[Cross-posted from New Books in Big Ideas] All humans have an emotionally-driven sense of fairness. We get treated unfairly and we get mad. It’s no wonder, then, that our laws–and those of almost everyone else–are intended to assure that people are treated fairly. When those laws fail and we are treated unfairly, we encounter another human universal–the desire for revenge. If someone pokes you in the eye, more likely than not your first inclination is going to be to poke them in the eye too. That “eye-for-an-eye” logic just feels intuitively fair to us. Yet, our laws–and those of most “civilized” places–explicitly deny victims the right to avenge their injuries. The state has a monopoly on justice, and the state’s justice (theoretically) has nothing to do with revenge. The courts asks victims to check their “irrational” desire for revenge and pursue what is (supposedly) a higher, more “rational” form of justice.

In Payback: The Case for Revenge (University of Chicago Press, 2013), Thane Rosenbaum argues that we’ve gone way too far in our rejection of revenge. By denying the right to revenge, we have essentially asked people to do something that is impossible–squelch their very natural feeling that wrong-doers must pay in equal measure for the harms they brought. In order for the moral universe to be righted, scofflaws must pay–and be seen to have paid–for what they have done. Our laws recognize none of this, says Rosenbaum, and we should do something about it. We need to bring revenge, he argues, back in.

[Cross-posted from New Books in Big Ideas] 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.

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.

[Cross-posted from New Books in History] You may have heard of a fellow named Ivan or John Demjanuik. He made the news–repeatedly over a 30 year period– because he was, as many people probably remember, a Nazi war criminal nick-named “Ivan the Terrible” for his brutal treatment of Jews (and others) in the Sobibor death camp. The trouble is, as Richard Rashke points out in his new book Useful Enemies: John Demjanjuk and America’s Open-Door Policy for Nazi War Criminals (Delphinium, 2013), Demjanuik was not a Nazi, was not “Ivan the Terrible,” and, though he was certainly a guard at Sobibor, it’s not entirely clear what he did (though it was likely very bad). Again and again he was brought to trial for his alleged crimes. Again and again the courts failed to agree on what he had done. Demjaniuk was and remains something of a mystery, a vital mystery that we badly want to solve but cannot. After all, we need to know who is a war criminal and who is not.

What’s most interesting about Demjaniuk–at least to this reader–is the moral complexity of his story. As Rashke shows, he was repeatedly compelled to make life and death choices as he tried to stay survive in Stalinist Russia, in Nazi-occupied Eastern Europe, and even after the war. He had options, but they were almost always bad ones, and often deadly ones. He was a “collaborator” to be sure. But, Rashke asks, what exactly is a “collaborator”? Could he have chosen differently and hoped to survive? Could he have acted “morally” in the context within which he found himself? Rashke says “yes.” Listen in and find out why.

[Cross-posted from New Books in Math] 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.

[Cross-posted from New Books in Political Science] 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.

[Cross-posted from New Books in Big Ideas] 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 Sander and Taylor are very much in favor of Affirmative Action, though they would like to see it reformed. Listen in and see how.

[Cross-posted from New Books in East Asian Studies] 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, Pär 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!

[Cross-posted from New Books in Popular Music] 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.

“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).  In 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.

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.

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.

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.

[Crossposted from New Books in Public Policy] 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.

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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.

[Crossposted from New Books in History] 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.

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[Crossposted from New Books in History] Did you ever wonder how we got from a moment in which almost everything on film could be censored (the Progressive Era) to the moment in which nothing on film could be censored (today)? From the Nickelodeon to Deep Throat? The answer is provided by Laura Wittern-Keller and Raymond J. Haberski in their wonderful new book The Miracle Case: Film Censorship and the Supreme Court (University of Kansas Press, 2008). You’ve probably never heard of “The Miracle” or the case it launched in 1949. It’s a short film by Roberto Rossellini about a deranged women who, having slept with a man she believes is St. Joseph, gives birth to a child in a deserted mountain church. Fellini has a bit part (as “Joseph”). Critics generally liked it; Catholics in New York generally didn’t. The Church mounted a campaign against the film and the authorities relented: “The Miracle” was banned on the grounds that it was  “sacrilegious.” In 1949, those were fine grounds. Not for long. The film’s distributor–the feisty Joseph Burstyn–fought for the right to exhibit it all the way to the Supreme Court in 1952. And he won. Between 1952 and 1965, the states got out of the film-censorship business and we entered a new era of free-speech absolutism when it comes to film. One wonders if that’s a good thing.

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[Crossposted from New Books in History] This week we interviewed Laura Wittern-Keller about her new book, Freedom of the Screen: Legal Challenges to Film Censorship 1915-1981. Both well written and extremely well researched, Freedom of the Screen takes the reader case by case through the history of film censorship in the United States. Dr. Wittern-Keller is a visiting assistant professor of history and public policy at the University at Albany (SUNY) and is also the recipient of the New York State Archives Award for Excellence in Research. Francis G. Couvares, author of Movie Censorship and American Culture, claims that “[Dr. Wittern-Keller's] research is prodigious and fills a significant gap in the field. All who are engaged in this field will have to incorporate her findings into their stories of movie censorship.”

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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.