New Books in Law

Today I talked to Chris Hamby about his book Soul Full of Coal Dust: The True Story of an Epic Battle for Justice (Little Brown, 2020). Hamby looks into why there has been a surge in black-lung disease in West Virginia and elsewhere in recent years. Poor self-policing and rapacious business practices go a long way in explaining the upsurge. Add in a tradition of fatalism caused by King Coal, and it becomes a minor miracle –but a miracle all the same—that some miners have been able to secure a measure of justice.Chris Hamby is an investigative reporter for the New York Times. He won the Pulitzer Prize for Investigative Journalism in 2014 and was a finalist for the Pulitzer Prize in International Reporting in 2017.Dan Hill, PhD, is the author of eight books and leads Sensory Logic, Inc. (https://www.sensorylogic.com). To check out his related “Dan Hill’s EQ Spotlight” blog, visit https://emotionswizard.com. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

In the past decade, Chelsea Manning and Edward Snowden became household names. They were celebrated by many as truth-tellers who blew the whistle on governmental abuses. Yet, in the eyes of the state, Manning and Snowden had made so-called “unauthorized disclosures” that jeopardized the nation’s security. Described as such, they could not be labelled “whistleblowers.”This is an example of what the editors of a new, rousing edited volume––not words typically strung together––call the “paradox of national security whistleblowing”: whistleblowing is widely acknowledged to be an essential feature of democracy, but the US government denies its existence. In Whistleblowing Nation: The History of National Security Disclosures and the Cult of Secrecy, editors Hannah Gurman––a Clinical Associate Professor at New York University’s Gallatin School––and Kaeten Mistry––a senior lecturer in American Studies at the University of East Anglia––and their star-studded cast of contributors help makes sense of the odd place of whistleblowing in American politics.Their book shows how the history of whistleblowing raises questions about democracy, citizenship, and truth itself. And, as the US war against whistleblowers has continued unabated since the Vietnam War, it’s a much-needed volume. The book should interest scholars of national security, information, and civil liberties, along with concerned citizens.And, to listeners of this podcast, Mistry and Gurman are offering a discount code—CUP30—which, if entered on the Columbia University Press website, knocks 30% off the book’s price.  Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Christoph Menke, who is professor of philosophy at the Goethe University in Frankfurt Germany and considered the most important representative of the third generation of the "Frankfurt School of Critical Theory", presents in Critique of Rights (Polity Press 2020) a critical reflection on modern normativity in the so-called "Western world". More specifically: He analyzes “subjective rights”. To have a right means to have a justified and binding claim. Now Menke exposes in his book – which is both a genealogy and an ontology of law – that these “subjective rights”, which mark the birth of bourgeois society, have ambivalent properties. They are not only expressions of individuality and freedom everybody of us enjoys today as the most important achievement that Enlightenment has transferred to us. They also create what Karl Marx called "the entitlement of the egoistic human being, set apart from his fellow human being and from the community”. Private interests become the new natural basis for politics. Contrary to what one might think “subjective rights” do not empower the citizens of a political community but disempower them. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Reinventing Bankruptcy Law: A History of the Companies’ Creditors Arrangement Act (University of Toronto Press, 2020) explodes conventional wisdom about the history of the Companies’ Creditors Arrangement Act and in its place offers the first historical account of Canada’s premier corporate restructuring statute. The book adopts a novel research approach that combines legal history, socio-legal theory, ideas from political science, and doctrinal legal analysis. Meticulously researched and multi-disciplinary, Reinventing Bankruptcy Law provides a comprehensive and concise history of CCAA law over the course of the twentieth century, framing developments within broader changes in Canadian institutions including federalism, judicial review, and statutory interpretation.Examining the influence of private parties and commercial practices on lawmaking, Virginia Torrie argues that CCAA law was shaped by the commercial needs of powerful creditors to restructure corporate borrowers, providing a compelling thesis about the dynamics of legal change in the context of corporate restructuring. Torrie exposes the errors in recent case law to devastating effect and argues that courts and the legislature have switched roles – leading to the conclusion that contemporary CCAA courts function like a modern-day Court of Chancery. This book is essential reading for the Canadian insolvency community as well as those interested in Canadian institutions, legal history, and the dynamics of change. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

