New Books in Law

Join us for an in-depth exploration of Professor Cass Sunstein's latest work, Campus Free Speech (Harvard University Press, September 2024). Together, we'll examine the book’s intriguing take on free speech in academic spaces and the broader implications for constitutional interpretation. Professor Sunstein also delves into the exercise of administrative power, with timely discussions on COVID-era authority and the Supreme Court's decision in Chevron v. Natural Resources Defense Council. Gain unique insights from Sunstein on how the Constitution remains a guiding force for the American public in navigating modern challenges.Cass R. Sunstein is the Robert Walmsley University Professor at Harvard. He is the founder and director of the Program on Behavioral Economics and Public Policy at Harvard Law School. In 2018, he received the Holberg Prize from the government of Norway, sometimes described as the equivalent of the Nobel Prize for law and the humanities. In 2020, the World Health Organization appointed him as Chair of its technical advisory group on Behavioural Insights and Sciences for Health. From 2009 to 2012, he was Administrator of the White House Office of Information and Regulatory Affairs, and after that, he served on the President’s Review Board on Intelligence and Communications Technologies and on the Pentagon’s Defense Innovation Board. Mr. Sunstein has testified before congressional committees on many subjects, and he has advised officials at the United Nations, the European Commission, the World Bank, and many nations on issues of law and public policy. He serves as an adviser to the Behavioural Insights Team in the United Kingdom.Professor Sunstein is author of hundreds of articles and dozens of books, including Nudge: Improving Decisions about Health, Wealth, and Happiness (with Richard H. Thaler, 2008), Simpler: The Future of Government (2013), The Ethics of Influence (2015), #Republic (2017), Impeachment: A Citizen’s Guide (2017), The Cost-Benefit Revolution (2018), On Freedom (2019), Conformity (2019), How Change Happens (2019), and Too Much Information (2020). He is now working on a variety of projects involving the regulatory state, “sludge” (defined to include paperwork and similar burdens), fake news, and freedom of speech.Madison’s Notes is the podcast of Princeton University’s James Madison Program in American Ideals and InstitutionsContributions to and/or sponsorship of any speaker does not constitute departmental or institutional endorsement of the specific program, speakers or views presented. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

One of the great divides in American judicial scholarship is between legal scholars who take the justices at their word and assume that those words define the law and political scientists who dismiss all judicial arguments as smokescreens for partisan bias or wider political forces. Today’s guest has written a book that bridges that divide. In Rot and Revival: The History of Constitutional Law in American Political Development (U California Press, 2024), Dr. Anthony Michael Kreis uses methods from history, law, and political science to theorize and document how politics make American constitutional law and how the courts affect the path of partisan politics. Understanding American constitutional law means looking at the relationship among dominant political coalitions, social movements, and the evolution of constitutional law as prescribed by judges. For Kreis, constitutional doctrine does not exist in a philosophical vacuum – it is a “distillation of partisan politics.”Rejecting the idea that the Constitution's significance and interpretation can be divorced from contemporary political realities, Kreis uses tools from law, history, and American political development to explain how American constitutional law reflects the ideological commitments of dominant political coalitions, the consequences of major public policy choices, and the influences of intervening social movements. For Kreis, constitutional law is “best understood through the diachronic lens of American Political Development (APD) and the concept of political time. Kreis concludes that the courts have never been—and cannot be—institutions lying outside the currents of national politics.Dr. Anthony Michael Kreis is assistant professor at Georgia State University College of Law where he teaches constitutional law and works at the intersection of law and American Political Development. He earned his undergraduate and law degrees at the University of North Carolina at Chapel Hill and Washington & Lee University, respectively, and his PhD from the School of Public and International Affairs at the University of Georgia.Mentioned: President Lyndon B. Johnson’s March 15, 1965 speech before Congress on voting rights Keith E. Whittington’s Political Foundations of Judicial Supremacy and other works Gerald Rosenberg’s The Hollow Hope: Can Courts Bring About Social Change? Correction: Justices Sotomayor and Kagan were nominated by President Obama and Justice Jackson was nominated by President Biden. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

