Category: Book Reviews


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



—    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interviews with prestigious practitioners in a range of jurisdictions, as well as case studies, conference papers, and unpublished awards, it presents a comparative analysis of arbitral and judicial responses to contractual principles.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

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Gamification – Kevin Werbach and Dan Hunter’s new book

Gamification? Is that a word? Why yes it is, and Kevin Werbach and Dan Hunter want to tell us what it means. Better yet, they want to tell us how it works in their new book For the Win: How Game Thinking Can Revolutionize Your Business (Wharton Press). The authors get into many issues starting with a refreshing admission that the term is clunky but nonetheless captures a simple, powerful idea: one can use game concepts in non-game contexts and achieve certain results that might be missed. As they are careful to point out, this is not game theory. This is using insights from games, yes video games and the like, to structure how we interact with a problem or goal. I have questions about how well the approach will work and potential downsides (I am after all a law professor). Yet, the authors explore cases where the idea has worked, and they address concerns about where the approach can fail. I must admit I have only an excerpt so far. But it sets out the project while acknowledging possible objections that popped to mind quite well. In short, I want to read the rest. Luckily the Wharton link above or if you prefer Amazon Kindle are both quite reasonably priced. (Amazon is less expensive).

If you wonder about games, play games, and maybe have thought what is with all this badging, point accumulation, leader board stuff at work (which I did while I was at Google), this book looks to be a must read. And if you have not encountered these changes, I think you will. So reading the book may put you ahead of the group in understanding what management or companies are doing to you. The book also sets out cases and how the process works, so it may give you ideas about how to use games to help your endeavor and impress your manager. For the law folks out there, I think this area raises questions about behavioral economics and organizations that will lay ahead. In short, the authors have a tight, clear book that captures the essence of a movement. That alone merits a hearty well done.


F-Words: Fairness and Freedom in Contract Law

As I read “Facing Limits,” Larry’s chapter on unenforceable bargains, I had to pause and smile at the following line:

People often think that fairness is a court’s chief concern, but that is not always true in contract cases (p. 57).

I still remember the first time someone used the word “fair” in Douglas Baird’s Contracts class. “Wait, wait,” he cried, with an impish grin. “This is Contracts! We can’t use ‘the f-word’ in here!”Of course, Larry also correctly recognizes the flip side of the coin. If courts are not adjudicating contracts disputes based on what is “fair,” we might think that “all contracts are enforced as made,” but as Larry points out, “that is not quite right, either” (p. 57).

Pedagogically, Contracts in the Real World is effective due to its pairings of contrasting casebook classics, juxtaposed against relevant modern disputes. In nearly every instance, Larry does an excellent job of matching pairs of cases that present both sides of the argument. I don’t mean to damn with faint praise, because I love the project overall, but I feel like Larry may have missed the boat with one pairing of cases. Read More


“Contracts in the Real World” Book Symposium


We are delighted to announce a book symposium for October 17, 18 and 19 here at Co-Op on Contracts in the Real World: Stories of Popular Contracts and Why They Matter (Cambridge U. Press 2012), my defense of the traditional common law of contracts that offers students an interesting and entertaining way through the subject by drawing on current events.

Following are  confirmed participants.


Miriam A. Cherry (St. Louis U.)

Ronald K. L. Collins (U. Washington)

Erik Gerding (U. Colorado)

Susan Schwab Heyman (Roger Williams U.)

David A. Hoffman (Temple U.)

Nancy S. Kim (Cal. Western)

Donald C. Langevoort (Georgetown U.)

Tom C. W.  Lin (U. Florida)

Jake Linford (Florida State U.)

Jennifer S. Taub (Vermont)



Recommended Reading: Robert Kaczorowski’s “Fordham University School of Law: A History”

Ever since the inception of the recession, we have been embroiled in a conversation about legal education–its costs, value, and flaws.  There has been much controversy, some informed and some uninformed about the need for reforms in legal education and ways forward.  Amidst this debate, legal historian Robert Kaczorowski has written a brilliant and engrossing history of Fordham Law School, one that highlights, among many issues, the struggles that law schools have with their universities about the funds they generate.  As Kaczorowski’s book “Fordham University School of Law: A History” highlights, universities see their law schools as cash cows, siphoning away their funding for the main university and taking away those funds from the law school.  Legal reform amidst that continuing state of affairs is a fraught enterprise, indeed.  Of the book, esteemed legal historian William Nelson (NYU) writes:

One of the best books ever written on American legal education.  Besides documenting the history of Fordham Law, Kaczorowski makes three major contributions to the knowledge of legal education’s history.  First, the book documents why large numbers of late-nineteenth and early-twentieth-century immigrants and their children needed the founding of a Catholic law school.  Second, it documents the factors that produce greatness in a law school.  Third, it traces a conflict over the funding of law school.  No other work has addressed these issues in depth.  Kaczorowski has done a remarkable job.


