Category: Book Reviews


Thinking on What Hath God Wrought

Not dense, just big.Having spent a fair amount of time over the last two days sitting in airplanes and airports, I had a chance to read a couple of big chunks of Daniel Howe’s What Hath God Wrought: The Transformation of America, 1815-1848. When I mentioned to a friend of mine on the history faculty here that I was reading Howe’s book, his response was “It’s dense.” Coming from someone who wades through 17th and 18th century French documents for a living, this was a bit intimidating. I don’t think that he is quite right. Indeed, one of the things that strikes me about Howe’s writing is how well he moves his narrative along and his skill in using the striking antectdote to illustrate a complex idea. The book is not so much dense as voluminous. Howe is covering a lot of material.

So far, I have gotten up through the material on the Missouri Compromise and the beginning of the Second Great Awakening. The section on the birth of the Monroe Doctrine was, I thought, a compact gem, deftly capturing the mix of personalities and international politics, in particular the role of Russian expansion in the northwest quadrant of the continent, a story that I had not heard before. The traditional narrative of the Monroe Doctrine, of course, is dominated by Latin America. Other enjoyable bits include the account of Jackson’s invasion of Florida and the carefully constructed plausible deniabilityof the Monroe Administration. Also, the sad and pathetic slide of Jefferson into a de facto defender of slavery is nicely alluded to without being heavy handed. Nevertheless, the Sage of Monticello is seen counselling his son-in-law that a good female slave producing a child every two years is more valuable than a field hand. (Her children could be sold to the cotton plantations farther south at a hansomeprofit later.) We also see him making the ultimately lame and hypocritical argument that extending slavery into Missouri will hasten its gradual decline by spreading it over a greater area, like butter scraped across toast so that it melts faster. In other words, by the end of his life Jefferson had managed in a wonderful bit of self-deception to argue that slavery must be expanded in order to be limited. Thus he could be both the prophet of human freedom, and the prophet of rising pro-slavery sectionalism. Not being a big fan of Jefferson, I relished these tid bits.

His discussion of law so far as been deft but shallow.

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BRIGHT IDEAS: Timothy Zick on Speech Out of Doors

zick-timothy.jpgspeech-out-of-doors.jpgProfessor Timothy Zick (William & Mary College of Law) has written a superb new book, Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge, 2008). Tim has guest blogged with us on a few occasions, and his book raises interesting and important free speech issues involving speech in various places where people commonly gather. I asked Tim a few questions about his new book, and his answers are below.

SOLOVE: What motivated you to write about the issues in your book?

ZICK: I first became interested in the subject of spatial restrictions on speech when I witnessed how protesters and other public speakers were treated in New York City (and elsewhere), particularly after the terrorist attacks of September 11, 2001. Of course, limits on public expression preceded these events. But the trend toward regulating public dissent and other forms of public expression through control over place increased markedly thereafter. Of the many limits placed on public expression, it was the “speech cage” erected at the 2004 Democratic National Convention in Boston that really captured my attention. A district court judge described the structure, which was constructed as a purported “demonstration zone,” as an “internment camp” and “an affront to the First Amendment.” As did others, I found it remarkable that this repressive tactic was being used to regulate public expression in the United States. As or even more remarkable to me was that the courts held the Boston speech cage satisfied First Amendment standards.

SOLOVE: What’s the central idea in your book?

ZICK: I have always felt that the “public forum” and other First Amendment doctrines relating to place fail to appreciate some fundamental aspects of place itself, and of the intersection of place and expression. Anthropologists, geographers, philosophers, and other scholars who are closely attentive to the concept of place have demonstrated how important spatiality is to human interaction and communication, as well as to the state’s control over public contention. Through this lens, I posit in the book that place is not merely a property or “forum.” In many cases, places are distinctly expressive. They form part of an “expressive topography” – a system of places in which a variety of speech activities and contests occur. For example, beggars, proselytizers, and their potential audiences interact in embodied places (personal space); protesters often target specific contested places; and large rallies are held in inscribed places like the National Mall. Speech and spatiality intersect in unique ways in each of these and other spatial types identified in the book. For a variety of reasons, including the increasing privatization of public space, legal restrictions on public speech and assembly, and repressive forms of public policing, our expressive topography has been steadily eroding. This has negatively affected nearly every corner of the expressive topography, from public parks to college and university campuses.

