New Books in Law

Seth Barrett Tillman, an instructor in the Department of Law at Maynooth University in Ireland, is one of the few scholars to have researched and written about the history of the Foreign Emoluments Clause of the U.S. Constitution. Prof. Tillman has also submitted amicus briefs (friend of the court briefs) in three recent federal cases regarding whether President Trump has violated the clause. In this podcast interview, Prof. Tillman discusses the historical origins of the clause, its original understanding during the early republic, and its possible application to the Trump presidency. In short, Prof. Tillman contends that the clause does not apply to elective offices; rather, it only applies to appointed offices in the federal government. Although conceding that there are good reasons to want such a clause to apply to the President, he contends that it is simply not a proper understanding of the clause to apply it to President Trump. Here’s some reading: Prof. Tillman and Josh Blackman’s New York Times op-ed on Trump and the emoluments clause. Prof. Tillman’s article in the Harvard Journal of Law and Public Policy on Trump and the emoluments clause Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

The Sovereignty Wars: Reconciling America with the World (Brookings Institution Press, 2017) is an important and in depth study of American interaction with the intricate concept of Sovereignty, from the Founding Fathers to Donald Trump. Stewart Patrick delineates for the reader the fraught concept of sovereignty, showing how it has changed in both meaning and importance for Americans since the foundation of the United States. Going back to John Locke and going forward to John Bolton, Patrick demonstrates that sovereignty is not a static or monolithic concept or idea, but one which is both flexible and enduring. Stewart Patrick is the James H. Binger senior fellow in global governance and director of the International Institutions and Global Governance Program at the Council on Foreign Relations. Charles Coutinho holds a doctorate in history from New York University. Where he studied with Tony Judt, Stewart Stehlin and McGeorge Bundy. His Ph. D. dissertation was on Anglo-American relations in the run-up to the Suez Crisis of 1956. His area of specialization is 19th and 20th-century European, American diplomatic and political history. It you have a recent title to suggest for a podcast, please send an e-mail to Charlescoutinho@aol.com.     Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Sovereignty is a key concept in Native American and Indigenous Studies, but its also a term that is understood in multiple ways. Working across the boundaries of legal and literary theory, David J. Carlson‘s Imagining Sovereignty: Self-Determination in American Indian Law and Literature (University of Oklahoma Press, 2016) examines the works, both creative and theoretical, of many Native intellectuals who have considered sovereignty in the past century. Sovereignty emerges in this study as a necessarily imprecise concept that mediates between indigenous communities and also with the settler colonial government of the United States. Carlson discusses thinkers who have previously been seen as opposed, showing ways that their disparate projects can in fact be seen via the idea of self-determination as in many ways complementary. James Mackay is Assistant Professor of British and American Studies at European University Cyprus, and is one of the founding editors of the open access Indigenous Studies journal Transmotion. He can be reached at j.mackay@euc.ac.cy. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

The Transparency Fix: Secrets, Leaks, and Uncontrollable Government Information (Stanford University Press, 2017) dispels the myth that transparency of information will result in a perfect government. Dr. Mark Fenster discusses the motivations of transparency movements and justifications for state secrecy. Through the lens of communications theory, Fenster raises questions about the utility of disclosed information and how it may or may not be deemed valuable by the public. Fenster also examines the state’s ability to keep secrets and what, if any, outcomes result from information disclosure. In conclusion, Fenster asserts transparency, on its own, will not fix the state, but focused efforts on good governance just might. Beth Windisch is a national security practitioner. You can tweet her @bethwindisch. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Sandy Goldberg is Professor of Philosophy at Northwestern University. He specializes in epistemology and philosophy of language, with particular interest in the social aspects of knowledge and speech; these foci converge in his ongoing work on testimony. Sandy has written several books including Relying on Others (Oxford 2010) and, more recently, Assertion (Oxford 2015); his forthcoming book is titled To the Best of Our Knowledge, and is forthcoming with Oxford University Press.The "Why We Argue" podcast is produced by the Humanities Institute at the University of Connecticut as part of the Humility and Conviction in Public Life project. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

