Legal Theory Blog

Legal Theory Bookworm: "America before 1787" by Elster

The Legal Theory Bookworm recommends America before 1787: The Unraveling of a Colonial Regime by Jon Elster.  Here is a description:

An original account, drawing on both history and social science, of the causes and consequences of the American Revolution

With America before 1787, Jon Elster offers the second volume of a projected trilogy that examines the emergence of constitutional politics in France and America. Here, he explores the increasingly uneasy relations between Britain and its American colonies and the social movements through which the thirteen colonies overcame their seemingly deep internal antagonisms.

Elster documents the importance of the radical uncertainty about their opponents that characterized both British and American elites and reveals the often neglected force of enthusiasm, and of emotions more generally, in shaping beliefs and in motivating actions. He provides the first detailed examinations of “divide and rule” as a strategy used on both sides of the Atlantic and of the rise and fall of collective action movements among the Americans. Elster also explains how the gradual undermining in America of the British imperial system took its toll on transatlantic relations and describes how state governments and the American Confederation made crucial institutional decisions that informed and constrained the making of the Constitution.

Drawing on a wide range of historical sources and on theories of modern social science, Elster brings together two fields of scholarship in innovative and original ways. The result is a unique synthesis that yields new insights into some of the most important events in modern history.

And from the reviews:

"Amazing, sensational, brilliant, wise."---Cass Sunstein

“This book is a bold and original piece of research, and an intriguing interdisciplinary investigation. Elster is one of the foremost thinkers of his generation, renowned as a cogent analyst of social ‘mechanisms’ as well as a fierce critic of occult claims in the social sciences. Bringing these skills and aptitudes to historical material, he offers a fresh contribution to the study of the past in general as well as of the American revolutionary period specifically. This is a work of acute intelligence and brilliant insight, and should be welcomed by historians, social scientists, and political theorists alike.”―Richard Bourke, University of Cambridge

The first book in the trilogy is France before 1789: The Unraveling of an Absolutist Regime.

Legal Theory Bookworm: "Feminist Theory and International Law" by Jones

The Legal Theory Bookworm recommends Feminist Theory and International Law by Emily Jones.  Here is a description:

Feminist approaches to international law have been mischaracterised by the mainstream of the discipline as being a niche field that pertains only to women’s lived experiences and their participation in decision-making processes. Exemplifying how feminist approaches can be used to analyse all areas of international law, this book applies posthuman feminist theory to examine the regulation of new and emerging military technologies, international environmental law and the conceptualisation of the sovereign state and other modes of legal personality in international law.

Noting that most posthuman scholarship to date is primarily theoretical, this book also contributes to the field of posthumanism through its application of posthuman feminism to international law, working to bridge the theory and practice divide by using posthuman feminism to design and call for legal change. This interdisciplinary book draws on an array of fields, including philosophy, queer and feminist theories, postcolonial and critical race theories, computer science, critical disability studies, science and technology studies, marine biology, cultural and media studies, Indigenous onto-epistemologies, critical legal theory, political science and beyond to provide a holistic analysis of international law and its inclusions and exclusions.

This interdisciplinary book will appeal to students and scholars with interests in legal, feminist and posthuman theory, as well as those concerned with the contemporary challenges faced by international law.

Legal Theory Bookworm: "Hart, Fuller, and Everything After" by Hutchinson

The Legal Theory Bookworm recommends Hart, Fuller, and Everything After: The Politics of Legal Theory by Allan C Hutchinson.  Here is a description:

More has been said about the Hart-Fuller debate than can be considered healthy or productive even within the precious world of jurisprudential scholarship – too much philosophising about how law has revelled in its own abstractness and narrowness. But the mission of this book is distinctly and determinedly different – it is not to rework these already-rehashed ideas, but to reject them entirely.

Rather than add to the massive jurisprudential literature that has been generated by all and sundry, the book criticises and abandons the project that Hart and Fuller set in motion. It contends that the turn that was taken in 1957 has led down a series of cul-de-sacs, blind alleys, and dead-ends to nowhere useful or illuminating. It is more than past time to leave their debate behind and strike out in an entirely new and more promising direction. The book insists that not only law, but also all theorising about law, is political in all its derivations, dimensions, and directions.