The Great Recession threatened the well-being of tens of millions of Americans, dramatically weakened the working class, hollowed out the middle class, and strengthened the position of the very wealthy. Against this backdrop, the hit reality show Shark Tank premiered in 2009. Featuring ambitious entrepreneurs chasing support from celebrity investors, the show offered a version of the American Dream that still seemed possible to many, where a bright idea and a well-honed pitch could lift a bootstrap business to new heights of success. More than a decade later, Shark Tank still airs regularly on multiple networks, and its formula has sparked imitators everywhere, from elite universities to elementary school classrooms.In Entertaining Entrepreneurs: Reality TV's Shark Tank and the American Dream in Uncertain Times (UNC Press, 2020), Daniel Horowitz shows how Shark Tank's version of entrepreneurship disguises and distorts the opportunities and traps of capitalism. Digging into today's cult of the entrepreneur, Horowitz charts its rise from the rubble of economic crisis and its spread as a mainstay of American culture, and he explores its flawed view of what it really takes to succeed in business.Horowitz offers more than a look at one television phenomenon. He is the perfect guide to the portrayal of entrepreneurship in business school courses, pitch competitions, popular how-to books, and scholarly works, as well as the views of real-world venture capitalists.Nick Pozek is Assistant Director at the Parker School of Foreign & Comparative Law at Columbia University. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

High drama at the high court. Grandstanding at Senate hearings. Distrust on all sides. Nominations made by presidents and ignored or voted down by the Senate or withdrawn due to scandal, calumny or nominee intellectual nullity or professional capacity issues. The personal character of nominees assailed. Questions asked of nominees; detailed answers politely refused. Cries of illegitimacy and calls for reform.All of this and more is on offer in Ilya Shapiro’s 2020 book, Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court (Gateway, 2020)Everyone who cares about the law and the history and the future of the United States should read this book. It offers something to every sort of reader.First, it is a serious work of scholarship that examines such questions as:Is the Court, as progressives claim, really in some sort of crisis and merely a tool of a cabal involving the rather unlikely combination of corporate America and the supposedly evil religious right?Or, as many on the right argue, has the legislative branch, for expediency’s sake and in a cowardly and self-serving fashion, abrogated its constitutional responsibilities, thereby ceding far too much power to both the administrative state and the courts?Shapiro parses these questions with authority, weighing the pros and cons of the various reform measures of recent years with shrewdness, fairness and wit.Second, for general readers it is an entertaining yet substantive tour of the American political and legal landscape since the Founding Era and abounds in fascinating facts (e.g., when the first public Senate hearings on a Supreme Court nominee were held, the first time such a nominee testified in person before the Senate, the first time such hearings were televised).We learn about everything from the famous “Midnight Judges” to the fiascos of the nomination of Harriet Miers and those of Haysworth and Carswell. The book provides succinct profiles of such people that present them as distinct individuals and not as punchlines.The book is perfectly timed given that it was published just before the death of Ruth Bader Ginsburg and the Senate hearings on the confirmation of now Justice Amy Coney Barrett.This is the book to turn to in coming years for solid analysis as the left pushes for “reform” of not only the Supreme Court but the entire federal judiciary—which Shapiro also discusses in depth.Give a listen.Hope J. Leman is a grants researcher. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Is Britain a part of Europe? The British have been ambivalent on this question since the Second World War, when the Western European nations sought to prevent the return of fascism by creating strong international ties throughout the Continent. Britain reluctantly joined the Common Market, the European Community, and ultimately the European Union, but its decades of membership never quite led it to accept a European orientation. In the view of the distinguished political scientist Vernon Bogdanor, the question of Britain’s relationship to Europe is rooted in “the prime conflict of our time,” the dispute between the competing faiths of liberalism and nationalism. Britain and Europe in a Troubled World (Yale UP, 2019) provides concise, expertly guided tour provides the essential background to the struggle over Brexit.Charles Coutinho Ph. D. of the Royal Historical Society, received his doctorate from New York University. His area of specialization is 19th and 20th-century European, American diplomatic and political history. He has written for Chatham House’s International Affairs, the Institute of Historical Research's Reviews in History and the University of Rouen's online periodical Cercles. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