On Information Justice

Like the other commenters on From Goods to a Good Life, I also enjoyed the book and applaud Professor Sunder’s initiative in engaging more explicitly in the values conversation than has been conventionally done in IP scholarship. I also agree with most of what the other commenters have said.  I want to offer plaudits, a few challenges, and some suggestions about future directions for this conversation.

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Amazing New Corporate Law & Econ Book

If you are interested in corporate law, especially economic analysis of it, you likely will enjoy an impressive new book collecting original pieces by 30 prominent corporate law scholars. Edited by Claire Hill and Brett McDonnell of the University of Minnesota, the book canvases every important topic in corporate law.

After an overview that traces the history of the economic analysis of corporate law, the book addresses corporate constituencies, governance, gatekeepers, government oversight and a few other hot topics not classified.

Within constituencies, topics consider the directors’ role, the roles of other corporate actors, including shareholders, creditors, employees, and other stakeholders along with broader notions of the public interest. 

Internal governance looks at fiduciary duties, shareholder litigation, outside directors, shareholder activism and executive compensation.  

Gatekeeper pieces address lawyers and auditors, as well as rating agencies,  research analysts, D&O insurers and investment banks.

Jurisdiction looks at both domestic federalism as well as comparative perspective.

Unclassified topics address self-dealing, behavioral economics, and market efficiency.

The scholars are the following professors:

Ahdieh,   Atanasov, Bainbridge, Black, Blair, Bodie,  Ciccotello,  Clarke, Cunningham, Darbellay, Davidoff, Fairfax,  Ferri, Fisch,  Frankel, Gilson, Griffith, Hill, Kraakman, Langevoort, Lee, McDonnell, Painter, Partnoy, Smith,  Thomas,  Thompson, Walker, and Whitehead.  

The table of contents to this impressive volume follows. Get it while it’s hot!!

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BOOK REVIEW: A New (Scientific) Look at the SG and the Court (reviewing Black and Owens’s The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions)

Ryan C. Black & Ryan J. Owens, The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions (Cambridge University Press, 2012)

I think a strong Solicitor General can have a very considerable influence on the Court.

— Erwin Griswold

Recently the Justices asked the Solicitor General’s office for its views on two cases, one concerning the Clean Water Act, and the other concerning the immunity of a foreign government’s central bank when the U.S. seeks to seize its assets.  Though standard fare, the request reminds us of the importance that of SG’s office in our system of justice.  To understand the workings of the Court, it is important to understand the workings of the SG’s office and how the two interact. Or as Lincoln Caplan put it in his The Tenth Justice: The Solicitor General and the Rule of Law (1987): “The relationship between the Supreme Court and the SG’s office has long been more intimate than anyone at either place likes to acknowledge.”  Indeed.  Thankfully, some of that intimacy is subject to scrutiny, as a forthcoming book on the subject reveals.

A newly released book is sure to be of interest to Court watchers. I refer to The Solicitor General and the United States Supreme Court: Executive Influence and Judicial Decisions (Cambridge University Press, 2012) by political science professors Ryan C. Black (Michigan State University) and Ryan J. Owens (University of Wisconsin, Madison).  Both have written extensively, and continue to do so, on the Court, its workings, and on constitutional law generally.  As their book and other works make clear, different SG’s approach their job quite differently and what they do can sometimes shape the resulting law announced by a majority of the Court. (See Michael McConnell, “The Rule of Law and the Solicitor General,” 21 Loy. L.A. L. Rev. 1105 (1988), and Steven Calabresi, “The President, the Supreme Court & the Constitution,” 61 L. & Contemp. Probs. 66 (1998).)


“Learned in the law”

The Office of the Solicitor General (OSG) is a curious institution.  On the one hand, the SG is the lawyer for the Executive Branch, yet on the other hand the SG enjoys chambers at the Supreme Court as if he or she were a “tenth justice.”  Though the SG is independent of the Court, the Justices are frequently dependent on the SG’s counsel.  Not surprisingly, then, federal law (28 U.S.C. § 505) requires that the SG, and no other, be “learned in the law.”