The police officer who brutalized Abner Louima. A purveyor of child pornography. These are some of the defendants to have come before U.S. District Court Judge Frederic Block to ask for reductions in their prison sentences. All of them have been found guilty and have already served decades in prison, but under the 2018 First Step Act they are entitled to petition for reconsideration and release. In a rare glimpse behind the bench, Judge Block recounts the cases of six incarcerated people who have done heinous things but have nevertheless petitioned him for their release. He then explains the criteria the First Step Act has spelled out for his consideration. And, in a novel twist, he asks the reader, “What would you do?” In A Second Chance: A Federal Judge Decides Who Deserves It (The New Press, 2024), Judge Block puts us out of our suspense in a third section of the book where he tells us what he did do in each case and why, as he weighs each compassionate release request, evaluating issues ranging from “the trial tax,” to sentencing disparities, to judicial incompetence. Finally, Judge Block makes the case that the First Step Act should be extended to state court judges, since state prisons house about 90 percent of those incarcerated. In a book that could be the basis for a new season of Law & Order, Judge Block challenges our ideas about punishment and justice. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Completed shortly before Hamas carried out its barbaric October massacre, Cary Nelson's Hate Speech and Academic Freedom: The Antisemitic Assault on Basic Principles (Academic Studies Press, 2024) takes up issues that have consequently gained new urgency in the academy worldwide.It is the first book to ask what impact antisemitism has had on the fundamental principles the academy relies on for its identity—academic freedom, free speech rights, standards for hiring or firing faculty members and administrators, and the ethics of academic conduct and debate.Antisemitic hatred is spreading at a fever pitch. What steps can counter it? What damage to students is done when departments embrace anti-Zionism? Should faculty members face consequences for promoting antisemitism on social media? Should universities make a new push to adopt the IHRA Definition of Antisemitism? Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

An interview with Dr. Alexandre Caeiro in which we discuss Islamic law and institutions in Qatar, secularisation and the Ottomans. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

The legal theory of constitutional originalism has attracted increasing attention in recent years as the US Supreme Court has tilted with the weight of justices who self-describe as originalists. In Against Constitutional Originalism: A Historical Critique (Yale UP, 2024), Jonathan Gienapp examines the theory and describes how it falls short of achieving the interpretive authority that it claims. Gienapp asserts that we need to reconstruct 18th century legal arguments as they were originally understood before judging them, while originalists reject historical understanding in favor of a more pliable textualist approach that allows them to impose their modern legal perspectives onto the past. This "have your cake and eat it too" methodology allows originalists to claim the authority of the Founders while simultaneously discounting anything that those same Founders may have said, done, or understood that doesn't appear among the approximately 7500 words of the Constitution itself.  This book speaks directly to originalists with a challenge to make a fundamental choice between recognizing how our modern constitutional practices distort the original constitution and embrace them for the modern fiction that they are, or recover the original Constitution that the Founders actually knew. Author recommended reading:  The Interbellum Consitution: Union, Commerce, and Slavery in the Age of Federalisms (Yale UP, 2024) by Alison L. LaCroixRelated resources:  The Structure of Scientific Revolutions by Thomas S. Kuhn Edwin Meese speech to the American Bar Association in 1985 Constitutional Faith by Sanford Levinson New Books Network interview with Jonathan Gienapp, when Derek Litvak spoke with him in 2019 about The Second Creation: Fixing the American Constitution in the Founding Era (Harvard UP 2018). Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Scholars often narrate the legal cases confirming LGBTQ+ rights as a huge success story. While it took 100 years to confirm the rights of Black Americans, it took far less time for courts to recognize marriage and adoption rights or workplace discrimination protections for queer people.The legal and political success of LGBTQ+ advocates often depended upon presenting sexual and gender identities as innate – or “immutable” to fit legal categories. Conservatives who oppose LGBTQ+ equality often argue that sexual and gender identity is something that can be taught. They use the offensive language of “grooming” and contagious “gender ideology” that corrupts susceptible children.In Born This Way: Science, Citizenship, and Inequality in the American LGBTQ+ Movement (U Chicago Press, 2023), Dr. Joanna Wuest unpacks how a biologically based understanding of gender and sexuality– based on arguments from the “natural sciences and mental health professions” – became central to American LGBTQ+ advocacy. Her book is both a “celebratory and cautionary” story about the costs of relying on science to win impressive victories for queer rights. The book interrogates the “LGBTQ+ rights movement, the scientific study of human difference, and the biopolitical character of citizenship that formed at the nexus of the two.” As LGBTQ+ advocates brought “science to bear on civil rights struggles,” they transformed American politics and the epistemology of identity politics more broadly.” Dr. Joanna Wuest is an incoming Assistant Professor of Women's, Gender, and Sexuality Studies at Stony Brook University and a sociolegal scholar specializing in sexual and gender minority rights, health, and political economy. Her book, Born This Way: Science, Citizenship, and Inequality in the American LGBTQ+ Movement, received an Honorable Mention for the Society for Social Studies of Science's 2024 Rachel Carson Prize and was featured on a recent episode of Radiolab.During the podcast, we mentioned:Joanna’s article with Dr. Briana S. Last, “Agents of scientific uncertainty: Conflicts over evidence and expertise in gender-affirming care bans for minors” in Social Science & Medicine. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