The debate over American immigration policy has obsessed politicians and disrupted the lives of millions of people for decades. In The Battle To Stay in America: Immigration's Hidden Front Line (University of Nevada Press, 2020), Professor Michael Kagan focuses on Las Vegas, Nevada. Las Vegas is a city where more than one in five residents was born in a foreign country. It's a city dependent on its immigrant population, but one where the community is struggling to defend itself against the federal government’s crackdown on undocumented immigrants. Professor Kagan tells this story not just as a front-line immigration lawyer, but also as a citizen, as a friend, and a parent. His intensely personal account converts headlines, complicated and punitive legal processes, and unjust bureaucratic procedures into the personal stories of the struggles to survive the severe immigration policing of the current administration. This is the immigration story that needs to be told: the disappearances of neighbors, the breaking up of families, the parents who are forever relegated to working jobs below their potential because immigration laws prevent them ever being free and equal.Kagan explains how American immigration law often gives good people no recourse. Under President Trump complex bureaucracies that administer immigration law have been re-engineered to carry out a relentless but often invisible attack against people and families who are integral to American communities. Professor Kagan tells the stories of people desperate to escape unspeakable violence in their homeland, children separated from their families and trapped in a tangle of administrative regulations, and hardworking long-time residents suddenly ripped from their productive lives when they fall unwittingly into the clutches of the immigration enforcement system. He considers how the crackdown on immigrants negatively impacts the national economy and offers a deeply considered assessment of the future of immigration policy in the United States. Kagan also captures the psychological costs exacted by fear of deportation and by increasingly overt expressions of hatred against immigrants.The Battle to Stay in America could not be more timely; with a changing Administration it's time not just to rethink America's immigration policy, but change how we think about immigration entirely.Professor Michael Kagan is the director of the UNLV Immigration Clinic, which defends children and families fighting deportation in Las Vegas, and is a Joyce Mack Professor of Law at the University of Nevada, Las Vegas. He was a plaintiff that prevented the Trump administration from adding a question about citizenship to the 2020 census. He has written for The Washington Post, Salon.com and The Daily Beast, and is a leading national scholar of immigration and refugee law. He is one of the most widely cited immigration scholars in the United States, and his work has been relied on in courts in the United States and beyond.  Jane Richards is a doctoral candidate in human rights law at the University of Hong Kong. You can find her on twitter @JaneRichardsHK where she follows the Hong Kong protests and its politics.  Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Historically, marriage was understood to be a conjugal relationship; that is to say, a bond uniting a man and a woman as husband and wife in a partnership shaped by its special aptness for conceiving and rearing children. Thus, its norms included sexual complementarity, exclusivity, fidelity, and a pledge of permanence. In 2015, the Supreme Court of the United States, in the case of Obergefell v. Hodges, held that states could no longer define marriage as a distinctively male-female bond. The Court required all fifty states to eliminate the norm of sexual complementarity so that the relationships of same-sex partners could be recognized as “marriages.” To many Americans, justice had triumphed, “bigotry” had been defeated, so-called “marriage equality” would usher in a golden era of tolerance and there would be absolutely no negative repercussions.Those people and institutions (such as religious bodies) who cling to the idea of marriage as a conjugal bond and therefore oppose this sweeping change were henceforth to be treated as not just defeated foes in a series of court cases but as hate-filled yahoos suffering from a form of moral insanity. This was despite the fact that those who believe that marriage is between one man and one woman were assured repeatedly by their opponents throughout the period up until Obergefell—and by the majority itself in that decision—that they had nothing to fear from what was, they insisted, a mere extension of marriage not its redefinition.They were told no harm would result to either individuals of conscience or to parents or children who would now be brought up in a world in which marriage is defined as basically an emotional union between adults of whatever sex, not one based on the bodily union of a man and a woman made possible by their sexual-reproductive complementarity. When defenders of the conjugal view of marriage pointed out that its legal abolition left no principled basis for norms such as permanence, monogamy, and fidelity, their arguments went for the most part unaddressed, except by the occasional candid critic, such as the gay activist writer Michelangelo Signorile, who replied that the abolition of traditional norms of morality represented a form of “liberation” from outmoded strictures. The norms were to be relegated to the history books and those who expressed allegiance to them were to find themselves increasingly in danger of losing their jobs, their businesses, and their rights to educate their children in their own beliefs.The authors of a book published in 2012, and in 2020 out in a second edition with a powerful new afterword, saw all of this coming. That book was What Is Marriage? Man and Woman: A Defense (Encounter Books,  by Sherif Girgis, Ryan T. Anderson & Robert P. George. We will talk to Mr. Anderson about the new edition of the book and what he and his co-authors got right about what was likely to happen in terms of religious freedom generally and in areas such as foster care and adoption assistance in a same-sex marriage world and what even he and his co-authors did not foresee. All of this affects all of us.Give a listen.Hope J. Leman is a grants researcher. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

The Antebellum Origins of the Modern Constitution: Slavery and the Spirit of the American Founding (Cambridge University Press, 2020) argues that conflicts over slavery and abolition in the early American Republic generated a mode of constitutional interpretation that remains powerful today: the belief that the historical spirit of founding holds authority over the current moment. Simon J. Gilhooley traces how debates around the existence of slavery in the District of Columbia gave rise to the articulation of this constitutional interpretation, which constrained the radical potential of the constitutional text. To reconstruct the origins of this interpretation, Gilhooley draws on rich sources that include historical newspapers, pamphlets, and congressional debates. Examining free black activism in the North, abolitionism in the 1830s, and the evolution of pro-slavery thought, this book shows how in navigating the existence of slavery in the District and the fundamental constitutional issue of the enslaved's personhood, antebellum opponents of abolition came to promote an enduring but constraining constitutional imaginary. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law