Legal Theory Bookworm: "Essentially a Mother" by Hendricks

The Legal Theory Bookworm recommends Essentially a Mother: A Feminist Approach to the Law of Pregnancy and Motherhood by Jennifer Hendricks.  Here is a description:

Essentially a Mother argues that the law of pregnancy and motherhood has been overrun by sexist ideology. Courts have held that a pregnant woman’s nine months of gestation hardly count in her claim to parent the child she bears and that a man’s brief moment of ejaculation matters more than a woman’s labor. Armed with such dubious arguments, courts have stripped women of the right to abortion, treated surrogate mothers as mere vessels, and handed biological fathers—even those who became fathers through rape—automatic rights over women and their children. In this incisive and groundbreaking book, Jennifer Hendricks argues that feminists must overthrow the skewed value system that subordinates women, devalues caregiving, and denies too many the right to parent.

And from the reviews:

"A powerful, important book bringing together decades of legal rulings on parenthood—creating a clear and forceful argument about parental rights at birth with full recognition of pregnancy as a parental relationship."—Barbara Katz Rothman, author of The Biomedical Empire: Lessons Learned from the Covid-19 Pandemic

"Essentially a Mother gives us a detailed history of the demise of the centrality of gestation and birth to the law of parenthood. While 'biology plus relationship' was once a necessary condition of parenthood, the law has shifted over the past three decades toward a position of genetic supremacy: the genetic tie trumps all. Grounded in relational feminism and the author’s commitment to human flourishing, this generous and brilliant book gracefully traces the impact of this momentous shift in what the law values and why. In the process, Jennifer Hendricks challenges the legal norms we’ve adopted to govern our most intimate conflicts and charts a new path forward."—Robin West, Frederick J. Haas Professor of Law and Philosophy Emeritus, Georgetown University Law Center

"Through analysis that is both piercing and profound, Essentially a Mother explores how law understands reproduction, parentage, and gender equality. Hendricks weaves original insights about notable court cases into a seamless challenge to longstanding assumptions about what is natural, what is artificial, and what role legal regulation should play."—Susan Frelich Appleton, Lemma Barkeloo & Phoebe Couzins Professor of Law, Washington University School of Law

"This superb analysis of what makes—or should make—someone a legal parent roundly criticizes the increasing tendency to ground parental status in 'genetic essentialism' at the expense of actual caregiving, especially pregnancy and childbirth. Hendricks’ clear accounts of the claims of genetic and non-genetic parents are a major contribution to relational feminism and indispensable reading for experts and general readers alike who seek to protect and sustain relationships among children and those who care for them."—Mary Lyndon Shanley, Professor Emerita of Political Science, Vassar College

"Essentially a Mother reclaims–and redefines–motherhood for the modern era. Responding to the decades-long recasting of family roles in gender neutral terms, Hendricks reexamines the role of gestation and nurture as the core of motherhood and of what should be the central element in the legal protection of parenthood. She shows across topics as varied as rape, surrogacy, and embryo mix-ups how genetics has replaced functional parenthood in securing legal protection and creates a roadmap for righting the legal balance in ways that reflect the realities of modern families. This book sets the agenda for the next generation of family law reform."—June Carbone, author of Marriage Markets: How Inequality is Remaking the American Family

"Hendricks grapples with many of the thorniest issues surrounding contemporary sex equality law, pregnancy, and parenting. She does so in an eminently readable prose that treats all arguments with rigor and compassion."—Katharine Baker, University Distinguished Professor of Law, Chicago-Kent College of Law

"Essentially a Mother weaves together stories, policies, and court cases to explore legal approaches to parental rights and pregnancy, covering everything from contemporary disputes over fertility mix-ups and surrogacy to the Supreme Court's groundbreaking decisions from 50 years ago. Guided by relational feminism, Hendricks has written a highly accessible book that gives readers compelling insight into the relationships at the core of our families."—Naomi Cahn, coauthor of Fair Shake: Women and the Fight to Build a Just Economy

Legal Theory Bookworm: "In a Bad State" by Schleicher

The Legal Theory Bookworm recommends In a Bad State: Responding to State and Local Budget Crises by David Schleicher.  Here is a description:

An authoritative review of the long history of federal responses to state and local budget crises, from Alexander Hamilton through the COVID-19 pandemic, that reveals what is at stake when a state or city can't pay its debts and provides policy solutions to an intractable American problem.

What should the federal government do if a state like Illinois or a city like Chicago can't pay its debts? From Alexander Hamilton's plan to assume state debts to Congress's efforts to respond to the COVID-19 pandemic, many of the most important political disputes in American history have involved federal government responses to state or local fiscal crises.