SOLOVE: You write about the diminishing public space for speech. In an age where people increasingly spend their time at home in front of their computers rather than milling about on the public square, what’s the significance of the increasing loss of public space for speech?

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The Year in Privacy Books: 2008

Here’s a list of notable books about information privacy published in 2008. Pick up a few to help stimulate the economy, save the publishing business, and learn more about privacy:


Colin J. Bennett, The Privacy Advocates: Resisting the Spread of Surveillance (MIT Press 2008)

A very informative account of those who work in the privacy advocacy community.

Anupam Chander, Lauren Gelman, and Margaret Jane Radin (editors), Securing Privacy in the Internet Age (Stanford University Press 2008)

A great collection of essays, from a symposium at Stanford Law School. A bit dated — the symposium was held in 2003 — but still worth reading. I have a piece in the book discussing data security vulnerabilities and the law — originally penned back in 2003, so I can say “told ya so!”

William Cuddihy, The Fourth Amendment: Origins and Original Meaning 602-1791 (Oxford University Press 2008)

The best and most comprehensive intellectual history of the Fourth Amendment ever written.

Cory Doctorow, Little Brother (Tor Teen 2008)

A contemporary version of Orwell’s 1984 — thought-provoking and engaging fiction, as usual from Doctorow.


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Privacy and the Media

Cover 1 PAM (small).jpgShameless self-plug alert: I’m pleased to announce the publication of my new casebook with co-author Professor Paul M. Schwartz (Berkeley Law School) — PRIVACY AND THE MEDIA. [Amazon page here.]

This short paperback contains key cases and materials focusing on privacy issues related to the media. Topics covered include the privacy torts, free speech, First Amendment, paparazzi, defamation, online gossip and social network websites.

This book is designed for use as a supplemental text in the following courses and seminars: journalism, entertainment law, media law, Torts II (or advanced torts), cyberlaw, First Amendment, free speech, law and technology, privacy law, and information law.

More information about the book is available here. I posted the table of contents online.

To obtain a review copy, please email Diane Warren at Aspen.

I’m also pleased to announce that the new editions of my other casebooks are now in print — INFORMATION PRIVACY LAW (3rd edition) and PRIVACY, INFORMATION, AND TECHNOLOGY (2nd edition). Click here for more information.


William Cuddihy’s The Fourth Amendment: Origins and Original Meaning 602-1791

cuddihy1.jpgI’m delighted to announce the publication of William J. Cuddihy’s The Fourth Amendment: Origins and Original Meaning 602 – 1791 (Oxford University Press, January 2009). The book has just come out in print, hot off the press, and it’s an absolutely essential volume for any scholar of constitutional history, criminal procedure, or the Fourth Amendment.

Cuddihy’s book is the most comprehensive history of the Fourth Amendment I’ve ever read. It spans over 1000 years of history, tracing the origins of the concepts underpinning the Fourth Amendment from the Middle Ages to the Founding. It clocks in at 940 pages, but much of the heft comes from the extensive footnoting and detailed appendices. The book it is highly readable and contains a wealth of information and insight into the intellectual history of the Fourth Amendment and its original meaning. It comes with a high price tag, but I can assure you that it’s worth every penny.

