Legal Theory Blog

Legal Theory Bookworm

The Legal Theory Bookworm recommends Law and the Long War: The Future of Justice in the Age of Terror by Benjamin Wittes. Here is a description:

Six years after the September 11 attacks, America is losing a crucial front in the ongoing war on terror. It is losing not to Al Qaeda but to its own failure to construct a set of laws that will protect the American people—its military and executive branch, as well as its citizens—in the midst of a conflict unlike any it has faced in the past. Now, in the twilight of President Bush’s administration, Brookings Institution fellow Benjamin Wittes offers a vigorous analysis of the troubling legal legacy of the Bush administration as well as that of the U.S. Congress and the Supreme Court. Law and the Long War tells as no book has before the story of how America came to its current impasse in the debate over liberty, human rights, and counterterrorism and draws a road map for how the country and the next president might move forward.

Moving beyond the stale debate between those fixated on the executive branch as the key architect of counterterrorism policy and those who see the judiciary as the essential guarantor of liberty against governmental abuses, Wittes argues that the essential problem is that the Bush administration did not seek—and Congress did not write—new laws to authorize and regulate the tough presidential actions this war would require. In a line of argument that is sure to spark controversy, Wittes reveals an administration whose most significant failure was not that it was too aggressive in the substance of its action, but rather that it tried to shoulder the burden of aggressiveness on its own without seeking the support of other branches of government. Using startling new empirical research on the detainee population at Guantánamo Bay, Wittes avers that many of the administration’s actions were far more defensible than its many critics believed and actually warranted congressional support. Yet by resisting both congressional and judicial involvement in its controversial decisions, the executive branch ironically prevented both of those branches from sharing in the political accountability for necessary actions that challenged traditional American notions of due process and humane treatment.

Boldly offering a new way forward, Wittes concludes that the path toward fairer, more accountable rules for a conflict without end lies in the development of new bodies of law covering detention, interrogation, trial, and surveillance. Sure to discomfort and ignite debate, Law and the Long War is the first nonideological argument about a controversial issue of vital importance to all Americans.

And from the L.A. Times review:

"Law and the Long War" addresses an impressively broad range of questions, but its greatest shortcoming is Wittes' failure to fully and fairly plumb whether U.S. criminal law already offers the best possible solutions to the problems he raises. As Georgetown University law professor David Cole notes in a recent essay in the New York Review of Books, Britain has successfully prosecuted all manner of jihadist conspiracy plots through its criminal courts, with numerous groups of defendants sentenced to long prison terms. Cole suggests that the British approach has been informed first and foremost by long and bloody experience -- 1,800 deaths and 20,000 injuries -- with repeated terrorist attacks by the Irish Republican Army in decades past. Today, Britain's multicultural population offers vastly more candidates for terrorist recruiters than does the United States, but at present the only debate there is over the maximum length of detention before a suspect must be formally charged, in stark contrast to the U.S. legal morass that Wittes hopes to resolve.

Book Announcement:

Living Speech
Resisting the Empire of Force
James Boyd White

To read the entire book description or a sample chapter, please visit: http://press.princeton.edu/ titles/8322.html

Language is our key to imagining the world, others, and ourselves. Yet sometimes our ways of talking dehumanize others and trivialize human experience. In war other people are imagined as enemies to be killed. The language of race objectifies those it touches, and propaganda disables democracy. Advertising reduces us to consumers, and clichés destroy the life of the imagination.

How are we to assert our humanity and that of others against the forces in the culture and in our own minds that would deny it? What kind of speech should the First Amendment protect? How should judges and justices themselves speak? These questions animate James Boyd White's Living Speech, a profound examination of the ethics of human expression--in the law and in the rest of life.

"In Living Speech, White is rooted in his own proper study of the law, but he 'blurs' his work over in many directions, notably to classical drama, poetry, and philosophy, even with indirect traces and hints of theology. The effect is to summon readers--especially, but by no means exclusively, students of law--beyond the conventional limits and procedures of their discipline. . . . His book is an exercise in the humanities of a wise and urgent kind."--Walter Brueggeman, Michigan Law Review

Paper | $24.95 / £14.95 | ISBN: 978-0-691-13837-4
Cloth  | $29.95 / £17.95 | ISBN: 978-0-691-12580-0

Legal Theory Bookworm

The Legal Theory Bookworm recommends Beyond Citizenship: American Identity After Globalization by Peter J. Spiro.  Here is a description:

American identity has always been capacious as a concept but narrow in its application. Citizenship has mostly been about being here, either through birth or residence. The territorial premises for citizenship have worked to resolve the peculiar challenges of American identity. But globalization is detaching identity from location. What used to define American was rooted in American space. Now one can be anywhere and be an American, politically or culturally. Against that backdrop, it becomes difficult to draw the boundaries of human community in a meaningful way. Longstanding notions of democratic citizenship are becoming obsolete, even as we cling to them. Beyond Citizenship charts the trajectory of American citizenship and shows how American identity is unsustainable in the face of globalization.

