21 New and Forthcoming Books

We live by ideas.  Even in this digital data era, we the heirs of the Guttenberg legacy still derive many of our new ideas from the printed page.  Mindful of that, I have selected a variety of books that may be of some interest to the readers of this blog.  To that end, I have highlighted 21 new or forthcoming books (including two of my own) and organized them under 11 topical categories.  Consider them, read them, purchase them, or just browse the list below.  More books, more profiles, coming.         

 

Academic Freedom

—   Marjorie Heins, Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge (New York University Press, February 2013)

“In the early 1950s, New York City’s teachers and professors became the targets of massive investigations into their political beliefs and associations. Those who refused to cooperate in the questioning were fired. Some had undoubtedly been communists, and the Communist Party-USA certainly made its share of mistakes, but there was never evidence that the accused teachers had abused their trust. Some were among the most brilliant, popular, and dedicated educators in the city. Priests of Our Democracy tells of the teachers and professors who resisted the witch hunt, those who collaborated, and those whose battles led to landmark Supreme Court decisions. It traces the political fortunes of academic freedom beginning in the late 19th century, both on campus and in the courts. Combining political and legal history with wrenching personal stories, the book details how the anti-communist excesses of the 1950s inspired the Supreme Court to recognize the vital role of teachers and professors in American democracy. The crushing of dissent in the 1950s impoverished political discourse in ways that are still being felt, and First Amendment academic freedom, a product of that period, is in peril today.” —Publisher’s blurb

 

Arbitration

—    Joshua Karton, The Culture of International Arbitration and The Evolution of Contract Law (Oxford University Press, June 2013)

“This unique study investigates a theory of international arbitration culture alongside the publicly available arbitral awards, in order to make predictions about the contract law principles that international arbitrators are likely to favor. Drawing on interviews with prestigious practitioners in a range of jurisdictions, as well as case studies, conference papers, and unpublished awards, it presents a comparative analysis of arbitral and judicial responses to contractual principles. Part I presents the divergence in outcomes between national court litigation and international arbitration in relation to substantive law determinations, conducting in-depth case studies in two areas: the suspension of performance in response to non-performance, and the admissibility of extrinsic evidence to interpret contracts. Part II accounts for the conclusions of Part I with a comprehensive theory of arbitral decision-making, grounded in evidence gathered first-hand from arbitrators themselves.” —Publisher’s blurb

 

Constitutional Law

—  Josh Blackman, Unprecedented: The Supreme Challenge to Obamacare (Public Affairs Books, summer, 2013)

“Unprecedented is the first book that explores the story of the legal challenge to the Patient Protection and Affordable Care Act—pejoratively known as “Obamacare”—from its inception all the way to the Supreme Court’s landmark decision in NFIB v. Sebelius. Unprecedented charts the journey of this challenge from its conception, where a small group of academics and Beltway attorneys created up a legal strategy—Congress could not regulate a person’s decision not to purchase health insurance. After its endorsement by leading Republican politicians, and buoyed by the rise of the Tea Party and its focus on the Constitution, this idea turned into a nationwide constitutional movement. Unprecedented explores how this case transformed the way we look at the Constitution, the Supreme Court, and the law, with a focus on the people and organizations that laid the groundwork for this challenge, and made the unexpected outcome a reality.” — JB blurb

 

—   Nathaniel Persily, Gillian Metzger and Trevor Morrison, editors, The Health Care Case: The Supreme Court’s Decision & its Implications (Oxford University Press, May 2013)

“The book is divided into the following four topical sections:  Part I:  Reflections on the Supreme Court’s Decision; Part II:  Lines of Argument: Commerce, Taxing and Spending, Necessary and Proper, and Due Process; Part III: The Important Role of the Chief Justice; and Part IV: The Decision’s Implications.  Twenty contributors: Jonathan Adler, Samuel Bagenstos, Jack Balkin, Randy Barnett, Andrea Campbell, Richard Epstein, Charles Fried, Abbe Gluck, Michael Graetz, Jamal Greene, Linda Greenhouse, Timothy Jost, Andrew Koppelman, Jerry Mashaw, Sara Rosenbaum, Neil Siegel, Ilya Somin, Ted Ruger, Robert Weiner, John Witt, and the editors.” ­       NP blurb

