New Books in the Library – February

 

Faculty Publication


The Heart of the Constitution: How the Bill of Rights Became the Bill of Rights

Magliocca, Gerard N.
KF4749 .M325 2018


This is the untold story of the most celebrated part of the Constitution. Until the twentieth century, few Americans called the first ten constitutional amendments drafted by James Madison in 1789 and ratified by the states in 1791 the Bill of Rights. Even more surprising, when people finally started doing so between the Spanish-American War and World War II, the Bill of Rights was usually invoked to justify increasing rather than restricting the authority of the federal government. President Franklin D. Roosevelt played a key role in that development, first by using the Bill of Rights to justify the expansion of national regulation under the New Deal, and then by transforming the Bill of Rights into a patriotic rallying cry against Nazi Germany. It was only after the Cold War began that the Bill of Rights took on its modern form as the most powerful symbol of the limits on government power.

These are just some of the revelations about the Bill of Rights in Gerard Magliocca’s The Heart of the Constitution. For example, we are accustomed to seeing the Bill of Rights at the end of the Constitution, but Madison wanted to put them in the middle of the document. Why was his plan rejected and what impact did that have on constitutional law? Today we also venerate the first ten amendments as the Bill of Rights, but many Supreme Court opinions say that only the first eight or first nine amendments. Why was that and why did that change?

The Bill of Rights that emerges from Magliocca’s fresh historical examination is a living text that means something different for each generation and reflects the great ideas of the Constitution–individual freedom, democracy, states’ rights, judicial review, and national power in time of crisis.

Featured Titles


Cheating: Ethics in Everyday Life

Rhode, Deborah L.
K247.6 .R46 2018


Cheating is deeply embedded in everyday life. The costs of the most common forms of cheating total close to a trillion dollars annually. Part of the problem is that many individuals fail to see such behavior as a serious problem. “Everyone does it” is a common rationalization, and one that comes uncomfortably close to the truth. That perception is also self-perpetuating. The more that individuals believe that cheating is widespread, the easier it becomes to justify. Yet what is most notable about analysis of the problem is how little there is of it. Whether or not Americans are cheating more, they appear to be worrying about it less.

In Cheating, eminent legal scholar Deborah L. Rhode offers the only recent comprehensive account of cheating in everyday life and the strategies necessary to address it. Because cheating is highly situational, Rhode drills down on its most common forms in sports, organizations, taxes, academia, copyright infringement, marriage, and insurance and mortgages.

Cheating also reviews strategies necessary to address the pervasiveness and persistence of cheating in these contexts. We clearly need more cultural reinforcement of ethical conduct. Efforts need to begin early, with values education by parents, teachers, and other role models who can display and reinforce moral behaviors. Organizations need to create ethical cultures, in which informal norms, formal policies, and reward structures all promote integrity. People also need more moral triggers that remind them of their own values. Equally important are more effective enforcement structures, including additional resources and stiffer sanctions. Finally, all of us need to take more responsibility for combatting cheating. We need not only to subject our own conduct to more demanding standards, but also to assume a greater obligation to prevent and report misconduct. Sustaining a culture that actively discourages cheating is a collective responsibility, and one in which we all have a substantial stake.

#Republic: Divided Democracy in the Age of Social Media

Sunstein, Cass R.
HM851 .S869 2017


As the Internet grows more sophisticated, it is creating new threats to democracy. Social media companies such as Facebook can sort us ever more efficiently into groups of the like-minded, creating echo chambers that amplify our views. It’s no accident that on some occasions, people of different political views cannot even understand each other. It’s also no surprise that terrorist groups have been able to exploit social media to deadly effect.

Welcome to the age of #Republic. In this revealing book, Cass Sunstein, the New York Times bestselling author of Nudge and The World According to Star Wars, shows how today’s Internet is driving political fragmentation, polarization, and even extremism—and what can be done about it.

Thoroughly rethinking the critical relationship between democracy and the Internet, Sunstein describes how the online world creates “cybercascades,” exploits “confirmation bias,” and assists “polarization entrepreneurs.” And he explains why online fragmentation endangers the shared conversations, experiences, and understandings that are the lifeblood of democracy.