Peter J. Spiro describes how citizenship law once reflected and shaped the American national character. Spiro explores the histories of birthright citizenship, naturalization, dual citizenship, and how those legal regimes helped reinforce an otherwise fragile national identity. But on a shifting global landscape, citizenship status has become increasingly divorced from any sense of actual community on the ground. As the bonds of citizenship dissipate, membership in the nation-state becomes less meaningful. The rights and obligations distinctive to citizenship are now trivial. Naturalization requirements have been relaxed, dual citizenship embraced, and territorial birthright citizenship entrenched--developments that are all irreversible. Loyalties, meanwhile, are moving to transnational communities defined in many different ways: by race, ethnicity, gender, religion, age, and sexual orientation. These communities, Spiro boldly argues, are replacing bonds that once connected people to the nation-state, with profound implications for the future of governance.

Learned, incisive, and sweeping in scope, Beyond Citizenship offers a provocative look at how globalization is changing the very definition of who we are and where we belong.

And from the reviews:

"This is a major contribution to the issue of political membership in our unsettled world. Its distinctiveness is a mix of precision and the shattering of traditional conceptual boundaries, which allows Spiro to open up new analytical terrain in a subject more often developed through the language of aspirations."--Saskia Sassen, author of Territory, Authority, Rights and Helen and Robert Lynd Professor of Sociology, Columbia University

"In this lucid, engaging, and highly accessible book, Peter Spiro traces the erosion of the legal foundations of American citizenship and shows why the foundations cannot be repaired. Spiro argues that it is no longer possible to sustain a distinctive American identity. This book poses an important challenge to anyone seeking to view American social and political life through the lens of citizenship."--Joseph H. Carens, author of Culture, Citizenship, and Community and Professor of Political Science, University of Toronto

"A lively and accessible investigation of how the law and practice of citizenship are being transformed by globalization. Professor Spiro fearlessly explores the ultimate consequences of current trends and arguments. His vision of a future multiplicity of partial citizenships raises serious challenges for democratic politics. Spiro's account is provocative throughout and provides rich food for thought."--Gerald Neuman, author of Strangers to the Constitution and J. Sinclair Armstrong Professor of International, Foreign, and Comparative Law, Harvard Law School

"In Beyond Citizenship, one of our best and most provocative scholars demonstrates with skill, erudition, and an engaging style accessible to all how globalization's tectonic forces are eroding the coherence of American citizenship, the supposed bedrock of our national identity. With this much-needed book, our debate on this vital subject will never be the same."--Peter H. Schuck, author of Citizenship Without Consent and Citizens, Strangers, and In-Betweens and Simeon E. Baldwin Professor, Yale Law School

Legal Theory Bookworm

The Legal Theory Bookworm recommends Borrowing Constitutional Designs: Constitutional Law in Weimar Germany and the French Fifth Republic by Cindy Skach.  Here is the abstract:

After the collapse of communism, some thirty countries scrambled to craft democratic constitutions. Surprisingly, the constitutional model they most often chose was neither the pure parliamentary model found in most of Western Europe at the time, nor the presidential model of the Americas. Rather, it was semi-presidentialism--a rare model known more generally as the "French type." This constitutional model melded elements of pure presidentialism with those of pure parliamentarism. Specifically, semi-presidentialism combined a popularly elected head of state with a head of government responsible to a legislature.

Borrowing Constitutional Designs questions the hasty adoption of semi-presidentialism by new democracies. Drawing on rich case studies of two of the most important countries for European politics in the twentieth century--Weimar Germany and the French Fifth Republic--Cindy Skach offers the first theoretically focused, and historically grounded, analysis of semi-presidentialism and democracy. She demonstrates that constitutional choice matters, because under certain conditions, semi-presidentialism structures incentives that make democratic consolidation difficult or that actually contribute to democratic collapse. She offers a new theory of constitutional design, integrating insights from law and the social sciences. In doing so, Skach challenges both democratic theory and democratic practice. This book will be welcomed not only by scholars and practitioners of constitutional law but also by those in fields such as comparative politics, European politics and history, and international and public affairs.

