Legal Theory Blog

Legal Theory Bookworm: "This Is Not Normal" by Sunstein

The Legal Theory Bookworm recommends This Is Not Normal: The Politics of Everyday Expectations by Cass R. Sunstein.  Here is a description:

This sharp and engaging collection of essays by leading governmental scholar Cass R. Sunstein examines shifting understandings of what’s normal, and how those shifts account for the feminist movement, the civil rights movement, the rise of Adolf Hitler, the founding itself, the rise of gun rights, the response to COVID-19, and changing understandings of liberty. Prevailing norms include the principle of equal dignity, the idea of not treating the press as an enemy of the people, and the social unacceptability of open expressions of racial discrimination. But norms are very different from laws. They arise and change in response to individual and collective action. Exploring Nazism, #MeToo, the work of Alexander Hamilton and James Madison, constitutional amendments, pandemics, and the influence of Ayn Rand, Sunstein reveals how norms ultimately determine the shape of government in the United States, Europe, and elsewhere.

And from the reviews:

"A provocative examination of social constructs and those who would alternately undo or improve them."—Kirkus Reviews

"Provocative, insightful, and original essays on the power of normality, by one of the great social thinkers of this or any other generation."—Daniel Gilbert, author of the New York Times best-seller Stumbling on Happiness

"What if our constitution has nothing to do with the Constitution? In this extraordinary new book, perhaps the leading legal academic of our time places a new problem at the center of the challenge of self-government: How does truth navigate the minefields of the normal? This is exactly the moment when we might muster the strength to be different, maybe even better."—Lawrence Lessig, author of They Don't Represent Us

Legal Theory Bookworm: "You Are Not American" by Frost

The Legal Theory Bookworm recommends You Are Not American: Citizenship Stripping from Dred Scott to the Dreamers by Amanda Frost on SSRN.  Here is a description:

Over the last two centuries, the US government has revoked citizenship to cast out its unwanted, suppress dissent, and deny civil rights to all considered “un-American”—whether due to their race, ethnicity, marriage partner, or beliefs. Drawing on the narratives of those who have struggled to be treated as full members of “We the People,” law professor Amanda Frost exposes a hidden history of discrimination and xenophobia that continues to this day.

The Supreme Court’s rejection of Black citizenship in Dred Scott was among the first and most notorious examples of citizenship stripping, but the phenomenon did not end there. Women who married noncitizens, persecuted racial groups, labor leaders, and political activists were all denied their citizenship, and sometimes deported, by a government that wanted to redefine the meaning of “American.” Today, US citizens living near the southern border are regularly denied passports, thousands are detained and deported by mistake, and the Trump administration is investigating the citizenship of 700,000 naturalized citizens. Even elected leaders such as Barack Obama and Kamala Harris are not immune from false claims that they are not citizens eligible to hold office.

You Are Not American grapples with what it means to be American and the issues surrounding membership, identity, belonging, and exclusion that still occupy and divide the nation in the twenty-first century.

And from the reviews:

“A sharp history that shows the precarious nature of American citizenship.”
—Kirkus Reviews, Starred Review

“A highly informative work that gives depth and humanity to an often-overlooked issue.”
—Library Journal, Starred Review

“This troubling investigation of American exclusionism hits the mark.”
—Publishers Weekly

“Beautifully and engagingly written, Amanda Frost’s You Are Not American describes the disturbing history of citizen stripping in the United States through the eyes of those involved in the country’s most important court cases on the topic. Frost shows how the manipulation of the rules for losing citizenship reflected some of this country’s most gripping political struggles—over slavery, women’s suffrage, communism, immigration, and world wars—and how far we have yet to go to assure the promise of birthright citizenship enshrined in the US Constitution’s Fourteenth Amendment. A must-read!”
—Richard L. Hasen, author of Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy

“This book is an amazing set of biographical stories about historical figures selected to highlight the legal history of why citizenship matters, whether to sue for your freedom, to exercise some liberty, or to keep yourself from being deported. It reads like a dream; not only is the reader absorbed by each story, but the author has skillfully woven the stories into a fabric to show the big picture. Cumulatively, the reader gets an appreciation for the hard-fought legal battles to achieve that condition that many of us take for granted: American citizenship.”
—Lea S. Vandervelde, author of Redemption Song