Contracts Law

—  Douglas G. Baird, Reconstructing Contracts (Harvard University Press, April 2013)

University of Chicago Law Professor “Douglas Baird takes stock of the current state of contract doctrine and in the process reinvigorates the classic framework of Anglo-American contract law, showing that Oliver Wendell Holmes’s set of principles, properly understood, continues to provide the best guide to contracts for a new generation of students, practitioners, and judges.” —Publisher’s blurb

 

—    Joshua Karton, The Culture of International Arbitration and The Evolution of Contract Law {see Arbitration, above}

 

—   Larry DiMattei, editor, Commercial Contract Law: Transatlantic Perspectives (Cambridge University Press, February 2013)

“This book focuses on the law of commercial contracts as constructed by the U.S. and UK legal systems. Leading scholars from both sides of the Atlantic provide works of original scholarship focusing on current debates and trends from the two dominant common law systems. The chapters approach the subject areas from a variety of perspectives – doctrinal analysis, law and economic analysis, and social-legal studies, as well as other theoretical perspectives. The book covers the major themes that underlie the key debates relating to commercial contract law: role of consent; normative theories of contract law; contract design and good faith; implied terms and interpretation; policing contract behavior; misrepresentation, breach, and remedies; and the regional and international harmonization of contract law. Contributors provide insights on the many commonalities, but more interestingly, on the key divergences of the United States and United Kingdom’s approaches to numerous areas of contract law. Such a comparative analysis provides a basis for future developments and improvements of commercial contract law in both countries, as well as other countries that are members of the common law systems. At the same time, insights gathered here should also be of interest to scholars and practitioners of the civil law tradition.” —Publisher’s blurb

 

Criminal Justice

— John R. Vile & David Hudson, Jr., editors, Encyclopedia of the Fourth Amendment (C.Q. Press, December 2012)

“Covering the key concepts, events, laws and legal doctrines, court decisions, and litigators and litigants, this new reference on the law of search and seizure – in the physical as well as the online world – provides a unique overview for individuals seeking to understand the Fourth Amendment to the U.S. Constitution. More than 900 A to Z entries cover the key issues that surround this essential component of the Bill of Rights and the linchpin of a right to privacy. This two-volume reference-from the editors of CQ Press’ award-winning “Encyclopedia of the First Amendment” – features a series of essays that examine the historical background of the Fourth Amendment along with its key facets relating to: technology; privacy; terrorism; warrant requirement; congress; and, states. A to Z entries include cross-references and bibliographic entries. This work also features both alphabetical and topical tables of contents as well as a comprehensive subject index and a case index. At a time when threats of crime and terrorism have resulted in increased governmental surveillance into personal lives, this work will serve as an important asset for researchers seeking information on the history and relevance of legal rights against such intrusions.” —Publisher’s blurb

 

—  Tracey Maclin, The Supreme Court and the Fourth Amendment’s Exclusionary Rule (Oxford University Press, November-December 2012)

“The application of the Fourth Amendment’s Exclusionary Rule has divided the Justices of the Supreme Court for nearly a century. As the legal remedy for when police violate the Fourth Amendment rights of a person and discover criminal evidence through illegal search and seizure, it is the most frequently litigated constitutional issue in United States courts. Tracey Maclin’s The Supreme Court and the Fourth Amendment’s Exclusionary Rule traces the rise and fall of the exclusionary rule using insight and behind-the-scenes access into the Court’s thinking. Based on original archival research into the private papers of retired Justices, Professor Maclin’s analysis clarifies the motivations and thoughts that explain the Court’s exclusionary rule jurisprudence. He includes a comprehensive scholarly and objective discussion of the reasoning behind the Court decisions, and demonstrates that like other constitutional doctrines, the exclusionary rule is a political mechanism that expands and contracts as the times and Justices change. Ultimately, this book will help readers understand how constitutional law is constructed by judges with diverse political perspectives.” —Publisher’s blurb

