New Books in Law

A friend of mine who had just graduated from law school said “Law school is great. The trouble is that when you are done you’re a lawyer.” Steven J. Harper would, after a fashion, agree (though he would probably add that law schools are not that great). Harper’s book, The Lawyer Bubble: A Profession in Crisis (Basic Books, 2013), is a stem-to-stern indictment of legal education and the legal profession; he argues that the entire system by which we train and employ (or don’t employ) attorneys is broken. Honesty, humility, and public service are out; “truthiness,” hubris, and greed are in. The very idea of what it means to be a lawyer has been corrupted. Happily, Harper has some suggestions about how we might reform the legal industry. This is a terrific and thought provoking book. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

James Whitman wants to revise our understanding of warfare during the eighteenth century, the period described by my late colleague and friend Russell Weigley as the “Age of Battles.” We commonly view warfare during this period as a remarkably restrained affair, dominated by aristocratic values, and while we recognize their horrors for the participants, we often compare battles to the duels those aristocrats fought over private matters of honor. Not true, claims Whitman, who argues instead that battles during the period 1709 (Battle of Malplaquet) and 1863/1870 (Gettysburg/Sedan) were understood by contemporaries not to be royal duels but “legal procedure[s], a lawful means of deciding international disputes through consensual collective violence.” [3] Understanding war as a form of trial is what gave warfare of the era its decisiveness (sorry Russ) and forces us, according to Whitman, to change the way we interpret, for example, Frederick the Great’s invasion of Silesia. Whitman, who is the Ford Foundation Professor of Comparative and Foreign Law at Yale Law School and an academically trained historian (PhD Chicago 1987), brings the perspective of both lawyer and historian to his work ways that teach us much about both the military history and the law of the period he considers. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Every hundred years or so, the Supreme Court decides a question with truly vast economic implications. In 2012 such a decision was handed down, in a case that had the potential to affect the economy in the near term more than any court case ever had. The substance of the case, and its lasting legal implications, are the subject of Andrew Koppelman’s The Tough Luck Constitution and the Assault on Health Care Reform (Oxford University Press, 2012). The plaintiffs in the “Obamacare” case, NFIB v. Sebelius, had political and legal goals. Politically, they failed, because Justice Roberts was not willing to undo the huge Congressional effort to reform the country’s health-insurance system. But legally, in terms of doctrine, the litigation was a smashing success, altering principles that reach back hundreds of years. Andrew Koppelman has written a superb layman’s guide to what was at stake, legally, in last year’s case — and what the plaintiffs accomplished. They persuaded five justices of the Supreme Court to call into question both of the Court’s most economically significant previous decisions, one from the early days of the Republic, and one from the New Deal. In 1819, the Court agreed unanimously that the federal government could solve national problems: “Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adopted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional.” (James Marshall) In 1935, the vote on a similar question was five to four: “Although activities may be intrastate in character when separately considered, if they have such a close and substantial relation to interstate commerce that their control is essential or appropriate to protect that commerce from burdens and obstructions, Congress cannot be denied the power to exercise that control.” (Charles Evan Hughes) But the dissent in 1935 took a very different view, one that resonates with the conservative voices of 2012: “The right to contract is fundamental, and includes the privilege of selecting those with whom one is willing to assume contractual relations.” (James McReynolds) In 2012, the Court is now split 4-5, in the other direction, on both of these topics. Prof. Koppelman shows that the “necessary & proper” clause, held to trump states’ rights by Justice Marshall, is hollowed out by Justice Roberts’ opinion. And Justice McReynolds’ “right to contract,” made infamous by the Lochner court, has returned in ghostly form, as a new individual right not to contract with insurance companies. In economic matters, the tide of constitutional law is shifting. The power of the Tough Luck constitutional doctrine was not exercised because of Justice Roberts’ forbearance in preserving the Affordable Care Act on other grounds. But with the help of Prof. Koppelman’s lucid and persuasive book, any reader can now fully grasp the legal significance of this line of thinking. Its practical implications, meanwhile, are becoming visible in the context of Medicaid, because a secondary holding in the case empowered governors to refuse new federal money for health care for the working poor. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

You may well have seen “Numb3rs,” a TV show in which mathematicians help solve crimes. It’s fiction. But, as Leila Schneps and Coralie Colmez show in their eye-opening new book Math on Trial: How Numbers Get Used and Abused in the Court Room (Basic Books, 2013) math does play a role in criminal prosecution. Alas, it’s often bad math and, as such, often leads to bad outcomes: people get off who shouldn’t and others get convicted who shouldn’t. Schneps and Colmez show how math has been misused in ten interesting (and disturbing) cases. In some instances the errors are trivial; in others rather complex. But they all add up (excuse the pun) to injustice. Listen in and find out how and why. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Daniel McCool, professor of political science at the University of Utah, is the editor of The Most Fundamental Right: Contrasting Perspectives on the Voting Rights Act (Indiana University Press, 2012). The VRA was one of the center pieces of the civil rights legislation passed in the 1960s. The Act aimed to address great inequities in access to and participation in voting, particularly among African Americans. Perhaps most controversially, the law labeled a handful of states that were deemed the most egregious violators of voting rights, and required them to gain pre-clearance from the Department of Justice on any changes in state voting procedures. Nearly fifty years later, is the case for the VRA still so pressing or are modifications or a complete overhaul called for? This timely collection provides deep theoretical and empirical justifications for the VRA, and equally well-developed arguments in opposition. One finished the collection more informed and a little unsure of what is called, both signs of a well-edited volume. The timeliness of this book cannot be overstated. On Wednesday February 26, 2013, the Supreme Court hears arguments in the Voting Rights case of Shelby County v Holder. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