“One of the defining struggles of the American experience has been over who gets to claim the rights and opportunities of citizenship. In You Are Not American, Amanda Frost clarifies the stakes of these battles over belonging by reconstructing the lives of individual men and women whose citizenship the government tried to strip, from slavery to freedom, in war and peace, and through successive waves of immigration from the early nineteenth century all the way up to our current moment. This book is a moving, masterful, and deeply humane account of why we keep fighting about issues that test our core commitment to liberty and equality for all—our very capacity for democracy.”
—Daniel J. Sharfstein, professor of law and history, Vanderbilt University, and author of Thunder in the Mountains

Legal Theory Bookworm: "he Palgrave Handbook of Applied Ethics and the Criminal Law," edited by Alexander & Ferzan

The Legal Theory Bookworm recommends The Palgrave Handbook of Applied Ethics and the Criminal Law, edited by Larry Alexander & Kimberly Kessler Ferzan.  Here is a description:

This handbook consists of essays on contemporary issues in criminal law and their theoretical underpinnings. Some of the essays deal with the relationship between morality and criminalization. Others deal with criminalization in the context of specific crimes such as fraud, blackmail, and revenge pornography. The contributors also address questions of responsible agency such as the effects of addiction or insanity, and some deal with punishment, its mode and severity, and the justness of the state’s imposition of it. These chapters are authored by some of the most distinguished scholars in the fields of applied ethics, criminal law, and jurisprudence.

And from the reviews:

“This volume contains a Who’s Who of criminal law philosophers, as well as a What’s What of important issues. Nearly every important scholar across several generations has here tackled an issue on which they have done some serious thinking. The future of philosophy’s contributions to criminal law is questioned in some quarters but it is hard to turn away from this volume without being deeply impressed with the continuing importance of the discipline.” (Paul H. Robinson, Colin S. Diver Professor of Law, University of Pennsylvania, author of Intuitions of Justice and the Utility of Desert.)

“The last two decades have seen a flourishing of scholarship that connects philosophical ethics and criminal law―that applies ethics to work out what kind of criminal law we should have, and uses issues in criminal law to throw light on ethical questions. This splendid volume collects thirty-two new papers by some of the most interesting contributors (both established and young) to this flourishing: it helps to define, and advance, this important field of scholarship.”(R.A. Duff, Professor Emeritus in Philosophy, University of Stirling, Scotland, UK)

Legal Theory Bookworm: "Lighting the Way" by Rice

The Legal Theory Bookworm recommends Lighting the Way: Federal Courts, Civil Rights, and Public Policy by Douglas Rice.  Here is a description:

Do our federal courts, including the Supreme Court, lead or merely implement public policy? This is a critical question in the study and practice of law, with a long history of continued dispute and contradictory evidence. In Lighting the Way, Douglas Rice systematically examines both sides of this debate.

Introducing compelling new data on the policy focuses of federal courts, Rice presents the first long-term, comprehensive consideration of the judicial agenda. In doing so, he details the essential role of the Supreme Court and other federal courts in directing attention to issues in American politics through influential relationships with Congress, the presidency, and the public. The dynamics Rice illustrates grow from the strengths of political constituencies in various policy areas and the constitutional powers accorded to the courts. Lighting the Way provides strong evidence that, as long argued but never empirically demonstrated, the courts systematically lead the attention of other institutions on civil rights. The research speaks to a broad and growing literature in political science and sociolegal research on the interactive nature of policymaking and the critical role of legal institutions and social movements in shaping policy agendas.

And from the reviews:

Thoughtfully integrating research, policy models, and analysis in an original conceptual framework, Rice offers a rigorous and timely assessment of the agenda-setting role of courts in the American political system.  (Susan B. Haire, University of Georgia, coauthor of Diversity Matters: Judicial Policy Making in the U.S. Courts of Appeals)

Some new twists on the policy impact of the federal courts.  Recommended.

 

Legal Theory Bookworm: "A Philosophical Introduction to Human Rights" by Mertens

The Legal Theory Bookworm recommends A Philosophical Introduction to Human Rights by Thomas Mertens.  Here is a description:

While almost everyone has heard of human rights, few will have reflected in depth on what human rights are, where they originate from and what they mean. A Philosophical Introduction to Human Rights – accessibly written without being superficial – addresses these questions and provides a multifaceted introduction to legal philosophy. The point of departure is the famous 1948 Universal Declaration of Human Rights, which provides a frame for engagement with western legal philosophy. Thomas Mertens sketches the philosophical and historical background of the Declaration, discusses the ten most important human rights with the help of key philosophers, and ends by reflecting on the relationship between rights and duties. The basso continuo of the book is a particular world view derived from Immanuel Kant. 'Unsocial sociability' is what characterises humans, i.e. the tension between man's individual and social nature. Some human rights emphasize the first, others the second aspect. The tension between these two aspects plays a fundamental role in how human rights are interpreted and applied.