 

—   Jonathan Simon, Mass Incarceration on Trial: America’s Courts and the Future of Imprisonment (The New Press, August 2013)

“For nearly forty years, the United States has been gripped by policies that have placed more than 2.5 million Americans in jails and prisons designed to hold a fraction of that number of inmates. Our prisons are not only vast and overcrowded, they are degrading—relying on racist gangs, lockdowns, and Supermax-style segregation units to maintain a tenuous order. In short, mass incarceration has proven to be a fiscal and penological disaster. A landmark 2011 Supreme Court decision, Brown v. Plata, has opened an unexpected escape route from this trap of “tough on crime” politics and points toward values that could restore legitimate order to American prisons and ultimately lead to the dismantling of “mass incarceration.” Berkeley law professor Jonathan Simon—an internationally renowned critic of mass incarceration and the war on crime—argues that, much like the epic school segregation cases of the last century, this new case represents a major breakthrough in jurisprudence. Along with twenty years of litigation over medical and mental health care in California prisons, the 2011 Brown decision moves us from a hollowed-out vision of civil rights to the threshold of human rights.” —Publisher’s blurb

 

First Amendment Law

—   Ronald K.L. Collins, Nuanced Absolutism: Floyd Abrams & the First Amendment (Carolina Academic Press, 2013)

“In Nuanced Absolutism First Amendment scholar Ronald Collins identifies, explains, and analyzes key aspects of the legal thought of America’s most noted contemporary First Amendment lawyer, Floyd Abrams — a man who has had a profound impact on the law of free speech. In the process of discussing Abrams’s work, the reader is introduced to “nuanced absolutism,” a way of thinking about the First Amendment.  Nuanced absolutism describes a tenet of existing First Amendment law that has emerged over the years and which has taken on new life in the decisional law of the Roberts Court. Before it was judge-made law, it was a brand of law argued by lawyers, most notably Floyd Abrams. One of the author’s aims is to remind readers of the role played by lawyers in shaping our law, especially our supreme law. By way of an intellectual history and biographical approach to his subject, Collins explains how Abrams’s nuanced absolutism operates in the context of some of the appellate cases he has litigated, the causes he has defended, and the positions he has taken in public. In short, the work is a biographical sketch and case study of one man’s life in the law, the law of the First Amendment.” —Publisher’s blurb

 

—  Paul Horwitz, First Amendment Institutions (Harvard University Press, January 2013)

“Addressing a host of hot-button issues, from the barring of Christian student groups and military recruiters from law schools and universities to churches’ immunity from civil rights legislation in hiring and firing ministers, Paul Horwitz proposes a radical reformation of First Amendment law. Arguing that rigidly doctrinal approaches can’t account for messy, real-world situations, he suggests that the courts loosen their reins and let those institutions with a stake in First Amendment freedoms do more of the work of enforcing them. Universities, the press, libraries, churches, and various other institutions and associations are a fundamental part of the infrastructure of public discourse. Rather than subject them to ill-fitting, top-down rules and legal categories, courts should make them partners in shaping public discourse and First Amendment law, giving these institutions substantial autonomy to regulate their own affairs. Self-regulation and public criticism should be the key restraints on these institutions, not judicial fiat. Horwitz suggests that this approach would help the law enhance the contribution of our “First Amendment institutions” to social and political life. It would also move us toward a conception of the state as a participating member of our social framework, rather than a reigning and often overbearing sovereign. First Amendment Institutions offers a new vantage point from which to evaluate ongoing debates over topics ranging from campaign finance reform to campus hate speech and affirmative action in higher education.” —Publisher’s blurb

 

—  Andrew Koppelman, Defending American Religious Neutrality {see Religious Freedom, below}

 

Judicial Biography, etc.