In response, Sunstein proposes practical and legal changes to make the Internet friendlier to democratic deliberation. These changes would get us out of our information cocoons by increasing the frequency of unchosen, unplanned encounters and exposing us to people, places, things, and ideas that we would never have picked for our Twitter feed.

#Republic need not be an ironic term. As Sunstein shows, it can be a rallying cry for the kind of democracy that citizens of diverse societies most need.

Scalia Speaks: Reflections on Law, Faith, and Life Well Lived

Scalia, Antonin
KF213 .S32 .S32 2017


Americans have long been inspired by Justice Scalia’s ideas, delighted by his wit, and instructed by his intelligence. He was a sought-after speaker at commencements, convocations, and events across the country. Scalia Speaks will give readers the opportunity to encounter the legendary man more fully, helping them better understand the jurisprudence that made him one of the most important justices in the Court’s history and introducing them to his broader insights on faith and life.

This definitive collection of beloved Supreme Court Justice Antonin Scalia’s finest speeches covers topics as varied as the law, faith, virtue, pastimes, and his heroes and friends. Featuring a foreword by longtime friend Justice Ruth Bader Ginsburg and an intimate introduction by his youngest son, this volume includes dozens of speeches, some deeply personal, that have never before been published. Christopher J. Scalia and the Justice’s former law clerk Edward Whelan selected the speeches.

Supreme Injustice: Slavery in the Nation’s Highest Court

Finkelman, Paul,
KF4545 .S5 F567 2018


The three most important Supreme Court Justices before the Civil War―Chief Justices John Marshall and Roger B. Taney and Associate Justice Joseph Story―upheld the institution of slavery in ruling after ruling. These opinions cast a shadow over the Court and the legacies of these men, but historians have rarely delved deeply into the personal and political ideas and motivations they held. In Supreme Injustice, the distinguished legal historian Paul Finkelman establishes an authoritative account of each justice’s proslavery position, the reasoning behind his opposition to black freedom, and the incentives created by circumstances in his private life.

Finkelman uses census data and other sources to reveal that Justice Marshall aggressively bought and sold slaves throughout his lifetime―a fact that biographers have ignored. Justice Story never owned slaves and condemned slavery while riding circuit, and yet on the high court he remained silent on slave trade cases and ruled against blacks who sued for freedom. Although Justice Taney freed many of his own slaves, he zealously and consistently opposed black freedom, arguing in Dred Scott that free blacks had no Constitutional rights and that slave owners could move slaves into the Western territories. Finkelman situates this infamous holding within a solid record of support for slavery and hostility to free blacks.

Supreme Injustice boldly documents the entanglements that alienated three major justices from America’s founding ideals and embedded racism ever deeper in American civic life.

More New Books


American Justice 2017: The Supreme Court in Crisis

Robinson, Kimberly
KF8776 .R63 2017


With the death of associate justice Antonin Scalia, the Supreme Court was plunged into crisis. Refusing to hold hearings or confirm the nominee of a Democratic president almost a year away from a presidential election, the Republican-controlled Senate held the court hostage, forcing it to do its work through nearly the entire term ending in June 2017 with just eight justices. In American Justice 2017: The Supreme Court in Crisis, Kimberly Robinson examines the way individual justices and the institution as a whole reacted to this unprecedented, politically fraught situation.

In public, the justices put on brave faces, waiting for the confirmation battle to play itself out, while indicating in occasional statements that the court would muddle through just fine. In private, though, things appear to have been more complicated. Narrow decisions, lackluster choice of cases, and odd bedfellows teaming up on the same sides of opinions and dissents give us a hint of the strenuous effort the eight justices made to uphold the integrity of the institution in the face of hurricane-force partisan gales.

Being Watched: Legal Challenges to Government Surveillance

Vagle, Jeffrey L.
KF5399 .V44 2017


The tension between national security and civil rights is nowhere more evident than in the fight over government domestic surveillance. Governments must be able to collect information at some level, but surveillance has become increasingly controversial due to its more egregious uses and abuses, which tips the balance toward increased—and sometimes total—government control.This struggle came to forefront in the early 1970s, after decades of abuses by U.S. law enforcement and intelligence agencies were revealed to the public, prompting both legislation and lawsuits challenging the constitutionality of these programs. As the plaintiffs in these lawsuits discovered, however, bringing legal challenges to secret government surveillance programs in federal courts faces a formidable obstacle in the principle that limits court access only to those who have standing, meaning they can show actual or imminent injury—a significant problem when evidence of the challenged program is secret.

