masthead

Featured Acquisitions - May and June 2017

 

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Courts Under Constraints: Judges, Generals, and Presidents in Argentina by Gretchen Helmke
Cambridge, UK; New York: Cambridge University Press, 2005
Basement KHA2533 .H45 2005

This study offers a new theoretical framework for understanding how institutional instability affects judicial behavior under dictatorship and democracy. In stark contrast to conventional wisdom, the central findings of the book contradict the longstanding assumption that only independent judges rule against the government of the day. Set in the context of Argentina, the study uses the tools of positive political theory to explore the conditions under which courts rule against the government. In addition to shedding new light on the dynamics of court-executive relations in Argentina, the study provides general lessons about institutions, instability, and the rule of law. In the process, the study builds a new set of connections among diverse bodies of scholarship, including US judicial politics, comparative institutional analysis, positive political theory, and Latin American politics.


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Managed Speech: The Roberts Court's First Amendment by Gregory P. Magarian
New York, NY: Oxford University Press, 2017
Balcony KF8742 .M24 2017

This book comprehensively explores and critiques how the current U.S. Supreme Court, under the leadership of Chief Justice John Roberts, has reshaped First Amendment free speech law. The book argues that the Roberts Court's First Amendment decisions consistently conform to a version of expressive freedom that the author calls "managed speech," providing limited protection for expressive autonomy while bolstering social and political stability. The book critiques managed speech and advocates a contrasting vision of constitutional speech protection called "dynamic diversity," which aims to broaden the range of ideas and participants in public discussion. The book examines every one of the more than forty decisions about expressive freedom that the Supreme Court handed down between Chief Justice Roberts' ascent in September 2005 and Justice Scalia's death in February 2016. These decisions comprise one of the most important, controversial parts of the Roberts Court's record and legacy. The author explores key recurring debates in First Amendment law across three categories of free speech problems: regulations of private speech; restrictions on speech that involves government institutional subjects, government property, or government funding, which the author calls "government preserves"; and regulations of speech in the electoral process.


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Illusion of Justice: Inside Making a Murderer and America's Broken System by Jerome F. Buting
New York, NY: Harper, 2017
Balcony KF225.A84 B88 2017

Interweaving his account of the Steven Avery trial, the trial at the heart of Making a Murderer, with other high profile cases from his criminal defense career, attorney Jerome F. Buting explains the flaws in America's criminal justice system and lays out a provocative, persuasive blueprint for reform. Over his career, Jerome F. Buting has spent hundreds of hours in courtrooms representing defendants in criminal trials. When he agreed to join Dean Strang as co-counsel for the defense in Steven A. Avery vs. State of Wisconsin, he knew a tough fight was ahead. But, as he reveals in Illusion of Justice, no-one could have predicted just how tough and twisted that fight would be--or that it would become the center of the documentary Making a Murderer, which made Steven Avery and Brendan Dassey household names, and thrust Buting into the spotlight. Buting's powerful, riveting boots-on-the-ground narrative of Avery's and Dassey's cases becomes a springboard to examine the shaky integrity of law enforcement and justice in the United States, which Buting has witnessed firsthand for more than 35 years. From his early career as a public defender to his success overturning wrongful convictions working with the Innocence Project, his story provides a compelling expert view into the high-stakes arena of criminal defense law; the difficulties of forensic science; and a horrifying reality of biased interrogations, coerced or false confessions, faulty eyewitness testimony, official misconduct, and more. Combining narrative reportage with critical commentary and personal reflection, Buting explores his professional and personal motivations, career-defining cases--including his shocking fifteen-year-long fight to clear the name of another man wrongly accused and convicted of murder--and what must happen if our broken system is to be saved. Taking a place beside Just Mercy and The New Jim Crow, Illusion of Justice is a tour de force from a relentless and eloquent advocate for justice who is determined to fulfill his professional responsibility and, in the face of overwhelming odds, make America's judicial system work as it is designed to.


