New Books in Law

Is comedian and cultural critic Bill Cosby right–that black youth suffer from a cultural pathology that leads them to commit more crimes than their white counterparts? Is the remedy to the high rate of offending by African American men the “shape up or get shipped out” perspective? Is there more to African American offending than poor parenting or lousy schools? James D. Unnever is the co-author (with Shaun L. Gabbidon) of the new book A Theory of African American Offending: Race, Racism, and Crime (Routledge, 2011). This book builds on the assertion of sociologist and cultural critic W. E. B. Du Bois that theories of African American life, culture, and especially crime must deal with the unique circumstances and worldview of black people living in America. Unnever and Gabbidon take this assertion seriously as they develop a theory that the reading public in general and criminologists and lawyers specifically, indeed all associated with the criminal justice system, should read. I’ve recommended this book to colleagues at the collegiate level in African American Studies, as well as to junior high and high school teachers working in predominantly African American schools. This book is a must read! Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

What can judges do to change society? Fifty-seven years ago, the Supreme Court resolved to find out: the unanimous ruling they issued in Brown v. Board of Education threw the weight of the Constitution fully behind the aspiration of social equality among the races. The possibilities of law as an engine of social justice seem to be encapsulated in the story of the decision — and in the many decades of resistance to its enforcement. Today, there are those who argue that the Court failed in its goal, since actual racial mixing in U.S. schools has declined steadily over the last 35 years. But in her new book, In Brown’s Wake: Legacies of America’s Educational Landmark (Oxford UP, 2011), Harvard Law School Dean Martha Minow argues that the legacy of Brown should be viewed in a larger context. Neither a self-executing mandate for racial equality nor a futile rhetorical exercise, the decision was destined to become a lodestar for a wide variety of reformers in all areas of American society — and beyond. In a series of case studies, Dean Minow’s book reveals how Brown, the milestone in American jurisprudence, took on meanings the judges never envisioned, in the hands of advocates who, in 1954, nobody could have expected. Whatever else it was, the decision was that vital ingredient to be coupled with any kind of action: an idea whose time had come. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Copyright is one of those topics over which even two saints disagreed. The legend has it that Saint Columba and Saint Finnian engaged in an argument as Columba had secretly, and without the latter’s permission, copied a Latin Psalter owned by Finnian. When Finnian found out about it, he requested the copy, but Columbia refused to give it back. Dermott, the King of Ireland, decreed “to every cow belong its calf, so to every book belong its copy.” In 1925 the former Assistant Register of Copyrights in the United States, Richard De Wolf, pointed out that “the progress of copyright law does not take place by revolutions, but by successive stages. It resembles the growth of a city, in which, as time goes on, some parts are torn down and others are devoted to new uses..” However, this process has been historically riddled with controversy and disagreement, and not only among saints. Authorship rights and other questions related to the intellectual property became issues of major importance with the advent of the industrial revolution, in particular, with the advancement of printing technologies. Even figures like Charles Dickens were concerned with the free circulation of British books abroad. English statutes to protect intellectual property were adopted as early as in 1624. As the international legal mechanisms protecting intellectual property have solidified, the critique, mainly emanating from the global south, about its monopolizing and exclusionary nature has intensified as well. The Universal Declaration of Human Rights contains provisions regarding the protection of private property as well as intellectual property. In particular, Article 27 of the Universal Declaration of Human Rights provides that “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” But is it proper to think of the world of ideas and knowledge, the world, which as Rajshree Chandra argues, is inexhaustible and socially distributed, in the same way as we think of the world of tangibles such as clothes, cars, or houses? And what are the main problems associated with relying on normative justifications for private property while we consider moral underpinnings of property rights over knowledge? And if indeed the moral groundings of the right to intellectual property are the same as those of the right to the ownership of property, what conclusions should be made from the distributional consequences of the transnational enforcement of these rights? Chandra takes up all these questions and more in her fine new book Knowledge as Property, Issues in the Moral Grounding of Intellectual Property Rights (Oxford University Press, 2010). Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