—   Constance Jordan, editor, Reason and Imagination The Selected Correspondence of Learned Hand (Oxford University Press, December 2012) (foreword by Ronald Dworkin)

“Judge Learned Hand is an icon of American Law. Though he was never nominated to our country’s highest court, Hand is nevertheless more frequently quoted by legal scholars and in Supreme Court decisions than any other lower court judge in our history. He was the model for all judges who followed him, setting the standard for the bench with a matchless . In Reason and Imagination, Constance Jordan offers a unique sampling of the correspondence between Hand and a stellar array of intellectual and legal giants, including Justice Oliver Wendell Holmes, Theodore Roosevelt, Walter Lippmann, Felix Frankfurter, Bernard Berenson, and many other prominent political and philosophical thinkers. The letters–many of which have never been published before–cover almost half a century, often taking the form of brief essays on current events, usually seen through the prism of their historical moment. They reflect Hand’s engagement with the issues of the day, ranging from the aftermath of World War I and the League of Nations, the effects of the Depression in the United States, the rise of fascism and the outbreak World War II, McCarthyism, and the Supreme Court’s decisions on segregation, among many other topics. Equally important, the letters showcase decades of penetrating and original thought on the major themes of American jurisprudence, particularly key interpretations of the First, Fifth, and Fourteenth Amendments.” —Publisher’s blurb

 

Jurisprudence

— Ronald Collins & David Skover, On Dissent: Its Meaning in America (Cambridge University Press, July 2013)

America values dissent.  It tolerates, encourages, and protects it.  But what is this thing we value?  That is a question never asked.  Dissent is treated as a known fact.  For all that has been said about dissent – in books, articles, judicial opinions, and in the popular culture – it is remarkable that no one has devoted much, if any, ink to explaining what dissent is.  No one has attempted to sketch its philosophical, linguistic, legal, or cultural meanings or usages.  There is a need to develop some clarity about this phenomenon we call dissent.  For not every difference of opinion, symbolic gesture, public activity in opposition to government policy, incitement to direct action, revolutionary effort, or political assassination need be tagged dissent.  In essence, we have no conceptual yardstick.  It is just that measure of meaning that On Dissent offers. On Dissent also features the insightful commentaries of twenty-three distinguished persons the authors’ interviewed – noted jurists, legal scholars, philosophers, sociologists, historians, religious studies professors, and political theorists. The authors draw on these commentaries throughout the book to assist in their examination of the conceptual boundaries and linguistic meaning of dissent.” —Publisher’s blurb

 

—  Kent Greenawalt, Statutory and Common Law Interpretation (Oxford University Press, November 2012)

“As Kent Greenwalt’s second volume on aspects of legal interpretation, this book analyzes statutory and common law interpretation and compares the two. In respect to statutory interpretation, it first asks whether judges are “faithful agents” of the legislature or “independent cooperative partners.” It concludes that the obvious answer is that neither simple categorization really fits-that the function of judges involves a combination of roles. The next issue addressed is whether the intent of those in authority matters for interpreting the kinds of instructions contained in statutes. At the general level, the answer is “yes.” This answer follows even if one thinks interpretation should concentrate on the understanding of readers, because readers themselves would treat intentions as part of the relevant context of the language of statutes. It would take some special reasons, such as constitutional structure or unreliability, to discount actual intents of legislators and use of legislative history. The book argues that none of these special reasons are convincing. On the question whether judges should focus on the language of specific provision or overall purpose, both are relevant, and purpose should become more important as time passes. In an analysis of various other features of statutory interpretation, the book claims that presidential signing statements should not have weight, that subsequent legislative actions short of new statutes should only occasionally carry importance, that “canons of interpretation,” such as the rule of lenity, can provide some, limited, guidance, and that there are special reasons for courts to adhere to precedents in statutory cases, but these should not yield any absolute rule. A chapter on administrative interpretation of statutes claims that the standards agencies apply should differ to a degree from those of courts and that judicial deference to those interpretations is ordinarily warranted. The book’s second part, on common law interpretation, considers the force of precedents, resisting any simple dichotomy between holding and dictum. It also defends the use of reasoning by analogy, not only in the initial stages thinking about a problem, but also in respect to some final justifications for decisions. An examination of the place of rules, principles, and policies argues that all three are relevant in common law interpretation; and shows that common law interpretation is not reducible to any formula. A final chapter compares statutory and common law interpretation, similarities and differences, how each can affect the other, and the significance of having a legal system in which they both play prominent roles.” —Publisher’s blurb