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Diminishing the Bill of Rights: Barron v. Baltimore and the Foundations of American Liberty by William Davenport Mercer
Norman: University of Oklahoma Press, 2017
Balcony KF4600 .M47 2017

The modern effort to locate American liberties, it turns out, began in the mud at the bottom of Baltimore harbor. John Barron Jr. and John Craig sued the city for damages after Baltimore's rebuilt drainage system diverted water and sediment into the harbor, preventing large ships from tying up at Barron and Craig's wharf. By the time the case reached the U.S. Supreme Court in 1833, the issue had become whether the city's actions constituted a taking of property by the state without just compensation, a violation of the Fifth Amendment to the U.S. Constitution. The high court's decision in Barron v. Baltimore marked a critical step in the rapid evolution of law and constitutional rights during the first half of the nineteenth century. Diminishing the Bill of Rights examines the backstory and context of this decision as a turning point in the development of our current conception of individual rights. Since the colonial period, Americans had viewed their rights as springing from multiple sources, including the common law, natural right, and English legal tradition. Despite this rich heritage and a prohibition grounded in the Magna Carta against uncompensated state takings of property, the Court ruled against Barron's claim. The Bill of Rights, Chief Justice John Marshall declared in his opinion for the majority, restrained only the federal government, not the states. The Fifth Amendment, accordingly, did not apply to Maryland or any of the cities it chartered.

In explaining how the Court came to reject a multisourced view of human liberties-a position seemingly inconsistent with its previous decisions-William Davenport Mercer helps explain why we now envision the Constitution as essential to guaranteeing our rights. Marshall's view of rights in Barron, Mercer argues, helped him navigate the Court through the precarious political currents of the time. While the chief justice may have effected a shrewd political maneuver, the decision helped hasten a reconceptualization of rights as located in documents. Its legacy, as Mercer's work makes clear, is among the Jacksonian era's significant democratic reforms and marks the emergence of a distinctly American constitutionalism.


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The Long Reach of the Sixties: LBJ, Nixon, and the Making of the Contemporary Supreme Court by Laura Kalman
New York, NY: Oxford University Press, 2017
Balcony KF8742 .K35 2017

The Warren Court of the 1950s and 1960s was the most liberal in American history. Yet within a few short years, new appointments redirected the Court in a more conservative direction, a trend that continued for decades. However, even after Warren retired and the makeup of the court changed, his Court cast a shadow that extends to our own era. In The Long Reach of the Sixties, Laura Kalman focuses on the late 1960s and early 1970s, when Presidents Johnson and Nixon attempted to dominate the Court and alter its course. Using newly released--and consistently entertaining--recordings of Lyndon Johnson's and Richard Nixon's telephone conversations, she roots their efforts to mold the Court in their desire to protect their Presidencies. The fierce ideological battles--between the executive, legislative, and judicial branches--that ensued transformed the meaning of the Warren Court in American memory.

Despite the fact that the Court's decisions generally reflected public opinion, the surrounding debate calcified the image of the Warren Court as activist and liberal. Abe Fortas's embarrassing fall and Nixon's campaign against liberal justices helped make the term "activist Warren Court" totemic for liberals and conservatives alike. The fear of a liberal court has changed the appointment process forever, Kalman argues. Drawing from sources in the Ford, Reagan, Bush I, and Clinton presidential libraries, as well as the justices' papers, she shows how the desire to avoid another Warren Court has politicized appointments by an order of magnitude. Among other things, presidents now almost never nominate politicians as Supreme Court justices (another response to Warren, who had been the governor of California). Sophisticated, lively, and attuned to the ironies of history, [this book] is essential reading for all students of the modern Court and U.S. political history.


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The New Criminal Justice Thinking edited by Sharon Dolovich and Alexandra Natapoff
New York: New York University Press, 2017
Basement HV9950 .N495 2017

After five decades of punitive expansion, the entire U.S. criminal justice system - (mass incarceration, the War on Drugs, police practices, the treatment of juveniles and the mentally ill, glaring racial disparity, the death penalty and more) - faces challenging questions. What exactly is criminal justice? How much of it is a system of law and how much is a collection of situational social practices? What roles do the Constitution and the Supreme Court play? How do race and gender shape outcomes? How does change happen, and what changes or adaptations should be pursued? The New Criminal Justice Thinking addresses the challenges of this historic moment by asking essential theoretical and practical questions about how the criminal system operates. In this thorough and thoughtful volume, scholars from across the disciplines of legal theory, sociology, criminology, critical race theory, and organizational theory offer crucial insights into how the criminal system works in both theory and practice. By engaging both classic issues and new understandings, this volume offers a comprehensive framework for thinking about the modern justice system.