In this riveting discussion, Riki Ott, an Alaskan fisher who played a key role in securing over $5 billion in damages from Exxon, and fellow fisherman Linden O’Toole delve into the ongoing legal battle post-Exxon Valdez spill. They explore the intersection of corporate funding and environmental justice, revealing how Exxon’s resources tilt legal narratives and jury decisions. Personal stories of struggle turn to triumph as they recount emotional courtroom moments, bridging theory and real-life consequences of corporate negligence. Their insights shed light on the complex legacy of this environmental disaster.

Since the mid-nineteenth century, public officials, reformers, journalists, and other elites have referred to “the labour question.” The labour question was rooted in the system of wage labour that spread throughout much of Europe and its colonies and produced contending classes as industrialization unfolded. Answers to the Labour Question explores how the liberal state responded to workers’ demands that employers recognize trade unions as their legitimate representatives in their struggle for compensation and control over the workplace.In Answers to the Labour Question: Industrial Relations and the State in the Anglophone World, 1880–1945 (University of Toronto Press, 2024), Dr. Gary Mucciaroni examines five Anglophone nations – Australia, Canada, Great Britain, New Zealand, and the United States – whose differences are often overlooked in the literature on political economy, which lumps them together as liberal, “market-led” economies. Despite their many shared characteristics and common historical origins, these nations’ responses to the labour question diverged dramatically. Dr. Mucciaroni identifies the factors that explain why these nations developed such different industrial relations regimes and how the paths each nation took to the adoption of its regime reflected a different logic of institutional change. Drawing on newspaper accounts, parliamentary debates, and personal memoirs, among other sources, Answers to the Labour Question aims to understand the variety of state responses to industrial unrest and institutional change beyond the domain of industrial relations.This interview was conducted by Dr. Miranda Melcher whose new book focuses on post-conflict military integration, understanding treaty negotiation and implementation in civil war contexts, with qualitative analysis of the Angolan and Mozambican civil wars. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

In 2003, in a ruling that bordered on poetic, Supreme Court Justice Anthony Kennedy wrote in Lawrence v. Texas that sexual behavior between consenting adults was protected under the constitutional right to privacy. This was a landmark case in the course of LGBTQ+ rights in the Untied States, laying the groundwork for cases like 2015's Obergefell v. Hodges. Yet, this case did not emerge out of nowhere. In Before Lawrence v. Texas: The Making of a Queer Social Movement (U Texas Press, 2023), University of North Texas history professor Wesley Phelps argues that behind each successful court case stands a litany of failures, challenges, and individual human stories, each of which laid the groundwork for these landmark successes. By tracking the long history of queer activism in Texas during the 1960s, 70s, and 80s, Phelps shows how the long road toward greater LGBTQ+ civil rights was paved with hard work by hundreds of activists, lawyers, and allies. No movement exists in a vacuum, and Before Lawrence v. Texas provides a roadmap showing how historical change really occurs.  Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law