In Being Watched, Jeffrey L. Vagle draws on the legacy of the 1972 Supreme Court decision in Laird v. Tatum to tell the fascinating and disturbing story of jurisprudence related to the issue of standing in citizen challenges to government surveillance in the United States. It examines the facts of surveillance cases and the reasoning of the courts who heard them, and considers whether the obstacle of standing to surveillance challenges in U.S. courts can ever be overcome.

Vagle journeys through a history of military domestic surveillance, tensions between the three branches of government, the powers of the presidency in times of war, and the power of individual citizens in the ongoing quest for the elusive freedom-organization balance. The history brings to light the remarkable number of similarities among the contexts in which government surveillance thrives, including overzealous military and intelligent agencies and an ideologically fractured Supreme Court. More broadly, Being Watched looks at our democratic system of government and its ability to remain healthy and intact during times of national crisis.

A compelling history of a Supreme Court decision and its far-reaching consequences, Being Watched is essential reading for anyone seeking to understand the legal justifications for—and objections to—surveillance.

Benefit Corporation Law and Governance: Pursuing Profit with Purpose

Alexander, Frederick H.
KF1355 .A953 2018


Corporations today are embedded in a system of shareholder primacy. Nonfinancial concerns—like worker well-being, environmental impact, and community health—are secondary to the imperative to maximize share price. Benefit corporation governance reorients corporations so that they work for the interests of all stakeholders, not just shareholders.

This is the first authoritative guide to this new form of governance. It is an invaluable guide for legal and financial professionals, as well as interested entrepreneurs and investors who want to understand how purposeful corporate governance can be put into practice.

Charity Law: International Perspectives

Chevalier-Watts, Juliet
K797 .C49 2018


This work provides an analytical and comparative analysis of the development of charity law, as well as providing a critical commentary on a number of contemporary changes within the charity law field across a range of common law jurisdictions. The book follows earlier studies which cover a similar, and traditional, jurisdictional spread, but which are now dated. It further considers in detail charity law issues within Hong Kong and Singapore, about which there has been historically more limited charity law discussion. The area is growing in terms of practical legal and academic interest.

Climate Change Law

Farber, Daniel A.
KF3783 .F37 2018


Over the past thirty years, a body of law dealing with the issue of climate change has taken form. This rapidly emerging body of law runs the gamut from state and local regulations to federal policies and international agreements and includes both public and private sector involvement. Climate Change Law is based on the view that this issue is just too important to leave to specialists alone. It is the first book to offer a concise, readable treatment of this entire body of law. The focus is on core concepts of climate change law, rather than all of the complex details. The book begins by discussing the scientific and policy issues that frame the legal scheme, including the state of climate science, the meaning of the social cost of carbon, and the variety of tools that are available to reduce carbon emissions. It then covers in turn the international, national, and state efforts in this sphere. Finally, the book turns to the challenge of adapting to climate change, before exploring the concept of geoengineering and the potential challenges associated with using geoengineering as a tool for addressing climate change. The book is designed to be accessible to a broad range of readers, not just those who have backgrounds in climate science, environmental economics, or law.

Defending the Masses: A Progressive Lawyer’s Battles for Free Speech

Easton, Eric B.
KF373 .R557 E27 2018


Free speech and freedom of the press were often suppressed amid the social turbulence of the Progressive Era and World War I. As muckrakers, feminists, pacifists, anarchists, socialists, and communists were arrested or censored for their outspoken views, many of them turned to a Manhattan lawyer named Gilbert Roe to keep them in business and out of jail.

Roe was the principal trial lawyer of the Free Speech League―a precursor of the American Civil Liberties Union. His cases involved such activists as Emma Goldman, Lincoln Steffens, Margaret Sanger, Max Eastman, Upton Sinclair, John Reed, and Eugene Debs, as well as the socialist magazine The Masses and the New York City Teachers Union. A friend of Wisconsin’s progressive senator Robert La Follette since their law partnership as young men, Roe defended “Fighting Bob” when the Senate tried to expel him for opposing America’s entry into World War I.