In 1976, the US Supreme Court ruled in Gregg v. Georgia that the death penalty was constitutional if it complied with certain provisions designed to ensure that it was reserved for the ‘worst of the worst.’ The 1976 decision ushered in the ‘modern’ period of the US death penalty, resulting in the execution of over 1,400 inmates, with over 8,000 individuals currently sentenced to die. Each chapter of Frank Baumgartner‘s, Marty Davidson’s, Kaneesha Johnson’s, Arvind Krishnamurthy’s, and Colin Wilson’s Deadly Justice : A Statistical Portrait of the Death Penalty (Oxford University Press, 2017) addresses a specific factual question and provides statistical evidence about how the modern death penalty has functioned. Baumgartner is Professor of Political Science, University of North Carolina. Davidson, Johnson, Krishnamurthy, and Wilson were all students at North Carolina during the research for the book. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

If any place (outside contemporary North Korea) can be called “Totalitarian,” it would be Stalinist Russia. Under the “Greatest Genius of All Time,” Soviet “citizens” enjoyed no free speech, no free press, and no free assembly. The one-party Bolshevik dictatorship deprived them of their voices, their property, their livelihoods, their liberty, and often their lives all in the name of building a kind of society—Communism—that existed only in the minds of Party theoreticians. To me at least, it seems odd that such a place would even have something called a “constitution.” What use is a constitution when there is no real law? But the USSR had several constitutions. In her excellent book Stalin’s Constitution: Soviet Participatory Politics and the Discussion of the 1936 Draft Constitution (Routledge, 2017), Samantha Lomb describes how one of them was received in the provinces and discussed by Party officials and the populous. She finds some remarkable things, the most important of which to my mind is that the people of Kirov (or at least the important ones who were consulted) were—much like the tyrannical state that ruled over them—not much interested in things like “equal rights” or, more generally, the “rule of law.” Under the Bolsheviks they had evolved a way of doing things that involved neither of these things and they were fine with that. Listen in. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

In From Oligarchy to Republicanism: The Great Task of Reconstruction (University of Missouri Press, 2017) , Forrest Nabors sets out to show that congressional Republicans regarded the work of Reconstruction in the same way they regarded the work of the Founders: as regime change, from monarchy in the one case and from oligarchy in the other, to republicanism. Nabors examines the writings and speeches of Republicans in the Thirty-Eighth, Thirty-Ninth, and Fortieth Congress (1863-1869), recovering their political analysis of the antebellum South. While Reconstruction scholars have typically emphasized black citizenship as the central concern of congressional Republicans, Nabors demonstrates that they identified Southern oligarchy (tightly linked to slavery) as the problem of the age. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

In his new book, The Malmedy Massacre: The War Crimes Trial Controversy (Harvard University Press, 2017), Steven Remy, professor of history at City University of New York, examines the Malmedy massacre which took place on December 17, 1944 and the trial that followed after the conclusion of World War II. Remy effectively demonstrates how in the decade following the trial how a network of German and American sympathizers succeeded in discrediting the trial. Remy directly looks at the accusations of torture, which the defendants and their allies alleged led to false confessions. Although these allegations were false, Remy demonstrates how amnesty advocates used them successfully to not only discredit the trial, but distorted our understanding of one of the most brutal massacres in American military history. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Colleen Murphy’s new book, The Conceptual Foundations of Transitional Justice (Cambridge University Press, 2017), argues that attaining some degree of justice is possible in nations transitioning to democratic states. There are many historical instances of nations whose citizens take action to change the nature of their regime from one of authoritarianism to democracy. Whether from France in the 1790s to Eastern Europe and Russia in the 1990s, the challenges facing new leaders to look to the future while accounting for the past can be daunting. Murphy argues that transitions need some degree of justice in order to be successful and she seeks to identify the key elements of just transitions. Murphy notes that a just result can take different forms, because of differences in culture, traditions, and the nature of the old regime. She further notes that transitional justice is not as clear and definitive as more familiar forms of justice, such as the retributive justice of the criminal law or the corrective justice of tort law. Instead, transitional justice involves degrees of accountability for wrongdoers and degrees of compensation and recognition for victims. The tools of transitional justice can include amnesties, criminal trials, memorials, truth and reconciliation commissions or reparations. Accordingly, not everyone in the society will be satisfied with the punishment, if any, meted out to perpetrators and the recognition given to victims may seem incomplete or insufficient. Nevertheless, in order to achieve a society-wide transition to a morally improved regime, traditional notions of justice may remain unsatisfied or incomplete. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law