And from the reviews:

‘Thomas Mertens has long been admired as a political and legal philosopher, equally at home in Anglo-American and German thought, who writes with unusual insight about the most important issues in his field. His argument in this book is that human rights are central to the great debates of philosophy of law and it will persuade its audience by the clarity of its exposition and by its adroit and effective use of real-world examples.’ David Dyzenhaus, University Professor of Law and Philosophy, University of Toronto

‘Thomas Mertens' new book on human rights is a highly perceptive and comprehensive examination of the key questions that are raised by the topic. Mertens sets human rights in the context of legal philosophy and analyses in a systematic way the relationship between morality and law; natural law and positive law; international law and national law. A legal Kant scholar of renown, Mertens turns his attention with good effect to the legal and philosophical study of human rights. Written with freshness and clarity, the book will be accessible to all students of law, politics and philosophy, and members of the public with an interest in the topic. The book is vital reading for the twenty-first century. It demonstrates how we owe a good deal to the war-torn, but ultimately progressive, twentieth century. There are countless interesting examples that are drawn from that turbulent century which enliven the discussion.’ Howard Williams, Honorary Distinguished Professor, Cardiff University

‘Thomas Mertens’ book is much more than a handbook on human rights: it uses this topic as a starting point for introducing the readers to philosophy of law and its many questions. Given the centrality of human rights in our societies, this is a justified, clever move. While analysing some major rights as they are stated by the UDHR, Mertens discusses a wide range of arguments for and against their universal or absolute character. In doing so, he invites us to an intellectual tour de force in which history of philosophy and theoretical argumentation are ingeniously intertwined. This ambitious endeavour goes together with philosophical honesty and restraint: the author never forces his position on the readers; he just presents them with the philosophical tools to form their opinion. Also for this reason, this compelling introduction to philosophy of law is highly enjoyable and instructive.’ Alessandro Pinzani, Professor of Political Philosophy at the Federal University of Santa Catarina (UFSC), Brazil

Legal Theory Bookworm: "The President and Immigration Law" by Cox & Rodriguez

The Legal Theory Bookworm recommends The President and Immigration Law by Adam B. Cox & Cristina M. Rodríguez.  Here is the abstract:

Who controls American immigration policy? The biggest immigration controversies of the last decade have all involved policies produced by the President policies such as President Obama's decision to protect Dreamers from deportation and President Trump's proclamation banning immigrants from several majority-Muslim nations. While critics of these policies have been separated by a vast ideological chasm, their broadsides have embodied the same widely shared belief: that Congress, not the President, ought to dictate who may come to the United States and who will be forced to leave.

And from the reviews:

"The President and Immigration Law is a timely myth-busting study of a subject that has divided the nation right in the middle. Taking a unique scholarly take on the subject, Adam B. Cox and Cristina M. Rodr�guez argue that initially the power to conduct immigration policy belonged to Congress but Congress has slowly delegated its right to make and implement immigration policy to the White House. Their clear-eyed analysis cuts through the messy constitutional history and controversies and presents a neutral, balanced view of the issue. In addition to providing insight and unique perspectives, they also stress the importance of bringing about constitutional reform. Adam B. Cox and Cristina M. Rodr�guez once again prove they are the leading authorities on immigration law and history. It is a must-read to understand the current immigration controversy." -- The Washington BookReview

Legal Theory Bookworm: "The Right of Redress" by Gold

The Legal Theory Bookworm recommends The Right of Redress by Andrew Gold.  Here is a description:

The law enables private parties to undo the wrongs committed against them, allowing victims to seek redress. A distinctive kind of justice governs our legal rights of redress, different from the leading corrective justice approaches. Through analysis of this key idea, The Right of Redress helps to make sense of tort, contract, fiduciary law, and unjust enrichment doctrine.

When a wrong is remedied, the authorship of that remedy matters. The justice in private law is sensitive to a right holder's authorship, and understanding how solves a number of legal theory puzzles. Many forms of redress are only available with state assistance, and a full account of private law requires an account of the state's responsibility to assist. It also requires an explanation of those cases in which the state declines to assist. Prior accounts have drawn on Kantian principles or a Lockean social contract theory, where The Right of Redress, drawing on public fiduciary theory, develops a distinctive account of the state's role.

This book offers a new take on various modern features of the private law landscape, ranging from equity, to damage caps, to arbitration, to corporate claims, to class actions. The Right of Redress thus offers a pathbreaking account of the justice in private law, the political theory that underlies it, and the contemporary features that shape our rights of redress today.