In articulating and upholding Americans’ fundamental right to free expression against charges of obscenity, libel, espionage, sedition, or conspiracy during turbulent times, Roe was rarely successful in the courts. But his battles illuminate the evolution of free speech doctrine and practice in an era when it was under heavy assault. His greatest victory, including the 1917 decision by Judge Learned Hand in The Masses Publishing Co. v. Patten, is still influential today.

Experiential Education in the Law School Curriculum

KF272 .E99 2018


The mandate for more experiential education raises a fundamental question for law teachers: how do we design and provide these learning opportunities for our students? This book offers answers to that question. Organized into four sections, it discusses specific techniques for incorporating various forms of experiential education into the law school curriculum, ranging from discrete modules of experiential instruction to complete curriculum reform. Section I provides the foundation for making curricular changes, with chapters providing guidance on building both institutional and student support for experiential education. Section II explores the spectrum of experiential education, starting with chapters that explain experiential modules and classroom exercises that can be included in first-year and upper-level courses before moving to chapters that describe and explain immersive learning experiences such as course-long simulations and semester-in-practice programs, culminating in chapters focusing on complete curriculum reform. Section III describes programs that offer experiential learning opportunities outside of the regular curriculum. Section IV concludes the book, offering online resources for experiential education and guidance on how to provide experiential education in an online format.

The Global Evolution of Clinical Legal Education: More Than a Method

Wilson, Richard J.
K100 .W55 2018


Globally, the methodologies of legal education have not changed in any fundamental way, some methods dating back hundreds of years. Law schools have relied, for too long, on passive learning methods such as lectures or cases. Clinical legal education provides an alternative that is more than just another pedagogical method. It provides a way for students to experience their emerging professional selves, while providing services or projects with poor and underrepresented clients. This book documents both the historical origins of clinical experiments in the earliest days of US university legal education, and the now-global reach of clinical pedagogy as a proven tool for effective training of legal professionals.

Judicial Review and American Conservatism: Christianity, Public Education, and the Federal Courts in the Reagan Era

Rubin, Robert Daniel
KF228 .J34 R83 2017


The Christian Right of the 1980s forged its political identity largely in response to what it perceived as liberal ‘judicial activism’. Robert Daniel Rubin tells this story as it played out in Mobile, Alabama. There, a community conflict pitted a group of conservative evangelicals, a sympathetic federal judge, and a handful of conservative intellectuals against a religious agnostic opposed to prayer in schools, and a school system accused of promoting a religion called ‘secular humanism’. The twists in the Mobile conflict speak to the changes and continuities that marked the relationship of 1980s’ religious conservatism to democracy, the courts, and the Constitution. By alternately focusing its gaze on the local conflict and related events in Washington, DC, this book weaves a captivating narrative. Historians, political scientists, and constitutional lawyers will find, in Rubin’s study, a challenging new perspective on the history of the Christian Right in the United States.

Law and Economics of Federalism

 KF4600 .L38 2017


This unique volume takes a primarily empirical perspective on the law and economics of federalism. Using cross jurisdiction variation, the specially commissioned chapters examine the effects of various state experiments in areas such as crime, welfare, consumer protection, and a host of other areas. Although legal scholars have talked about states as laboratories for decades, rarely has the law and economics literature treated the topic of federalism empirically in such a systematic and useful way.

Law and Legitimacy in the Supreme Court

Fallon, Richard H., Jr.
KF8748 .F284 2018


Why do self-proclaimed constitutional “originalists” so regularly reach decisions with a politically conservative valence? Do “living constitutionalists” claim a license to reach whatever results they prefer, without regard to the Constitution’s language and history? In confronting these questions, Richard H. Fallon reframes and ultimately transcends familiar debates about constitutional law, constitutional theory, and judicial legitimacy.

Drawing from ideas in legal scholarship, philosophy, and political science, Fallon presents a theory of judicial legitimacy based on an ideal of good faith in constitutional argumentation. Good faith demands that the Justices base their decisions only on legal arguments that they genuinely believe to be valid and are prepared to apply to similar future cases. Originalists are correct about this much. But good faith does not forbid the Justices to refine and adjust their interpretive theories in response to the novel challenges that new cases present. Fallon argues that theories of constitutional interpretation should be works in progress, not rigid formulas laid down in advance of the unforeseeable challenges that life and experience generate.