In a Bad State provides the first comprehensive historical and theoretical analysis of how the federal government has addressed subnational debt crises. Tracing the long history of state and local borrowing, David Schleicher argues that federal officials want to achieve three things when a state or city nears default: prevent macroeconomic distress, encourage lending to states and cities to build infrastructure, and avoid creating incentives for reckless future state budgeting. But whether they demand state austerity, permit state defaults, or provide bailouts-and all have been tried-federal officials can only achieve two of these three goals, at best. Rather than imagining that there is a single easy federal solution, Schleicher suggests some ways the federal government could ameliorate the problem by conditioning federal aid on future state fiscal responsibility, spreading losses across governments and interests, and building resilience against crises into federal spending and tax
policy.

Authoritative and accessible, In a Bad State offers a guide to understanding the pressing fiscal problems that local, state, and federal officials face, and to the policy options they possess for responding to crises.

And from the reviews:

"Faced with mounting Medicaid costs, footloose taxpayers, powerful public employees, and a nationalized political climate that rewards ideological grandstanding over basic competence, America's state governments have become fiscal basket cases. Confident that they'll be bailed out by the federal government at the first sign of economic distress, elected officials in state after state are choosing budget gimmickry over spending discipline, reaping political dividends all the while. But what happens when the bailout doesn't materialize, or isn't quite as generous as expected? Drawing on the history of federal responses to state fiscal disasters from the 1790s to the Covid pandemic, David Schleicher's In a Bad State offers a brilliant and engaging exposition of exactly why these fiscal reckonings have proven so painful in the past, and why the inevitable next one will be no exception." -- Reihan Salam, Manhattan Institute

"David Schleicher, the leading lawyer on state and city governments, has written an extraordinary book that describes with incredible clarity the complexity of the fiscal decisions that lie ahead for cities and states. It is well worth reading." -- Richard Ravitch, Former Lt. Governor of New York and Chairman of the Metropolitan Transit Authority

"David Schleicher, one of the most brilliant and far-ranging political thinkers of his generation, here takes on a very specific question: How federal governments should respond when state and local governments default. Schleicher's timely insight is that overspending is inextricable from the question of growth, and In a Bad State's deft history channels all the ways in which federalism has complicated and shaped the efforts to build a bigger and more modern country. The pragmatic question with which this gem-like policy book begins opens into a literary one: Of how existing legal and policy regimes might be bent in order to account for the future." -- Benjamin Wallace-Wells, The New Yorker

Legal Theory Bookworm: "The Shadow Docket" by Vladeck

The Legal Theory Bookworm recommends The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic by Stephen Vladeck.  Here is a description:

The Supreme Court has always had the authority to issue emergency rulings in exceptional circumstances. But since 2017, the Court has dramatically expanded its use of the behind-the-scenes “shadow docket,” regularly making decisions that affect millions of Americans without public hearings and without explanation, through cryptic late-night rulings that leave lawyers—and citizens—scrambling. 

The Court’s conservative majority has used the shadow docket to green-light restrictive voting laws and bans on abortion, and to curtail immigration and COVID vaccine mandates. But Americans of all political stripes should be worried about what the shadow docket portends for the rule of law, argues Supreme Court expert Stephen Vladeck. In this rigorous yet accessible book, he issues an urgent call to bring the Court back into the light. 

And from the reviews:

“an expert study…. This insightful and accessible account raises an important alarm.”
 ―Publishers Weekly

“In The Shadow Docket, Steve Vladeck tells an urgent story about an arcane aspect of American law that has momentous implications for a host of pressing political issues—and for the institutional legitimacy of the Supreme Court itself. In elegant, accessible prose, Vladeck exposes the degree to which significant battles, from abortion to immigration, are being adjudicated behind closed doors, in unseen, unsigned, unexplained decisions. This is a powerful work of argument and explication, and a call for a return to transparency and accountability in the decision making of our highest court.”
 ―Patrick Radden Keefe, author of Empire of Pain

"The Supreme Court's polling numbers and legitimacy have taken a nosedive in recent years, but the cases it hands down are only part of the problem. The stuff that happens in the shadows is equally alarming, and nobody has been better at explaining these shadow matters than Steve Vladeck. Tackling intricate procedural questions, Vladeck makes absolutely plain that — to repurpose an old adage — procedure isn't just the handmaid of justice, it's now her lord and master. We ignore what happens in the shadows at our peril."―Dahlia Lithwick, author of Lady Justice