 

—  David Rabban, Law’s History: American Legal Thought and the Transatlantic Turn to History (Cambridge University Press, November-December 2102)

“This is a study of the central role of history in late-nineteenth century American legal thought. In the decades following the Civil War, the founding generation of professional legal scholars in the United States drew from the evolutionary social thought that pervaded Western intellectual life on both sides of the Atlantic. Their historical analysis of law as an inductive science rejected deductive theories and supported moderate legal reform, conclusions that challenge conventional accounts of legal formalism Unprecedented in its coverage and its innovative conclusions about major American legal thinkers from the Civil War to the present, the book combines transatlantic intellectual history, legal history, the history of legal thought, historiography, jurisprudence, constitutional theory, and the history of higher education.” —Publisher’s blurb

 

—  William Twining, Karl Llewellyn and the Realist Movement (Cambridge University Press, 2nd ed., October 2012) (foreword by Frederick Schauer)

“First published in 1973, Karl Llewellyn and the Realist Movement is recognized as a classic account of American Legal Realism and its leading figure. Karl Llewellyn is the best known and most substantial jurist of the variegated group of lawyers known as the American Realists. A man of wide interests and colorful character, he made important contributions to legal theory, legal sociology, commercial law, contract law, civil liberties law, and legal education. This intellectual biography sets Llewellyn in the broad context of the rise of the American Realist Movement and contains a brief overview of Llewellyn’s life and character before focusing attention on his most important works, including The Cheyenne Way, The Bramble Bush, The Common Law Tradition, the Uniform Commercial Code, and some significant manuscripts. In this second edition the original text is unchanged and is supplemented with a foreword by Frederick Schauer and a lengthy afterword in which William Twining gives a fascinating personal account of the making of the book and comments on developments in relevant legal scholarship over the past forty years.” —Publisher’s blurb

 

—  Ernest Weinrib, Corrective Justice (Oxford University Press, November 2012)

“Ernest Weinrib made a seminal contribution to the understanding of private law with his first book, The Idea of Private Law. In it, he argued that there is a special morality intrinsic to private law: the morality of corrective justice. By understanding the nature of corrective justice we understand the purpose of private law – which is simply to be private law. In this new book Weinrib takes up and develops his account of corrective justice, its nature, and its role in understanding the law. He begins by setting out the conceptual components of corrective justice, drawing a model of a moral relationship between two equals and the rights and duties that exist between them. He then explains the significance of corrective justice for various legal contexts: for the grounds of liability in negligence, contract, and unjust enrichment; for the relationship between right and remedy; for legal education; for the comparative understanding of private law; and for the compatibility of corrective justice with state support for the poor. Combining legal and philosophical analysis, Corrective Justice integrates a concrete and wide-ranging treatment of legal doctrine with a unitary and comprehensive set of theoretical ideas. Alongside the revised edition of The Idea of Private Law, it will be essential reading for all academics, lawyers, and students engaged in understanding the foundations of private law.” —Publisher’s blurb

 

Religious Freedom

—   Marc O. DeGirolami, The Tragedy of Religious Freedom (Harvard University Press, June 2013)