Law and Legitimacy in the Supreme Court offers theories of constitutional law and judicial legitimacy that accept many tenets of legal realism but reject its corrosive cynicism. Fallon’s account both illuminates current practice and prescribes urgently needed responses to a legitimacy crisis in which the Supreme Court is increasingly enmeshed.

Legal Persuasion: A Rhetorical Approach to the Science

Berger, Linda L.
K213 .B43 2018


This book develops a central theme: legal persuasion results from making and breaking mental connections. This concept of making connections inspired the authors to take a rhetorical approach to the science of legal persuasion. That singular approach resulted in the integration of research from cognitive science with classical and contemporary rhetorical theory, and the application of these two disciplines to the real-life practice of persuasion. The combination of rhetorical analysis and cognitive science yields a new way of seeing and understanding legal persuasion, one that promises theoretical and practical gains. The work has three main functions. First, it brings together the leading models of persuasion from cognitive science and rhetorical theory, blurring boundaries and leveraging connections between the often-separate spheres of science and rhetoric. Second, it illustrates this persuasive synthesis by working through concrete examples of persuasion, demonstrating how to apply this new approach to the taking apart and the putting together of effective legal arguments. In this way, the book demonstrates the advantages of a deeper and more nuanced understanding of persuasion. Third, the volume assesses and explains why, how, and when certain persuasive methods and techniques are more effective than others. The book is designed to appeal to scholars in law, rhetoric, persuasion science, and psychology; to students learning the practice of law; and to judges and practicing lawyers who engage in persuasion.

Legally Straight: Sexuality, Childhood, and the Cultural Value of Marriage

Rollins, Joe
KF539 .R65 2018


Legally Straight offers a critical reading of the legal debates over lesbian and gay marriage in the United States. The book draws on key judicial opinions to trace how our understanding of heterosexuality and marriage has changed. Upon closer inspection, it seemed that the cultural value of marriage was becoming tarnished and the trouble appeared to center on one very specific issue: reproduction.

As opponents of lesbian and gay marriage emphasized the link between marriage and accidental pregnancy, the evidence mounted, the arguments proliferated, and resistance began to turn against itself. Heterosexuality, it seemed for a moment, was little more than a set of palliative prescriptions for the worst of human behavior, and children became the victims. It thus became the province of the courts to reinforce the cultural value of marriage by resisting what came to be known as the “procreation argument,” the assertion that marriage exists primarily to regulate the unruly aspects of heterosexual reproduction. Cultural conceptions of children and childhood were being put at risk as gays and lesbians were denied marriage, so that writing lesbian and gay families into the marriage law became the better option.

Routledge Handbook of Judicial Behavior

KF8775 .R68 2018


Interest in social science and empirical analyses of law, courts and specifically the politics of judges has never been higher or more salient. Consequently, there is a strong need for theoretical work on the research that focuses on courts, judges and the judicial process. The Routledge Handbook of Judicial Behavior provides the most up to date examination of scholarship across the entire spectrum of judicial politics and behavior, written by a combination of currently prominent scholars and the emergent next generation of researchers. Unlike almost all other volumes, this Handbook examines judicial behavior from both an American and Comparative perspective.

Each author in this volume provides perspectives on the most current methodological and substantive approaches in their respective areas, along with suggestions for future research. The chapters contained within will generate additional scholarly and public interest by focusing on topics most salient to the academic, legal and policy communities.

Scalia v. Scalia: Opportunistic Textualism in Constitutional Interpretation

Langford, Catherine L.
KF8745 .S33 L36 2017


Antonin Scalia is considered one of the most controversial justices to have been on the United States Supreme Court. A vocal advocate of textualist interpretation, Justice Scalia argued that the Constitution means only what it says and that interpretations of the document should be confined strictly to the directives supplied therein. This narrow form of constitutional interpretation, which limits constitutional meaning to the written text of the Constitution, is known as textualism.

Scalia v. Scalia: Opportunistic Textualism in Constitutional Interpretation examines Scalia’s discussions of textualism in his speeches, extrajudicial writings, and judicial opinions. Throughout his writings, Scalia argues textualism is the only acceptable form of constitutional interpretation. Yet Scalia does not clearly define his textualism, nor does he always rely upon textualism to the exclusion of other interpretive means.