In their book Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It (Basic Books, 2012), Richard Sander and Stuart Taylor, Jr. present the following big idea: race preferences in higher education harm those preferred. Their argument is interesting in that it is not premised on the idea that racial preferences are unfair. Rather, they crunch the numbers and show that when good minority students are placed among elite students at elite schools, they often fail; when they are placed among other good students at good schools, they do much better. Students, they say, need to be “matched” with students at their level, not “mismatched” (or, rather, overmatched) with students far above their level. Both Sanders and Taylor are very much in favor of Affirmative Action, though they would like to see it reformed. Listen in and see how. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Extraterritoriality was not grafted whole onto East Asian societies: it developed over time and in a relationship with local precedents, institutions, and understandings of power. Grounds of Judgment: Extraterritoriality and Imperial Power in Nineteenth-Century China and Japan (Oxford University Press, 2012) uses a trans-regional and transnational focus to explore the history of extraterritoriality and the treaty port system in nineteenth century societies. Eschewing the kinds of teleological narratives that privilege current nation states, Par Cassel locates late Qing, Tokugawa, and Meiji debates in a deep history of legal pluralism, notions of “foreign” identity, and inter-ethnic relations. Cassel uses an impressive range of press accounts, legal texts, and other sources to unfold the ways that the very different trajectories of extraterritoriality in China and Japan had very different consequences for the two countries. Cassel’s book ranges across some fascinating case studies from the histories of opium, counterfeiting, and the police. In addition to being required reading for anyone working in the history of modern China or Japan, Grounds of Judgment is also of special note to readers interested in the ways that language, dialect, and translation have shaped modern history, legal reform, and international relations. Enjoy! Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Have you ever illegally downloaded a song from the internet? How about illicitly burned copies of a CD? Made a “party tape?” Bought a bootleg album? You may have done these things, but have you purchased a bootlegged song-sheet? In Pop Song Piracy: Disobedient Music Distribution Since 1929 (University of Chicago, 2011) Barry Kernfeld fills us in on the history of disobedient music reproduction and distribution since, well, before the advent of recording technology. Along the way he discusses the above mentioned disobedient distribution techniques along with a few others: fake books, music photocopying, and pirate radio round out the book. Kernfeld suggests that the history of pop music piracy is never ending, with battles of different types of disobedience taking similar forms: the music “monopolists” (song owners) attempting to enact prohibitions on illegal production and distribution, the failed containment of said production and distribution systems and, finally, the assimilation of disobedient forms into the mainstream production and distribution industries. Barry Kernfeld is on the staff of the Special Collections Library of the Pennsylvania State University. He is the author of The Story of Fake Books: Bootlegging Songs to Musicians and What to Listen for in Jazz, and he is the editor of The New Grove Dictionary of Jazz. He is also a professional jazz saxophonist playing in Jazza-ma-phone and a clarinetist in local musical theater productions. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/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 mind of a juror? What factors actually decide close cases? Beginning in 2006, they undertook extensive empirical study to find out. Evolution, neuroscience, and even psychoanalysis play into the answer. Darwin, Skinner, and Freud all had it right: conscious thought processes are not as important as we think they are (and of course, as the annals show, this is true of judges as well as jurors). n all humans, deliberative processes are subject to primal, unconscious factors that place survival and safety ahead of everything else. This insight led Ball and Keenan to a metaphor and a method for litigators that have created a sensation in the plaintiffs’ bar: the Reptile. A creature of evolution, coiled deep in the human neurosystem, the Reptile compels jurors to heed certain kinds of arguments more than others. But the Reptile is not a base reflex: its values are also enthroned at the center of the American jury system. Ball and Keenan believe they have redeemed it from cooptation by the adherents of “tort reform.” In turn, they seek to harness it for plaintiffs: not only to win cases, but also to redress injustices of certain kinds. The Reptile is roused when there is a menace to its own genetic prospects, and such a menace can be discerned in many different kinds of cases. To hear Ball tell it, all defendants that can be seen to threaten the well-being of the community are looking more and more, in recent years, like food for the Reptile. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

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 significant in the long run. Lucidly summarizing the vast quantities of recent social-science research on so-called prosocial behavior, Cultivating Conscience shows how selfishness is overhyped as a driver of human conduct.Prof. Stout finds repeatedly that when there is a gap between actual legal structures and current legal theory, the problems are not with the law, but with the theory — problems rooted in certain academic cultures, unscientific thinking, and inattention to the empirically proven power of human conscience. The prospect of correcting these errors suggests a new direction for the field of law and economics. Conscience may turn out to be a policy tool as useful as incentivization. In fact, the power of Prof. Stout’s analytic framework, both as description and prescription, may make one-dimensional evaluation of legal incentives obsolete. Using the method proposed here, policymakers attentive to the key parameters of authority, conformity, and empathy may develop ways to “cue” conscientious behavior in a wide variety of social contexts. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law