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Featured Acquisitions - September & October 2016

 

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The Coming of the Nixon Court: The 1972 and the Transformation of Constitutional Law by Earl M. Maltz
Lawrence, Kansas: University Press of Kansas, 2016
Balcony KF8742 .M2627 2016

Beginning with Brown v. Board of Education and continuing with a series of decisions that, among other things, expanded the reach of the Bill of Rights, the Supreme Court that Richard Nixon inherited had presided over a progressive revolution in the law. But by 1972 Nixon had managed to replace four members of the so-called Warren Court with justices more aligned with his own law-and-order conservatism. Nixon's appointees--Warren Burger as Chief Justice and Harry Blackmun, Lewis Powell, and William Rehnquist as associate justices--created a politically diverse bench, one that included not only committed progressives and conservatives, but also justices with a wide variety of more moderate views. The addition of the Nixon justices dramatically changed the trajectory of American constitutional jurisprudence with ramifications continuing to this day. This book is an account of the actions of the "Nixon Court" during the 1972 term--a term during which one of the most politically diverse benches of the era would confront a remarkably broad array of issues with major implications for the future of constitutional law. By looking at the term's cases--most notably Roe v. Wade , but also those addressing school desegregation, criminal procedure, obscenity, the rights of the poor, gender discrimination, and aid to parochial schools--Earl Maltz offers a detailed picture of the unique interactions behind each decision. His book provides the reader with a rare close-up view of the complexity of the forces that shape the responses of a politically diverse Court to ideologically divisive issues--responses that, taken together, would shape the evolution of constitutional doctrine for decades to come.


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Against the Death Penalty by Justice Stephen Breyer
Washington, D.C.: Brookings Institution Press, 2016
Balcony KF9227.C2 B74 2016

A landmark dissenting opinion arguing against the death penalty. Does the death penalty violate the Constitution? In Against the Death Penalty, Justice Stephen Breyer argues that it does; that it is carried out unfairly and inconsistently and, thus, violates the ban on "cruel and unusual punishments" specified by the Eighth Amendment to the Constitution. "Today's administration of the death penalty," Breyer writes, "involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty's penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use." This volume contains Breyer's dissent in the case of Glossip v. Gross , which involved an unsuccessful challenge to Oklahoma's use of a lethal-injection drug because it might cause severe pain. Justice Breyer's legal citations have been edited to make them understandable to a general audience, but the text retains the full force of his powerful argument that the time has come for the Supreme Court to revisit the constitutionality of the death penalty. Breyer was joined in his dissent from the bench by Justice Ruth Bader Ginsburg. Their passionate argument has been cited by many legal experts including fellow Justice Antonin Scalia--as signaling an eventual Court ruling striking down the death penalty. A similar dissent in 1963 by Breyer's mentor, Justice Arthur J. Goldberg, helped set the stage for a later ruling, imposing what turned out to be a four-year moratorium on executions.


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The Age of Deference: The Supreme Court, National Security and the Constitutional Order by David Rudenstine
New York, NY: Oxford University Press, 2016
Balcony KF7209 .R83 2016

In October 1948 - one year after the creation of the U.S. Air Force as a separate military branch - a B-29 Superfortress crashed on a test run, killing the plane's crew. The plane was constructed with poor materials, and the families of the dead sued the U.S. government for damages. In the case, the government claimed that releasing information relating to the crash would reveal important state secrets, and refused to hand over the requested documents. Judges at both the U.S. District Court level and Circuit level rejected the government's argument and ruled in favor of the families. However, in 1953, the Supreme Court reversed the lower courts' decisions and ruled that in the realm of national security, the executive branch had a right to withhold information from the public. Judicial deference to the executive on national security matters has increased ever since the issuance of that landmark decision. Today, the government's ability to invoke state secrets privileges goes unquestioned by a largely supine judicial branch.