The SG’s influence can hardly be denied. As David O. Stewart has observed: “The Justices have relied on the SG to screen unworthy petitions for certiorari and to provide a complete statement of the relevant law.  And they have granted a disproportionately high proportion of the SG’s petitions for certiorari, invited his views on cases ion which the government was not a party and tended to rule in his favor.” (Book Review, ABAJ, Nov. 1, 1987, at 136.)  So, exactly, how influential is the OSG when it comes to what the Court does or does not do?  Professors Black and Owens answer that question by way of a remarkable illustration offered up in the first chapter of their nine-chapter book. This illustration, about which more will be said momentarily, sets the stage for a rigorous and detailed examination, replete with charts, of the work of the OSG and how it helps shape Supreme Court law.  Their work-product derives largely from, among other things, cert pool memos, private docket sheets, and other archival data collected by them and other scholars. The result is a remarkable, as their discussion of National Organization of Women v. Scheidler (1994) illustrates.

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BOOK REVIEW: Judging Judges — Yet Another Posner Book Coming Soon

In contemporary law, his name ranks among the greats.  He is Judge Richard A. Posner.  Among many others, Posner’s works have in more recent times caught the attention of Justice Stephen Breyer, who not infrequently draws on or refers to the Seventh Circuit jurist’s writings.  See e.g., Dorsey v. United States (2012), Mayo Collaborative Servs. v. Prometheus Labs., Inc. (2012), Golan v. Holder (2012, dissenting), McDonald v. City of Chicago (2010, dissenting), Bilski v. Kappos (2010, concurring), Merck & Co. v. Reynolds (2010), and Chambers v. United States (2009).

Whatever the extent of his popularity at the Supreme Court, Judge Posner is one of the few federal jurists to be openly critical of the Court, and in a judicial opinion no less.  Consider, for example, a 1996 antitrust opinion in which then Chief Judge Posner took a few analytical and rhetorical swipes at the Court’s ruling in Albrecht v. Herald Co. (1968).  Therein, Posner argued that the Albrecht opinion was rife with “infirmities” and suffered from “its increasingly wobbly, moth-eaten foundations.” The Supreme Court agreed and quoted Posner approvingly, and then reversed its holding in AlbrechtSee State Oil Co. v. Kahn (1997).  Admittedly, such judicial behavior – both at the circuit and Supreme Court levels – is an anomaly.   Still, there is precedent, and its bears the Posner name.

Beyond Judge Posner’s many erudite (and sometimes controversial) judicial opinions, the Chicago-based jurist has published scores of scholarly articles and some 40 books on a variety of subjects.  Coming this January, Judge Posner returns to one of his favorite topics: judging judges, including the work of Supreme Court Justices.  Before saying anything more about his next book on this subject, permit me to flag a new article he has published entitled “The Rise and Fall of Judicial Restraint,” 100 Cal. L. Rev. 519 (2012).   Here is an abstract of that article:

Judicial self-restraint, once a rallying cry for judges and law professors, has fallen on evil days. It is rarely invoked or advocated. This Essay traces the rise and fall of its best-known variant—restraint in invalidating legislative action as unconstitutional—as advocated by the “School of Thayer,” consisting of James Bradley Thayer and the influential judges and law professors who claimed to be his followers. The Essay argues, among other things, that both the strength and the weakness of the School was an acknowledged absence of a theory of how to decide a constitutional case. The rise of constitutional theory created an unbearable tension between Thayer’s claim that judges should uphold a statute unless its invalidity was clear beyond doubt (as it would very rarely be), and constitutional theories that claimed to dispel doubt and yield certifiably right answers in all cases.

Among Thayer’s most noted followers, Posner includes Justices Oliver Wendell Holmes, Louis Brandeis, and Felix Frankfurter along with Supreme Court scholar Alexander Bickel.   (Re Bickel, see here for a recent online Symposium on the 50th anniversary of the publication of his The Least Dangerous Branch.)


Forthcoming book

Against that backdrop, we come to Judge Posner’s next book: The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice (Harvard University Press, January 2013, $49.95).  Judge Posner is a co-author, the two others being Lee Epstein (professor of law and political science, University of Southern California) and William M. Landes (professor emeritus of law and economics, University of Chicago Law School).

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