Legal Theory Bookworm: "Free Speech in the Balance" by Tsesis

The Legal Theory Bookworm recommends Free Speech in the Balance by Alexander Tsesis.  Here is a description:

Free Speech in the Balance is the first comprehensive study of proportional analysis in free speech theory. This book challenges the US Supreme Court's categorical approach and explains the importance of understanding the breadth of concerns arising from regulations directly and indirectly impacting expression. The author provides in-depth analysis of some of the important social and political principles governing topics of vital concern, including campaign financing, university speech codes, secondary school rules, incitement, and threats. This book should be read by students and scholars of free speech theory and anyone interested in learning more about the history of existing law, the issues of current importance, and trends in expressive significance.

And from the reviews:

'Meiklejohn, Kalven, Fiss, Schauer, Post - and now Tsesis. This path-breaking study combines high theoretical inquiry with careful doctrinal problem-solving and rich comparative analysis to advance a new contextual approach for the most intricate questions of free speech confronting American judges today. The result is a 21st-century theory offering rules of reasoning fit for a contemporary representative democracy.' Richard Albert, William Stamps Farish Professor in Law and Professor of Government, The University of Texas at Austin

'A powerful attack on American free speech absolutism in favor of European proportionality. Professor Alexander Tsesis reminds us that free speech controversies do not exist in sealed First Amendment containers, but require nuanced understandings of their broader contexts and the values that undergird the entire Constitution.' Mark Graber, University System of Maryland Regents Professor, University of Maryland Francis King Carey School of Law

'Tsesis has written an important book whose central thesis can be summarized by one of his own sentences: 'Context matters.' He attacks so-called 'categorical' approaches to freedom of speech, adopted by the ACLU and the current conservative majority of the Supreme Court alike, that tend to ignore the concrete realities of the cases before them. One need not agree with all of his arguments in order to recognize them as a valuable intervention in a significant public debate about when, if at all, the 'market' of speech should be subject to regulation.' Sanford Levinson, University of Texas Law School, and co-author, with Cynthia Levinson, of Fault Lines in the Constitution

Legal Theory Bookworm: "The Oxford Handbook of the New Private Law," edited by Gold, Goldberg, Kelly, Sherwin, & Smith

The Legal Theory Bookworm recommends The Oxford Handbook of the New Private Law, edited by Andrew S. Gold, John C.P. Goldberg, Daniel B. Kelly, Emily Sherwin, & Henry E. Smith (Editor) on SSRN.  Here is a description:

The Oxford Handbook of the New Private Law reflects exciting developments in scholarship dedicated to reinvigorating the study of the broad field of private law. This field embraces the traditional common law subjects (property, contracts, and torts), as well as adjacent, more statutory areas, such as intellectual property and commercial law. It also includes important areas that have been neglected in the United States but are beginning to make a comeback. These include unjust enrichment, restitution, equity, and remedies more generally. "Private law" can also mean private law as a whole, which invites consideration of issues such as the public-private distinction, the similarities and differences between the various areas of private law, and the institutional framework supporting private law - including courts, arbitrators, and even custom.

The New Private Law is an approach to these subjects that aims to bring a new outlook to the study of private law by moving beyond reductively instrumentalist policy evaluation and narrow, rule-by-rule, doctrine-by-doctrine analysis, so as to consider and capture how private law's various features fit and work together, as well as the normative underpinnings of these larger structures. This movement has begun resuscitating the notion of private law itself in the United States and has brought an interdisciplinary perspective to the more traditional, doctrinal approach prevalent in Commonwealth countries. The Handbook embraces a broad range of perspectives to private law - including philosophical, economic, historical, and psychological, to name a few - yet it offers a unifying theme of seriousness about the structure and content of private law. It will be an essential resource for legal scholars interested in the future of this important field.

Legal Theory Bookworm: "Feminist Judgments," edited by McGinley & Porter

The Legal Theory Bookworm recommends Feminist Judgments: Rewritten Employment Discrimination Opinions, edited by Ann C. McGinley & Nicole Buonocore Porter.  Here is a description:

How would feminist perspectives and analytical methods change the interpretation of employment discrimination law? Would the conscious use of feminist perspectives make a difference? This volume shows the difference feminist analysis can make to the interpretation of employment discrimination statutes. This book brings together a group of scholars and lawyers to rewrite fifteen employment discrimination decisions in which a feminist analysis would have changed the outcome or the courts' reasoning. It demonstrates that use of feminist perspectives and methodologies, if adopted by the courts, would have made a significant difference in employment discrimination law, leading to a fairer and more egalitarian workplace, and a more prosperous society.