Scalia is seen as the standard bearer for textualism. But when textualism fails to support his ideological aims (as in cases that pertain to states’ rights or separation of powers), Scalia reverts to other forms of argumentation. Langford analyzes Scalia’s opinions in a clear area of law, the cruel and unusual punishment clause; a contested area of law, the free exercise and establishment cases; and a silent area of law, abortion. Through her analysis, Langford shows that Scalia uses rhetorical strategies beyond those of a textualist approach, concluding that Scalia is an opportunistic textualist and that textualism is as rhetorical as any other form of judicial interpretation.

Seeing Through Legalese: More Essays on Plain Language

Kimble, Joseph
KF250 .K534 2017


This is Joseph Kimble’s second book of essays. The first, published in 2006, was acclaimed as “superb,” invaluable,” and “a treasure.” Seeing Through Legalese collects his more recent writings and promises to be equally good. Kimble, now a distinguished professor emeritus, is a leading figure in the international effort to bring a clearer, plainer style to legal writing and drafting. Every lawyer, law student, legislative drafter, and legal scholar will benefit from these essays. They are brimming with sound advice, helpful guidelines, and real-world examples (drawn in large part from his work in redrafting federal court rules). And several of them respond to the continuing false criticisms of plain legal language. Readers will find variety, inspiration, and instruction in these pages, all delivered in the author’s spirited, incisive style.

Solving the Internet Jurisdiction Puzzle

Svantesson, Dan Jerker B.
K564 .C6 S88 2017


Internet jurisdiction has emerged as one of the greatest and most urgent challenges online; affecting areas as diverse as e-commerce, data privacy, law enforcement, content take-downs, cloud computing, e-health, cyber security, intellectual property, freedom of speech, and cyberwar.

In this innovative book, Professor Svantesson presents a vision for a new approach to Internet jurisdiction based on an extensive period of research dedicated to the topic.

The book demonstrates that our current paradigm remains attached to territorial thinking that is out of sync with our modern world, especially, but not only, online. Having made the claim that our adherence to the territoriality principle is based more on habit rather than on any clear and universally accepted legal principles, Professor Svantesson advances a new jurisprudential framework for how we approach jurisdiction – a framework that unites private, and public, international law. He also proposes several other reform initiatives aimed at equipping us to solve the Internet jurisdiction puzzle. In addition, the book provides a history of Internet jurisdiction, and challenges our traditional categorisation of different types of jurisdiction. It places Internet jurisdiction in a broader context and outlines methods for how to properly understand and work with rules of Internet jurisdiction.

While Solving the Internet Jurisdiction Puzzle paints a clear picture of the concerns involved and the problems that needs to be overcome, this book is distinctly aimed at finding practical solutions anchored in a solid theoretical framework.

Professor Svantesson argues that many of the Internet jurisdiction problems we face are due to a sleepwalking-like acceptance of orthodox thinking. Solving the Internet Jurisdiction Puzzle acts as a wake-up call to this issue.

You Don’t Own Me: How Mattel v. MGA Entertainment Exposed Barbie’s Dark Side

Lobel, Orly
KF228 .M485 L63 2018


Are your ideas your own or does your employer own them? This is the question that set off the greatest toy war of our time.

When Carter Bryant began designing what would become the billion-dollar line of Bratz dolls, he was taking time off from his job at Mattel, where he designed outfits for Barbie. Later, back at Mattel, he sold his concept for Bratz to rival company MGA. Law professor Orly Lobel reveals the colorful story behind the ensuing decade-long court battle.

This entertaining and provocative work pits audacious MGA against behemoth Mattel, shows how an idea turns into a product, and explores the two different versions of womanhood, represented by traditional all-American Barbie and her defiant, anti-establishment rival–the only doll to come close to outselling her. In an era when workers may be asked to sign contracts granting their employers the rights to and income resulting from their ideas–whether conceived during work hours or on their own time–Lobel’s deeply researched story is a riveting and thought-provoking contribution to the contentious debate over creativity and intellectual property.

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This entry was posted on March 21, 2018 by in Announcements.

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