“Stephen Vladeck shines a harsh light on a little-understood SCOTUS sleight of hand — the shadow docket. Vladeck describes in clear and convincing language how the highest court in the land has increasingly used obscure procedural orders to shift the legal landscape to the right, at the expense of transparency, precedent, and fundamental rights. It is vital reading.”―Preet Bharara, former U.S. Attorney for the Southern District of New York

"Steve Vladeck uses his intimate knowledge of the Supreme Court to show how the conservative justices are manipulating the court's docket to maximize their power and achieve their desired outcomes. The Shadow Docket is essential reading for anyone who wants to understand how today's court really works."―Linda Greenhouse, author of Justice On the Brink

“The best thing you can say about a Supreme Court book is that you learned something, and I learned a ton. Vladeck cogently describes the perhaps well-meant but insidious way that the Supreme Court, in liberal as well as conservative times, slowly eroded the legal levers that prevented the Court from engineering its own agenda.”―Nina Totenberg, award-winning legal affairs correspondent, NPR

Legal Theory Bookworm: "After Misogyny" by Suk

The Legal Theory Democracy is After Misogyny: How the Law Fails Women and What to Do about It by Julie C. Suk.  Here is a description:

A rigorous analysis of systemic misogyny in the law and a thoughtful exploration of the tools needed to transcend it through constitutional change beyond litigation in the courts.
 
Just as racism is embedded in the legal system, so is misogyny—even after the law proclaims gender equality and criminally punishes violence against women. In After Misogyny, Julie C. Suk shows that misogyny lies not in animus but in the overempowerment of men and the overentitlement of society to women's unpaid labor and undervalued contributions. This is a book about misogyny without misogynists.
 
From antidiscrimination law to abortion bans, the law fails women by keeping society's dependence on women's sacrifices invisible. Via a tour of constitutional change around the world, After Misogyny shows how to remake constitutional democracy. Women across the globe are going beyond the antidiscrimination paradigm of American legal feminism and fundamentally resetting baseline norms and entitlements. That process, what Suk calls a "constitutionalism of care," builds the public infrastructure that women's reproductive work has long made possible for free.

And from the reviews:

"In this intriguing scholarly treatise, Fordham University law professor Suk (We the Women) documents how the law protects men’s 'overentitlement' and 'overempowerment' and examines efforts to correct the problem through constitutional reform. . . . a well-informed and actionable diagnosis of one of society’s most persistent ills"―Publishers Weekly

 

"Julie Suk has provided an insightful analysis, built from her impressive fluency in US and European law, of how the law has overendowed and overempowered men at the expense of women's equality. Suk's proposals illuminate ways forward to limit the repercussions of centuries of law's unjust and inequitable effect on women."—Judith Resnik, Arthur Liman Professor of Law, Yale Law School

"In this powerful and provocative new book, Suk argues that misogyny is not simply a hatred of women, but rather a structural condition—and that the law has a role to play in dismantling it. A must-read for all who hope to see a world defined by parity rather than patriarchy."—Rosalind Dixon, coauthor of Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy

"After Misogyny is a powerful and timely intervention, an urgent call to see anew the hidden workings of misogyny along with the law's central role in sustaining it. In the wake of a pandemic, the #MeToo movement, and unprecedented assaults on reproductive rights, women's unequal status in society has become ever more visible. Suk's eye-opening account of the manifestations of misogyny explains these developments. At the same time, she convincingly insists there's hope. Drawing on her vast expertise in worldwide feminist constitutional change, Suk reimagines the transformation of our own legal system. Her road map is smart, creative, and filled with promise."—Deborah Tuerkheimer, author of Credible: Why We Doubt Accusers and Protect Abusers

"After Misogyny will completely transform how we think about gender equality. Suk convincingly draws a distinction between patriarchy and misogyny. She provides a sweeping and compelling explanation of the law's role in gender-based violence, women's invisibility, and women's subjugation in the absence of patriarchy. She explains why men continue to cling to misogyny even after some of them have let go of patriarchy, and she thoughtfully argues how society benefits from the subjugation of women. Importantly, Suk also identifies a number of structural and institutional reforms that can address the rule of misogyny. After Misogyny confirms Suk's reputation as a leading comparativist, constitutional law scholar, and feminist theorist. This book belongs on the shelf of everyone who cares about women's equality."—Guy-Uriel Charles, Charles J. Ogletree Jr. Professor of Law and Director of the Charles Hamilton Institute for Race and Justice, Harvard Law School

Legal Theory Bookworm: "Democracy, Religion, and Commerce," edited by Flake & Oman

