalled by the current state, and downward drift, of legal education. It is a drift toward the anti-intellectual, a drift which only the elite law schools --if even they-- have any real chance of avoiding. "But I should say here, as I shall say again, that whatever the nature of your prospective practice, it would be a misfortune for you, and for us, and foe the public whom you, supposedly, will later service, if you were to confine your training in this school to what I may describe as bread-and-butter course, to those which seem to you of most immediate practice importance, to those which you conceive adapted to butter your bread, or to give you bread to butter." Id. at 6-7. "I pause in exposition to exhort. What I am trying to write in fire on the wall is that the task before you is immense, is overwhelming, and that the official courses of the school are not enough to compass it. 'TEKEL: though are weighed in the balance, and found wanting.' To do the work is not: to do the classes. Rather must you immerse yourself for all your hours in the law. Eat law, talk law, think law, drink law, babble of law and judgments in your sleep. Pickle yourselves in law--it is your only hope. And to do this you need more than your classes and your case-books, and yourselves, T=You need your fellows. . . . In group work lies the deepening of thought In group work lies ideas, cross-lights; dispute, and practice in dispute; cooperative thinking and practice in consultation; spur for the weary, pleasure for the strong. A threefold cord is not quickly broken: in group-work lies salvation." Id. at 110. "It all depends on what you want of law, what law can offer you. That turns, in turn, on what you want of life." " There is a brand of lawyer for whom law is the making of a livelihood, a competence, a fortune. Law offers means to live, to get ahead. It is so viewed, Such men give their whole selves to it, in this aspect. Coin is their reward. Coin makes it possible to live. Coin is success, coin is prestige, and coin is power. Such lawyers, I take it, reflect rather adequately the standards of our civilization. They have perceived the mainspring of a money economy. Coin is, in this society, the measure of a man." "I have no quarrel to fight out with this way of life. No quarrel to fight out with it, even as a way of life. It is as satisfactory, doubtless, as any; it may be more so. Single-heartedness simplifies choices; choices are most uncomfortable business, And if the coin-chaser does achieve his goal at forty-five, he has achieved a happiness that few can rival. Happiness after all is a balance between desires and fulfillment. He whose desires have shrunk to meat and drink and income tax evasion, to bowing butlers and the bejewelling of his wife--he has his happiness if he can gain the coin. I would not say that 'more law' had brought him vision. But neither do I see that he desires vision, or could use it." Id. at 141-142.).

Karl N. Llewellyn, The Case Law System in America, translated from the German by Michael Ansaldi, edited and with an Introduction by Paul Gerwitz (Chicago & London: U. Chicago Press, 1989).

Karl N. Llewellyn, The Theory of Rules, edited and with an Introduction by Frederick Schauer (Chicago & London: U. of Chicago Press, 2011) (From the book jacket: "This book frames the development of Llewellyn's thinking and describes the difference between what rules literally prescribe and what is actually done, with the gap explained by a complex array of practices, conventions, professional skills, and idiosyncrasies, most of which are devoted to achieving a law's larger purpose rather than merely following the letter of a particular rule. Edited, annotated, and with an extensive analytic introduction by leading contemporary legal scholar Frederick Schauer, this rediscovered work contains materials not found elsewhere in Llewellyen's writings and will provide a valuable contribution to the existing literature on Legal Realism.").

Gerald N. Magliocca, The Tragedy of William Jennings Bryan: Constitutional law and the Politics of Backlash (New Haven & London: Yale U. Press, 2011) ("[T]here was a powerful backlash against the protest movements associated with the Populists and their goals of wealth redistribution, nationalization of industry, and racial cooperation in the South. William Jennings Bryan's unique constitutional contribution was not in what he did; it was what the fear of him and his followers caused others to do. . . . This fear spurred the political and legal establishment to fight back by increasing federal constitutional protect for property and contract rights, establishing Jim Crow to prevent an alliance between poor whites and African Americans in the South, and curbing civil liberties to ensure that Populist and labor activists could not rally support. There are many fine studies on the backlash phenomenon, but nobody has done an analysis of what may be the most significant constitutional backlash of all. This book takes up that challenge." Id. at 5. "The irony of the 1890s is that one of the most impressive grass-roots movements in American history created one of the most repressive regimes in American history. Voting rights were striped away from millions of people. Segregation was no the law of the land. Labor leader were threatened with prison if they went on strike. The only exception to this trend came during the Progressive Era, especially in the second decade of the twentieth century. What looking at that period reveals, however, is that William Jennings Bryan continued to cast a long constitutional shadow." Id. at 132.).

Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (Cambridge, Massachusetts, & London England, 2011) ("This book is a history of reasoning from race as a legal strategy pursued by feminists during the 1960s and 1970s. To understand the history of feminist legal advocacy is to recognize reasoning from race as a fluid, historically variable practice rather than as a fixed or foregone conclusion. The social meaning and legal content of reasoning from race varied widely over time. Political and economic context mattered tremendously, as did the audience to whom feminists presented their demand." Id. at 4. In the early 1970s, John Lennon penned the lyrics to the song, "Woman is the Nigger of the World." Reasoning from Race is an interesting and worthwhile read. Were I teaching my Feminist Legal Theory course, I would assign the text as supplemental or suggested reading. For law students, reading Reasoning from Race is no substitute for reading and thinking through the cited cases. This connects to what I view as a flaw in a certain type of writing about legal history: an over-emphasis on the case law, and on what lawyers and judges do. This is understandable given the case-law focus of most legal education, in which analogical reasoning is 98 percent of the first-year curriculum and 90 percent of the third- and fourth-year curriculum. The race to gender analogy is not surprising. If the bulk of civil rights litigation focused on race, would not one expect those concerned with gender to tap into that case law and those analogies? It was a foregone conclusion that the reasoning would be from race, it was the only analogy readily available. It is a bit misleading to suggest that feminists really and truly agonized over use of the race analogy except, of course, to note that it might not play well with racists. One of the many discussions left out of the book is how the civil rights movement has left so many African American behind. Who are the class of women being left behind by feminism? Who has reasoning from race failed? This is part of the larger question of who wins and who loses from the use of an analogy. Still, like I said, Reasoning from Race is an interesting and worthwhile read.).

Lior Jacob Strahilevitz, Information and Exclusion (New Haven & London: Yale U. Press, 2011) (basically, information as a significant transaction cost in the decision as to how to exclude; privacy theory and law impact what information is available and its cost, and therefore, impact choice of exclusion strategies.).

Kenji Yoshino, A Thousand Time More Fair: What Shakespeare's Plays Teach Us About Justice (New York: Ecco, 2011) (See Garry Wills, "Shakespeare Subpoenaed," NYT Book Review, Sunday, 4/17/2011. "The class on which this book is based is probably great fun, and the students may sharpen some lawyerly skills by debating things like the bloody glove at Simpson's trial. But if they want more understanding of Shakespeare, they should sneak off to the theater, where he belongs, and not to a law class. They should go to Belmont." Id.).