One hallmark of important art, in any medium, is a thoughtful relation with artistic precursors. Every artist reckons with heroes and rivals, influences and nemeses, and the old work becomes a part of the new. In Adam Bradley’s seminal monograph on hip-hop lyrics, Book of Rhymes, legendary MC Mos Def describes his desire to participate in posterity: “I wanted it to be something that was durable. You can listen to all these Jimi records and Miles records and Curtis Mayfield records; I wanted to be able to add something to that conversation.” In the last thirty years, technology has transformed the conversation between past and present musicians: it is now possible to quote a previous work not only note for note, but byte for byte. The turntable and the sampler are the hip-hop artist’s quintessential instruments. The culture of hip-hop bricolage, coupled with intense commercial pressures in the recording industry and an inevitable proliferation of rip-off artists, has created difficult challenges for copyright law and for the concept of licensing. Several cultures must adapt to each other, and often they are doing so in the courtroom. In a study both comprehensively theoretical and rich with the voices of musicians and producers, Kembrew McLeod and Peter DiCola have addressed together both the legal and the cultural implications of digital sampling in the music industry. Creative License: The Law and Culture of Digital Sampling (Duke University Press, 2011), in tandem with related multimedia projects from the Future of Music Coalition, lays out what they have learned and suggests a way forward for the industry in the digital age. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

What kind of education are students at top American law schools getting? And how does that education influence their activities upon graduation? In Walter Olson‘s Schools for Misrule: Legal Academia and an Overlawyered America (Encounter Books, 2011), the author, an economist and not a lawyer, looks at what is happening at our nation’s elite law schools, and its implications for citizens, businesses, and taxpayers. Olson, a Senior Fellow at the CATO Institute, describes what he calls the consensus view of law school faculties, and how hard it is for law students to find alternative points of view. He describes how the litigation explosion’s origins stem from the views of one influential professor, and the costs that this “American disease” imposes on our economy. In addition, he describes some revealing conflicts between trial lawyers and their allies that reveal the financial incentives motivating the testimony of certain scholars in favor of costly and often frivolous lawsuits. Read all about it, and more, in Olson’s penetrating new book. Please become a fan of “New Books in Public Policy” on Facebook if you haven’t already. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Wrongful conviction is, both morally and practically, the worst mistake that society can inflict on an individual. From Franz Kafka to Errol Morris, from Arthur Koestler to Harper Lee, Western culture is deeply shaken at the prospect of the innocent person condemned. Outside of fiction, it used to be nearly impossible to prove a convict’s innocence to a level of certainty that could overturn the judgment of a jury: after all, twelve peers have found that it would be unreasonable even to doubt his guilt. In the absence of procedural error, society lacked any way to correct such a verdict. But in the late nineteen-eighties, with the advent of reliable DNA testing, that changed. One wrongful conviction is a tragedy; a hundred thousand wrongful convictions is a statistic. In his new book Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Harvard UP, 2011), Brandon L. Garrett tries to bridge the gap between the two. Drawing on court records and archives at the Innocence Project, he presents an extensive analysis of two hundred and fifty erroneous convictions for extremely serious crimes. The data, unique in history, constitute a perfect ‘natural experiment’ for evaluating the weaknesses of the criminal-justice system. The stories Garrett brings to light are horrifying in their routine simplicity and in the absence of malice that led to such unjust results. Moreover, the exonerees’ faulty trials share many common elements, and the patterns of error Garrett has identified point the way toward crucial reforms. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Why did Reconstruction fail? Why didn’t the post-war Federal government protect the civil rights of the newly freed slaves? And why did it take Washington almost a century to intercede on the behalf of beleaguered, oppressed African Americans in the South? In a terrific new book, Charles Lane explains why. The Day Freedom Died. The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction (Henry Holt, 2008) tells the tale of a little-known though remarkably important incident: the murder of close to 100 freedmen by a posse of White supremacists in Louisiana in 1873. Charles does an excellent job of narrating this heart-wrenching and disturbing event. The book would be worth reading for that story alone. But he really comes into his own in describing the legal aftermath of the slaughter. With all the skill of a seasoned reporter–which he is–Charles chronicles the passage of the Colfax case from the courts of New Orleans to the U.S. Supreme Court. The result was a landmark decision–United States v. Cruikshank–that effectively placed the civil rights of Southern African Americans in the hands of Southern Whites for almost a century, with predictable results. A must-read for anyone interested in Reconstruction, constitutional law, and the sad history of race-relations in the United States. Please become a fan of “New Books in African American Studies” on Facebook if you haven’t already. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Franklin D. Roosevelt promised the country “bold, persistent experimentation” to address the Great Depression – but for quite a while his ideas were a little too bold for the justices of the Supreme Court, who struck down many New Deal laws as unconstitutional. FDR had his day: over the years he replaced many of those justices with his own men, New Dealers who then, as judges, worked boldly with the Constitution. Irascible, ingenious, and remarkably uncooperative, the four justices in Noah Feldman‘s Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices (Twelve, 2010) – Frankfurter, Douglas, Black, and Jackson – grappled with fundamental questions about government that are re-emerging in the Obama era. We have to answer them again, but Prof. Feldman has given us a constitutional handbook that is also an absorbing and entertaining quadruple biography. In our conversation, he situates the book among his other, quite disparate writings, and explains what lessons we should draw from the FDR Court for the current (remarkably similar) moment in politics and constitutional law. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Clausewitz famously said war was the “continuation of politics by other means.” Had he been unfortunate enough to witness the way the Wehrmacht fought on the Eastern Front in World War II, he might well have said war (or at least that war) was the “continuation of politics by any means.” Hitler was terribly specific about this. The Slavs, he said, were Untermenschen (subhumans). The Communists were Judeo-bolschewisten (Jewish Bolsheviks). Soviet soldiers were keine Kameraden (not comrades-in-arms). The East was future German Lebensraum (living space). All this meant that the ordinary rules of armed conflict had to be suspended. The German armed forces were to conduct a Vernichtungskrieg, a war of annihilation. The German military had never been in the business of wanton destruction. On the contrary, it prided itself on being the most professional fighting force in the world. It was admired for many things, but two of them were honor and loyalty. And it was the clash of these two otherwise laudable traits that got the Wehrmacht in deep trouble, for Hitler essentially ask the German military to choose between the two in the East. Would the army uphold the traditional, honorable ideal of civilized military conduct, or would it remain loyal to Hitler and prosecute his Vernichtungskrieg? As Valerie Hebert shows in her remarkable Hitler’s Generals on Trial: The Last War Crimes Tribunal at Nuremberg (University Press of Kansas, 2010), they chose the latter course. At Hitler’s request, they murdered civilians, starved prisoners of war, and enslaved occupied peoples by the millions. So it’s little wonder that after the war the victors called the leaders of the Wehrmacht to account for their thoroughly criminal behavior. And here they behaved no better, for they lamely claimed that they didn’t commit these outrages, didn’t know others were committing them, or were under orders so they had no choice. When they did admit to killing thousands in one or another Aktion, they claimed it was military necessity or that they were forced to be brutal because the Soviets were more brutal still (a pathetic instance of blaming the victim). Given the setting (their honor and even lives were on the line), it’s not surprising that they lied and rationalized. What is more unsettling is that they showed little or no remorse for what they had done (during or after the trials) and that they enjoyed considerable sympathy within the German population. As Valarie points out, the Germans mounted large campaigns both against the Nuremberg proceedings and for the release of the Wehrmacht-criminals after they had been incarcerated. The former were unsuccessful, though the latter resulted in the premature release of nearly all those convicted in the Wehrmacht trials. Please become a fan of “New Books in History” on Facebook if you haven’t already. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law