And from the reviews and blurbs:

"Cindy Skach has produced a compelling and important book. Combining theoretical discussion with sustained historical analysis, Borrowing Constitutional Designs is a well-written and -executed example of the 'new institutionalism' that seems to have swept across the social sciences in recent years."--Amalia D. Kessler, Law and Politics Book Review

"Cindy Skach's book on Weimar Germany and the French Fifth Republic is a treasure trove of insights not only about the politics of these two countries, but also about the more general significance of constitutional design for the effective functioning of a political system. It brings to the fore the particular political system of 'semi-presidentialism' and offers cautionary analyses for those tempted to believe that it is the perfect 'third way' between parliamentarianism and presidentialism. It deserves wide readership among historians, political scientists, and legal academics."--Sanford Levinson, University of Texas Law School and Department of Government

"In Borrowing Constitutional Designs, Cindy Skach has crafted a very important book--one that could well become the defining interpretation of France's Fifth Republic in particular and of semi-presidentialism more generally. It will redefine how scholars and policymakers understand the operation of semi-presidential political systems. As Skach demonstrates, semi-presidentialism takes different forms, depending on the electoral context."--Jonah Levy, University of California, Berkeley, author of Tocqueville's Revenge

"Borrowing Constitutional Designs provides a skeptical new look at the French model of presidential government that is very influential throughout the world today. In placing it against the background of the Weimar experience with a similar form of government, this book makes a substantial contribution to our constitutional understanding."--Bruce Ackerman, Sterling Professor of Law and Political Science, Yale University

Legal Theory Bookworm

The Legal Theory Bookworm recommends Religion and the Constitution: Volume 2: Establishment and Fairness by Kent Greenawalt. Here is a description:

Balancing respect for religious conviction and the values of liberal democracy is a daunting challenge for judges and lawmakers, particularly when religious groups seek exemption from laws that govern others. Should students in public schools be allowed to organize devotional Bible readings and prayers on school property? Does reciting "under God" in the Pledge of Allegiance establish a preferred religion? What does the Constitution have to say about displays of religious symbols and messages on public property? Religion and the Constitution presents a new framework for addressing these and other controversial questions that involve competing demands of fairness, liberty, and constitutional validity.

In this second of two major volumes on the intersection of constitutional and religious issues in the United States, Kent Greenawalt focuses on the Constitution's Establishment Clause, which forbids government from favoring one religion over another, or religion over secularism. The author begins with a history of the clause, its underlying principles, and the Supreme Court's main decisions on establishment, and proceeds to consider specific controversies. Taking a contextual approach, Greenawalt argues that the state's treatment of religion cannot be reduced to a single formula.

Calling throughout for acknowledgment of the way religion gives meaning to people's lives, Religion and the Constitution aims to accommodate the maximum expression of religious conviction that is consistent with a commitment to fairness and the public welfare.

Legal Theory Bookworm

The Legal Theory Bookworm recommends The Limits of Loyalty by Simon Keller.  Here is a description:

We prize loyalty in our friends, lovers and colleagues, but loyalty raises difficult questions. What is the point of loyalty? Should we be loyal to country, just as we are loyal to friends and family? Can the requirements of loyalty conflict with the requirements of morality? In this book Simon Keller explores the varieties of loyalty and their psychological and ethical differences, and concludes that loyalty is an essential but fallible part of human life. He argues that grown children can be obliged to be loyal to their parents, that good friendship can sometimes conflict with moral and epistemic standards, and that patriotism is intimately linked with certain dangers and delusions. He goes on to build an approach to the ethics of loyalty that differs from standard communitarian and universalist accounts. His book will interest a wide range of readers in ethics and political philosophy.

And from the reviews:

"Loyalty is at once a non-negotiable value and the root of much suffering. Coming to terms with this duality, Simon Keller argues in his timely and important. The Limits of Loyalty, requires that we recognize not one kind of loyalty, but a diversity of loyalties, some of which merit our allegiance, and some not. The result of this compelling reconsideration is a subtle and shrewd work of philosophical moral psychology, which will not only provoke unsettling reflection on the most vexing and indispensable of human relations - lovers, friends, family, and country - but also revivify central debates in philosophical ethics and political theory. It deserves to be widely resonant." --John M. Doris, Philosophy-Neuroscience-Psychology Program, Philosophy Department, Washington University, St. Louis

"The Limits of Loyalty is a refreshingly original, cogently argued and lucid work. It is first-rate, important and readable philosophy." --David Lyons, Boston University