I first encountered the book as an unpublished manuscript (which was completed over 15 years ago) when I was doing research into the history of the Fourth Amendment. I kept seeing it cited in articles and judicial opinions (it was cited by the U.S. Supreme Court a few times) and so I tracked it down. I couldn’t believe that this detailed, exhaustive, and immensely valuable research had never been published. William Cuddihy wrote it while a doctoral student under the late eminent legal historian Leonard Levy. I contacted Cuddihy and helped him find a publisher. And so I’m delighted that the manuscript is now in print, revised, updated, and with an afterward that responds to scholarship by Akhil Amar and Thomas Davies. I wrote a short preface for the book, in which I conclude:

No other work on the Fourth Amendment has synthesized so many sources, let alone done so as deftly and clearly as Professor Cuddihy’s The Fourth Amendment: Origins and Original Meaning 602-1791. I am very honored to introduce it.

Get your copy today. Tell your librarian to get a copy for your school’s library. It’s truly an impressive book, and is indispensable for anyone who wants to understand the origins of the Fourth Amendment.


Robert Tsai’s Eloquence and Reason

tsai-eloquence.jpgProfessor Robert Tsai (American University, Washington College of Law), who previously guest blogged here in January 2006, has just published Eloquence and Reason: Creating a First Amendment Culture (Yale University Press, Nov. 2008). According to the back cover blurb:

This provocative book presents a theory of the First Amendment’s development. During the twentieth century, Americans gained trust in its commitments, turned the First Amendment into an instrument for social progress, and exercised their rhetorical freedom to create a common language of rights. Robert L. Tsai explains that the guarantees of the First Amendment have become part of a governing culture and nationwide priority. Examining the rhetorical tactics of activists, presidents, and lawyers, he illustrates how committed citizens seek to promote or destabilize a convergence in constitutional ideas. Eloquence and Reason reveals the social and institutional processes through which foundational ideas are generated and defends a cultural role for the courts.

I’ve read a few chapters of this book earlier on, and I highly recommend it. Robert Tsai’s work is always interesting and thought-provoking. He writes beautifully, and he demonstrates with great insight how rhetoric influences constitutional law.

From a blurb on the back cover by Professor Mark Tushnet (Harvard Law School): “A provocative meditation on the ways the metaphors used in constitutional doctrine empower, limit, create, and recreate the public over which the written Constitution is said to assert authority. Intriguing case studies arise from the civil rights movement of the 1960s, the Christian Right of the 1980s, and the attacks on Jehovah’s Witnesses in the 1940s.”


Doctorow’s Discontent with Content

content cover-small.jpgReaders of this blog know that I am a fan of Cory Doctorow’s work. In addition to his fiction, Cory writes nonfiction. His main topics are technology, creativity, copyright, and the future of the future. I know this because I read his work and his latest book, ©ontent, gathers his thoughts on these topics and says so right on the cover. Ah it is so easy. Maybe too easy. Deceptively easy. And that is also Cory’s gift.

©ontent sings. From the opening where Cory tells Microsoft’s Research Group why DRM is foolish to his thoughts on protecting artists to his views on the information economy to his idea that giving away his work is the best thing he can do, Cory offers detailed yet accessible arguments about the way technology, creativity, copyright will affect the future of the future. The essays span several years of writing. Cory makes bold claims about DRM and the market. He presents a rallying call for the United States to keep pace with the changes in information economy lest the rest of the world surpass us. Reading the essays provides insight about his ideas and how they evolved. Remember Cory writes for Boing, Boing, writes science fiction, lectures, and more. His livelihood is at stake here.

Now I can’t say I agree with everything Cory says, but I think what he says merits consideration. Sure, he is in a rarefied world. Maybe he can give away work and still make money. Maybe he is just an evangelist and should be distrusted on those grounds. Then again, read the book. Cory identifies real changes in how our creative system operates and the way in which adherence to the old one could harm us. The last essays grapple with the problems of security and control. They present the possibilities that await us. And that is the point. Cory is speaking of possibility. As he says “We choose the future we want to live in.” ©ontent helps us understand what that future could be and how to have a say in it.