Most everyone has heard of the Nuremberg Trials. Popular books have been written about them. Hollywood made movies about them. Some of us can even name a few of the convicted (Hermann Goering, Albert Speer, etc.). But fewer of us know about what might be called “Nuremberg East,” that is, the Toyko trials held after the defeat of the Japanese in World War Two. These proceedings generated few books, no movies, and therefore occupy only a minor place in Western historical memory. Thanks to Yuma Totani’s excellent book, The Tokyo War Crimes Trials. The Pursuit of Justice in the Wake of World War II (Harvard, 2008; also available in Japanese here), that may change. We should hope it does, because the Tokyo trials were important. They not only helped the Japanese come to terms with what their government and military had done during the war (truth be told, they are still coming to terms with it today), but it also set precedents that are still being applied in international law today. More than that, Totani offers a challenging interpretation of the trials. They weren’t so much “victor’s justice” (the common interpretation in Japan) as a lost opportunity. Reading her book one can’t help but get the feeling that the Americans and their confederates bungled the trials badly. Instead of trying to establish personal responsibility in all cases, the Allies simply arrested the upper echelons of the Japanese civil and military elite and selected those who were “representative” for indictment. Those who were not indicted–though probably just as culpable as those who were–were set free, giving rise to the myth that they had brokered deals with the Americans. The prosecution was headed by an inattentive alcoholic (Joseph Keenan) who preferred interrogating the accused to gathering hard documentary evidence. The defense was comprised of ill-prepared Japanese attorneys and their less-than-helpful Allied aids. Confusion reigned in the courtroom. And of course there were significant translation problems throughout. The trials were something of a farce. I always wondered why many Japanese today don’t think very highly of the Tokyo proceedings. Now, thanks to Yuma Totani’s informative book, I have a better understanding of why. Please become a fan of “New Books in History” on Facebook if you haven’t already. Learn more about your ad choices. Visit megaphone.fm/adchoicesSupport our show by becoming a premium member! https://newbooksnetwork.supportingcast.fm/law