"Simon Keller's The Limits of Loyalty is a bold and careful, dramatic and soundly argued examination of loyalty, its obligations, its psychology and its impact on morality. Keller argues that personal loyalty and political patriotism cannot be considered unqualified virtues. Because their partiality is susceptible to dangerous moral blindness, their exercise needs to be defended and justified by larger and more encompassing moral considerations. This important book raises fundamental questions in moral theory; it addresses them clearly, with a wealth of convincing examples."--Amelie Rorty, Harvard University

"Fascinating - a clear-sighted and often surprising philosophical exploration of loyalty in our lives as parents or friends, lovers or patriots. With a calm and dryly humorous eye, Keller weighs up the complexities, both moral and epistemological, of commitments that are too readily taken for granted."--Rae Langton, MIT

Legal Theory Bookworm

The Legal Theory Bookworm recommends Demystifying Legal Reasoning by Larry Alexander & Emily Sherwin.  Here is a description:

Demystifying Legal Reasoning defends the proposition that there are no special forms of reasoning peculiar to law. Legal decision makers engage in the same modes of reasoning that all actors use in deciding what to do: open-ended moral reasoning, empirical reasoning, and deduction from authoritative rules. This book addresses common law reasoning when prior judicial decisions determine the law, and interpretation of texts. In both areas, the popular view that legal decision makers practice special forms of reasoning is false.

Highly recommended.

Legal Theory Bookworm

The Legal Theory Bookworm recommends Exporting American Dreams: Thurgood Marshall's African Journey by Mary L. Dudziak.  Here is a description:

Thurgood Marshall became a living icon of civil rights when he argued Brown v. Board of Education before the Supreme Court in 1954. Six years later, he was at a crossroads. A rising generation of activists were making sit-ins and demonstrations rather than lawsuits the hallmark of the civil rights movement. What role, he wondered, could he now play? When in 1960 Kenyan independence leaders asked him to help write their constitution, Marshall threw himself into their cause. Here was a new arena in which law might serve as the tool with which to forge a just society.
In Exporting American Dreams , Mary Dudziak recounts with poignancy and power the untold story of Marshall's journey to Africa. African Americans were enslaved when the U.S. constitution was written. In Kenya, Marshall could become something that had not existed in his own country: a black man helping to found a nation. He became friends with Kenyan leaders Tom Mboya and Jomo Kenyatta, serving as advisor to the Kenyans, who needed to demonstrate to Great Britain and to the world that they would treat minority races (whites and Asians) fairly once Africans took power. He crafted a bill of rights, aiding constitutional negotiations that helped enable peaceful regime change, rather than violent resistance.

Marshall's involvement with Kenya's foundation affirmed his faith in law, while also forcing him to understand how the struggle for justice could be compromised by the imperatives of sovereignty. Marshall's beliefs were most sorely tested later in the decade when he became a Supreme Court Justice, even as American cities erupted in flames and civil rights progress stalled. Kenya's first attempt at democracy faltered, but Marshall's African journey remained a cherished memory of a time and a place when all things seemed possible.

And from the reviews:

"Dudziak brings out with impressive clarity how Thurgood Marshall's greatness stemmed from his Whitman-esque ability to contain multitudes: committed to the rule of law, he could chide Kenya's new leadership for departing even slightly from it, work for justice in segregated America, and sustain a relationship with young civil rights activists taking direct and 'illegal' action in the early 1960s."--Mark Tushnet, Harvard Law School and author of Making Civil Rights Law: Thurgood Marshall and the Supreme Court, 1956-1961

"In this gem of a book, Mary Dudziak brings vividly to life the important but little known history of Thurgood Marshall's intense involvement with Kenya during its journey toward independence in the 1960s. This great champion of the American civil rights struggle never relinquished his hope that democracy and equality would one day flourish in Kenya, even as he became painfully aware of the obstacles that stood in the path of this dream. A powerful and poignant story, beautifully told."--Gary Gerstle, Vanderbilt University and author of American Crucible: Race and Nation in the Twentieth Century

"By dint of creative and exhaustive research, Mary Dudziak has written an excellent book about a facet of Thurgood Marshall's career that has never before received substantial attention. Who knew that 'Mr. Civil Rights' contributed significantly to African as well as American legal systems. All students of this great man's life owe a major debt to Professor Dudziak's labors."--Randall Kennedy, Harvard Law School and author of Sellout: The Politics of Racial Betrayal

Legal Theory Bookworm

The Legal Theory Bookworm recommends When Is Discrimination Wrong by Deborah Hellman.  Here is a description:

A law requires black bus passengers to sit in the back of the bus. The U.S. Food and Drug Administration approves a drug for use by black heart failure patients. A state refuses to license drivers under age 16. A company avoids hiring women between the ages of 20 and 40. We routinely draw distinctions among people on the basis of characteristics that they possess or lack. While some distinctions are benign, many are morally troubling.