“Legal scholars expect to resolve religious dilemmas according to principles of equality, neutrality, or separation of church and state. But such abstractions fail to do justice to the clashing values in today’s pluralistic society. Marc DeGirolami explains why conflicts implicating religious liberty are so emotionally fraught and deeply contested.” —Publisher’s blurb

 

—  Paul Horwitz, First Amendment Institutions {See First Amendment Law, above}

 

—  Andrew Koppelman, Defending American Religious Neutrality (Harvard University Press, January 2013)

“Although it is often charged with hostility toward religion, First Amendment doctrine in fact treats religion as a distinctive human good. It insists, however, that this good be understood abstractly, without the state taking sides on any theological question. Here, a leading scholar of constitutional law explains the logic of this uniquely American form of neutrality—more religion-centered than liberal theorists propose, and less overtly theistic than conservatives advocate. The First Amendment’s guarantee of freedom of religion is under threat. Growing numbers of critics, including a near-majority of the Supreme Court, seem ready to cast aside the ideal of American religious neutrality. Andrew Koppelman defends that ideal and explains why protecting religion from political manipulation is imperative in an America of growing religious diversity. Understanding American religious neutrality, Koppelman shows, can explain some familiar puzzles. How can Bible reading in public schools be impermissible while legislative sessions begin with prayers, Christmas is an official holiday, and the words “under God” appear in the Pledge of Allegiance? Are faith-based social services, public financing of religious schools, or the teaching of intelligent design constitutional? Combining legal, historical, and philosophical analysis, Koppelman shows how law coherently navigates these conundrums. He explains why laws must have a secular legislative purpose, why old, but not new, ceremonial acknowledgments of religion are permitted, and why it is fair to give religion special treatment.” —Publisher’s blurb

 

Trusts & Tax

— Rose-Marie Antoine, Offshore Financial Law: Trusts and Related Tax Issues (Oxford University Press, 2nd ed., June 2013)

“The discipline of offshore financial law has developed substantially since the first edition of this book was published. The second edition updates the reader with developments in case law and legislation and also covers a more extensive range of offshore jurisdictions including new coverage of Switzerland, Dubai, Hong Kong, Alaska, Nevada, Singapore, and Liechtenstein. For ease of reference the new edition includes an introductory chapter that gives a summary of the legislative infrastructure in the various jurisdictions. This provides a quick guide to where to find answers on offshore financial law matters. Recognizing the importance of Islamic finance there is now a chapter on the Shari’a Trust in offshore financial law. Other new chapters focus on US ‘Offshore’ Trusts such as the Nevada and Alaska Trusts and the Foundation trust, a vehicle used in civil jurisdictions. Considering the impact of the G20 and more recent OECD discussions on confidentiality, disclosure, and tax issues, this new edition brings the reader up to date with the changing regulatory landscape concerning the offshore sector. All practitioners and scholars interested in offshore financial law will find this text to be an essential reference source on the law and practice in this sector.” —Publisher’s blurb

 

Torts

—  Charles J. Glasser, Jr., International Libel and Privacy Handbook: A Global Reference for Journalists, Publishers, Webmasters, and Lawyers  (3rd ed., Bloomberg, March 2013)

“Especially now, in an age of instant global access through digital media, it is vitally important that journalists, authors and publishers, as well as the lawyers who serve them, be fully up on the laws governing media, worldwide. The ultimate resource for all the media content providers and purveyors, this fully updated and expanded Third Edition of the critically-acclaimed handbook offers you instant access to relevant libel and privacy laws and important legal rulings in the Europe, Asia, the Middle East and the Americas. It clearly and concisely explains risks publishers should know about prior to publication, steps they can take in order to avoid legal conflicts, and legal defenses available to them in the event of a claim.” —Publisher’s blurb

 

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Ronald K.L. Collins is the Harold S. Shefelman scholar at the University of Washington School of Law.  His next book, Floyd Abrams and the First Amendment, comes out this January followed in March by Mania: The Story of the Outraged and Outrageous Lives that Launched a Generation (with David Skover).  

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