The Future of Academic Presses

book31.jpgAcademic presses are facing a difficult future. Book publishing in general is an industry that is struggling, and academic presses have it especially hard since many titles they publish will not have mass popular appeal. Unfortunately, many academic presses are no longer subsidized by their universities, including very wealthy schools like Harvard and Yale, which are greedily hoarding the money in their big endowments. As a result, academic presses must find ways to be profitable, which can be difficult with books that aren’t written by Malcolm Gladwell or Stephen Colbert.

The result is that academic presses are increasingly publishing books that are more tradey — that are similar to the kinds of books published by commercial presses. They still publish more academic titles, but these books get priced at insane prices ($45, $50, $60 and up), ensuring that they go “straight to library” — the book equivalent of a straight-to-DVD movie. For these more academic books, little to no marketing is done. The expected sales are very low, and they are priced so high because most copies go to libraries. But library sales are shrinking. An editor informed me that many years ago, an average academic book could expect 500-1000 copies to be purchased by libraries, but today, that number has dwindled to about 400 or less.

Another unfortunate result is that many academic presses are charging astronomical fees for including brief excerpts of their books in textbooks and course materials. This retards the spread of ideas, since many textbook authors don’t include excerpts from books because of the fees. There were a number of books that I didn’t excerpt in my Information Privacy Law casebook because of high fees. I assume that most authors would want their books excerpted, and would have preferred to have had their work included.

It is very unfortunate that universities are not subsidizing their academic presses. Although the readership for academic books may be much smaller than that for commercial trade books, the readership can still be expanded if books are priced reasonably and if they are marketed to a greater degree. Among the missions of a university is the spread of ideas, and academic books contribute to that mission. It is a shame that universities are forcing them to behave more like commercial presses. With a modest subsidy, which for most schools would be a pittance given their large endowments, academic presses could better publish and disseminate academic ideas to a wider audience.


The Future of Reputation in Korean

Today, I received copies of the Korean translation of my book, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet. The book begins with an incident in Korea — the dog poop girl — so I hope that the book becomes popular there. I have no idea what all the stuff written on the cover says, so if anybody can read Korean, please let me know (click on the image to see a larger version).

Futurology and Academia

Futurology is often derided as a pastime of trendspotters and luftmenschen. But the recent European Patent Office “Scenarios for the Future” report rehabilitated the genre a bit. I’ve mentioned before that an IP prof has to be a bit of a prognosticator; I’m happy to see Carlin Romano developing the theme (far more eloquently than I could) in this recent review of the Future of Reputation and The Future of the Internet:

Both . . . books, excellent and ultimately upbeat in their separate but related missions, will increase our literacy in their complex yet still intelligible fields. . . .”The best way to predict the future”, the US computer scientist Alan Kay remarked in 1971, “is to invent it.” Pre-emptive description, however, ranks second best. The chief identifying criterion of the future is that it continuously steps back from us, making nothing about it, strictly speaking, true or false.

Both Zittrain and Solove exhibit a common trait of technologically oriented futurists: they tend to assume current values and a wish to preserve them in the face of fresh logistical forces. [Yet] Solove’s examples, such as Jennifer Ringley, the twenty-year-old student who opened her whole life to regular webcam monitoring in 1996 and didn’t shut down until 2004, remind us of truths more explored by Frankfurt School philosophers than American futurists – that technology also changes our values, or at least adjusts them. The iPod, for instance, pressures us to tolerate forms of distraction formerly considered rude, such as the teenager who makes her purchase without removing her earphones.

Both Solove and Zittrain deserve Kierkegaard’s accolade, that to occupy oneself with the future is “an indication of man’s nobility”. Like many “cyberphilosophers”, they are discovering the future in the present with less wonted gloom and doom – and more incisive solutions – than many traditional literary and humanistic pronouncers on the subject.

As someone who has written on the ways new technology can shape values (and believes in the continuing relevance of the Frankfurt School)–I greatly appreciated Romano’s sharp review of these two important books.