The Legal Theory Bookworm recommends Democracy, Religion, and Commerce, edited by Kathleen Flake & Nathan B. Oman.  Here is a description:

This collection considers the relationship between religion, state, and market. In so doing, it also illustrates that the market is a powerful site for the cultural work of secularizing religious conflict. Though expressed as a simile, with religious freedom functioning like market freedom, “free market religion” has achieved the status of general knowledge about the nature of religion as either good or bad. It legislates good religion as that which operates according to free market principles: it is private, with no formal relationship to government; and personal: a matter of belief and conscience. As naturalized elements of historically contingent and discursively maintained beliefs about religion, these criteria have ethical and regulatory force. Thus, in culture and law, the effect of the metaphor has become instrumental, not merely descriptive. This volume seeks to productively complicate and invite further analysis of this easy conflation of democracy, religion, and the market. It invites scholars from a variety of disciplines to consider more intentionally the extent to which markets are implicated and illuminate the place of religion in public life. The book will be a valuable resource for researchers and academics working in the areas of law and religion, ethics, and economics.

Legal Theory Bookworm: "Constitutional Public Reason" by Sadurski

The Legal Theory Bookworm recommends Constitutional Public Reason by Wojciech Sadurski.  Here is a description:

Public reason, which urges that only laws based on principles reasonably agreeable to all those bound by them are legitimate, has rarely been applied to constitutional law, and never in a comparative way. This book aspires to fill that gap, by studying the use of public reason in different constitutional systems. In doing so, it studies public reason both as a normative idea - as a principle postulated for democratic constitutionalism, and as a descriptive account - as helping to understand many important doctrines in constitutional adjudication of some leading constitutional courts around the world, and also in the supranational sphere.

Constitutional Public Reason questions the performance of leading 'exemplars of public reasons', including the top courts of the United States, India, Canada, Australia, Germany, and South Africa, as well as the European Court of Human Rights. It also attempts to show how this performance can be improved in fields such as freedom of expression, non-establishment of religion, and anti-discrimination law. Ultimately, it finds that the best resonance between the ideal of public reason and constitutional interpretation is found in doctrines that locate the illegitimacy of laws in the wrongful motives (or purposes) pursued by legislators. Scrutinising motives is often as important as scrutinising consequences.

Legal Theory Bookworm: "Twilight of the American State by Schlag

The Legal Theory Bookworm recommends Twilight of the American State: An Essay by Pierre Schlag.  Here is the a description:

The sudden emergence of the Trump nation surprised nearly everyone, including journalists, pundits, political consultants, and academics. When Trump won in 2016, his ascendancy was widely viewed as a fluke. Yet time showed it was instead the rise of a movement—angry, militant, revanchist, and unabashedly authoritarian.

How did this happen? Twilight of the American State offers a sweeping exploration of how law and legal institutions helped prepare the grounds for this rebellious movement. The controversial argument is that, viewed as a legal matter, the American state is not just a liberal democracy, as most Americans believe. Rather, the American state is composed of an uneasy and unstable combination of different versions of the state—liberal democratic, administered, neoliberal, and dissociative. Each of these versions arose through its own law and legal institutions. Each emerged at different times historically. Each was prompted by deficits in the prior versions. Each has survived displacement by succeeding versions. All remain active in the contemporary moment—creating the political-legal dysfunction America confronts today.

Pierre Schlag maps out a big picture view of the tribulations of the American state. The book abjures conventional academic frameworks, sets aside prescriptions for quick fixes, dispenses with lamentations about polarization, and bypasses historical celebrations of the American Spirit.

And from the reviews:

“Pierre Schlag’s essay describes the development—or degeneration—of the American state from one animated by the principles of liberal democracy through the administered state to neoliberalism and now what he calls the dissociative state. Each state form generates tensions that it is unable to resolve, leaving us today facing the possibility that the authoritarian impulses that have grown out of frustration with the state’s failures will come to control a new state form. Schlag tells us that understanding how we got to where we are is the precondition for doing something about it, though he forgoes prescribing simple remedies. This is a bracing and—alas—somewhat depressing account of American constitutionalism today.”—Mark Tushnet, Harvard Law School

“This book is intentionally radical, and it makes an exciting and cutting-edge contribution in the fields of legal and political theory and history. It is beautifully written. Its intellectual contributions are major. Its distinctive voice is simultaneously personal, charming, and haunting. In short: it reads like Pierre Schlag.”—Mitchel Lasser, Jack G. Clarke Professor of Law and Director of Graduate Studies, Cornell Law School