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George Washington: The Wonder of the Age by John Rhodehamel
New Haven: Yale University Press, 2017
Basement E312 .R48 2017

As editor of the award-winning Library of America collection of George Washington's writings and a curator of the great man's original papers, John Rhodehamel has established himself as an authority of our nation's preeminent founding father. Rhodehamel examines George Washington as a public figure, arguing that the man--who first achieved fame in his early twenties--is inextricably bound to his mythic status. Solidly grounded in Washington's papers and exemplary in its brevity, this approachable biography is a superb introduction to the leader whose name has become synonymous with America.


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The Most Noble Adventure by Greg Behrman
New York: Free Press, 2007
Louis B. Sohn Library HC240 .B384 2007

Traces America's four-year diplomatic efforts to help rebuild post-World War II Europe, an endeavor that involved a thirteen-billion-dollar plan and was heavily influenced by political factors. When World War II ended, Europe lay in ruins. Tens of millions had been killed. Ancient cities had been demolished. The economic, financial and commercial foundations of Europe were in shambles. Western Europe's Communist parties--feeding off want and despair--were flourishing as Stalin's Soviet Union emerged as the sole superpower on the continent. The Marshall Plan was a four-year, $13 billion (more than $100 billion in today's dollars) plan to provide assistance for Europe's economic recovery. More than an aid program, it sought to modernize Western Europe's economies and launch them on a path to prosperity and integration; to restore Western Europe's faith in democracy and capitalism; to enmesh the region firmly in a Western economic association and eventually a military alliance. It was the linchpin of America's strategy to meet the Soviet threat. It helped to trigger the Cold War and, eventually, to win it. Author Behrman brings this vital and dramatic epoch to life and animates the personalities that shaped it.


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We Wish to Inform You That Tomorrow We Will Be Killed with Our Families: Stories from Rwanda by Philip Gourevitch
New York: Farrar, Straus, and Giroux, 1998
Louis B. Sohn Library DT450.435 .G68 1998

An unforgettable firsthand account of a people's response to genocide and what it tells us about humanity. This remarkable debut book chronicles what has happened in Rwanda and neighboring states since 1994, when the Rwandan government called on everyone in the Hutu majority to murder everyone in the Tutsi minority. Though the killing was low-tech--largely by machete--it was carried out at shocking speed: some 800,000 people were exterminated in a hundred days. A Tutsi pastor, in a letter to his church president, a Hutu, used the chilling phrase that gives Philip Gourevitch his title. With keen dramatic intensity, Gourevitch frames the genesis and horror of Rwanda's "genocidal logic" in the anguish of its aftermath: the mass displacements, the temptations of revenge and the quest for justice, the impossibly crowded prisons and refugee camps. Through intimate portraits of Rwandans in all walks of life, he focuses on the psychological and political challenges of survival and on how the new leaders of postcolonial Africa went to war in the Congo when resurgent genocidal forces threatened to overrun central Africa. Can a country composed largely of perpetrators and victims create a cohesive national society? This moving contribution to the literature of witness tells us much about the struggle everywhere to forge sane, habitable political orders, and about the stubbornness of the human spirit in a world of extremity.


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“A Great Power of Attorney”: Understanding the Fiduciary Constitution by Gary Lawson and Guy Seidman
Lawrence, Kansas: University Press of Kansas, 2017
Balcony KF4541 .L347 2017

What kind of document is the United States Constitution and how does that characterization affect its meaning? Those questions are seemingly foundational for the entire enterprise of constitutional theory, but they are strangely under-examined. The authors propose that the Constitution, for purposes of interpretation, is a kind of fiduciary, or agency, instrument. The founding generation often spoke of the Constitution as a fiduciary document-or as a “great power of attorney,” in the words of founding-era legal giant James Iredell. Viewed against the background of fiduciary legal and political theory, which would have been familiar to the founding generation from both its education and its experience, the Constitution is best read as granting limited powers to the national government, as an agent, to manage some portion of the affairs of “We the People” and its “posterity.”

What follows from this particular conception of the Constitution-and is of greater importance-is the question of whether, and how much and in what ways, the discretion of governmental agents in exercising those constitutionally granted powers is also limited by background norms of fiduciary obligation. Those norms, the authors remind us, include duties of loyalty, care, impartiality, and personal exercise. In the context of the Constitution, this has implications for everything from non-delegation to equal protection to so-called substantive due process, as well as for the scope of any implied powers claimed by the national government. In mapping out what these imperatives might mean-such as limited discretionary power, limited implied powers, a need to engage in fair dealing with all parties, and an obligation to serve at all times the interests of the Constitution's beneficiaries, the authors offer a clearer picture of the original design for a limited government.