In this boldly conceived book, Deborah Hellman develops a much-needed general theory of discrimination. She demonstrates that many familiar ideas about when discrimination is wrong—when it is motivated by prejudice, grounded in stereotypes, or simply departs from merit-based decision-making—won’t adequately explain our widely shared intuitions.

Hellman argues that, in the end, distinguishing among people on the basis of traits is wrong when it demeans any of the people affected. She deftly explores the question of how we determine what is in fact demeaning.

Claims of wrongful discrimination are among the most common moral claims asserted in public and private life. Yet the roots of these claims are often left unanalyzed. When Is Discrimination Wrong? explores what it means to treat people as equals and thus takes up a central problem of democracy.

And from the reviews:

Although democracy is committed to an ideal of equal treatment, we do not always agree on what that commitment requires. In this bold effort to work out when we may morally draw distinctions among people, Deborah Hellman unearths assumptions and unspoken biases that have invisibly corrupted political debates, such as those about affirmative action and the accommodation of the disabled. Cutting through misleading distinctions and false dichotomies, she gets to the heart of what equality means.--Rebecca Brown, Allen Professor of Law, Vanderbilt University

Anyone interested in the Equal Protection Clause will be interested in Hellman's fine book.

Spaak on Leiter on Naturalizing Jurisprudence

Torben Spaak (Uppsala University - Faculty of Law) has posted Book Review: Brian Leiter, Naturalizing Jurisprudence on SSRN.  Here is the abstract:

Ever since W. V. Quine published an essay entitled "Epistemology Naturalized," naturalism has been an important topic in core areas of philosophy, such as epistemology, the philosophy of language, and the philosophy of mind; and it has now, much thanks to the writings of Brian Leiter, reached jurisprudence (or legal philosophy). Accordingly, the task of gaining an understanding of the implications of a naturalist approach to the problems of jurisprudence, such as the place (in the jurisprudential landscape) and shape of empirical theories of legal reasoning, the nature of law's normativity, and the nature and viability of conceptual analysis as a central philosophical tool, is on the agenda of contemporary jurisprudence.

Leiter's new book Naturalizing Jurisprudence, a collection of essays published over the past ten years, deals with these and related issues, except the problem about the normativity of law. The first part of the book concerns the question whether the American Legal Realists ("the Realists," for short) are best understood as jurisprudential naturalists. The second part is concerned with the more general question of whether, and if so, how, jurisprudence should be naturalized. And the third part treats questions concerning naturalism, morality, and objectivity. Leiter's central aims, in keeping with this tripartite division of the book, are (i) to offer a reconstructive interpretation of the Realists as prescient naturalists; (ii) to make the case for a naturalized jurisprudence more generally; and (iii) to locate legal and moral norms in a world understood naturalistically.

Leiter's book is a well-written and substantial contribution to the field of jurisprudence, and I warmly recommend it to anyone with an interest in contemporary jurisprudence, or in the implications of a naturalist approach to philosophy. Leiter's ability to chart the implications of a naturalist research program in jurisprudence, and to pinpoint the weak spots in the writings of other philosophers in the process, together with the clarity of his reasoning, is impressive. But in spite of my appreciation of Leiter's book, I argue in this review (i) that Leiter is too generous in his reconstructive interpretation of the Realists, and point out that, from the standpoint of a naturalized jurisprudence, Scandinavian Legal Realists such as Alf Ross, and Karl Olivecrona are actually more interesting than the (American) Realists. In doing that, I focus on Leiter's account of different types of naturalism and their relation to one another, and the precise sense in which the Realists are said by Leiter to have naturalized jurisprudence. I also argue (ii) that Leiter's case for a naturalized jurisprudence cannot be accepted as it stands, because it includes exaggerated and quite implausible claims about conceptual analysis, viz. that it is a doomed enterprise because it is always vulnerable to the demands of empirical theories, and that instead of analyzing legal concepts jurisprudents should adopt the legal concepts that figure in successful empirical theories of law and legal institutions in (roughly) the shape they have there. I have very few objections to Leiter's analysis in the third part of the book, which I find interesting, illuminating, and quite persuasive.

I've added a link to Leiter's book.  I'm not as confident as the author about the value of the Scandinavian Realists, but share the view that Leiter is generous (or very selective) in his reconstruction of the American Realists.  An informative review, but my advice is to read the book itself.