David Rudenstine's The Age of Deference traces the Court's role in the rise of judicial deference to executive power since the end of World War II. He shows how in case after case, going back to the Truman and Eisenhower presidencies, the Court has ceded authority in national security matters to the executive branch. Since 9/11, the executive faces even less oversight. According to Rudenstine, this has had a negative impact both on individual rights and on our ability to check executive authority when necessary. Judges are mindful of the limits of their competence in national security matters; this, combined with their insulation from political accountability, has caused them in matters as important as the nation's security to defer to the executive. Judges are also afraid of being responsible for a decision that puts the nation at risk and the consequences for the judiciary in the wake of such a decision. Nonetheless, The Age of Deference argues that as important as these considerations are in shaping a judicial disposition, the Supreme Court has leaned too far, too often, and for too long in the direction of abdication. There is a broad spectrum separating judicial abdication, at one end, from judicial usurpation, at the other, and The Age of Deference argues that the rule of law compels the court to re-define its perspective and the legal doctrines central to the Age.


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The Curious Case of Kiryas Joel: The Rise of a Village Theocracy and the Battle to Defend the Separation of Church and State by Louis Grumet with John Caher
Chicago, Illinois: Chicago Review Press, 2016
Balcony and Online KF228.K565 G78 2016

Twenty years ago, in the middle of the night and on the last day of the legislative session, the New York State Legislature created a publicly funded school district to cater to the interests of a religious sect called the Satmar, an insular group of Hasidic Jews that objects to, among other things, female school bus drivers. The rapidly growing sect had bought land in rural Upstate New York, populated it solely with members of its faction, and created a village called Kiryas Joel that exerted extraordinary political pressure over both political parties. Marking the first time in American history that a governmental unit was established for a religious group, the legislature's action prompted years of litigation that eventually went to the US Supreme Court. As today's Supreme Court signals its willingness to view a religious viewpoint like any other speech and accord it equal protection, the 1994 case, Board of Education of Kiryas Joel Village School District v. Grumet , stands as the most important legal precedent in the fight to uphold the separation of church and state.

In The Curious Case of Kiryas Joel, plaintiff Louis Grumet opens a window onto the Satmar Hasidic community, where language, customs, and dress have led to estrangement from and clashes with neighboring communities, and details the inside story of his fight for the First Amendment and against New York's most powerful politicians. Informed by numerous interviews with key figures such as Governor George Pataki, media accounts, court transcripts, and more, The Curious Case of Kiryas Joel not only tantalizes with a peek at cynical power politics driven by votes and Supreme Court justice squabbling and negotiation; it also provides an important demonstration of how a small, insular, and politically savvy religious group can grasp legal and political power. This story--a blend of politics, religion, cultural clashes, and constitutional tension--is an object lesson in the ongoing debate over freedom of versus freedom from religion.


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The Courts, the Ballot Box and Gay Rights: How Our Governing Institutions Shape the Same-Sex Marriage Debate by Joseph Mello
Lawrence, Kansas: University Press of Kansas, 2016
Balcony KF539 .M45 2016

If the same-sex marriage debate tells us one thing, it's that rights do not exist in a vacuum. What works for one side at the ballot box often fails in the courtroom. Conservative opponents of same-sex marriage used appeals to religious liberty and parental rights to win ballot measure campaigns, but could not duplicate this success in court. Looking at the same-sex marriage debate at the ballot box and in the courts, this timely book offers unique insights into one of the most fluid social and legal issues of our day--and into the role of institutional context in how rights are used. Why, Joseph Mello asks, did conservative opponents of same-sex marriage enjoy such an advantage when debating this issue in the popular arena of a ballot measure campaign? And why were they less successful at mobilizing the language of rights in the courts? His analysis shows us that rights don't just entitle us to resources; they also shape the way we see ourselves and are perceived by others. Thus, by using the language of rights to frame their cause, conservative opponents of same-sex marriage were able to construe themselves as victims of oppression, their religious and moral beliefs under threat.

The same language, however, proved less useful, or even counterproductive, in courtrooms, Mello concludes, because the court's norms and constraints force arguments to undergo more searching scrutiny--and rights-based arguments against same-sex marriage contain discriminatory stereotypes that cannot be supported with evidence. In its analysis of the same-sex marriage issue, The Courts, the Ballot Box, and Gay Rights provides insights that illuminate some of the most salient rights-based issues of our time--including affirmative action, abortion, immigration, and drug policy. The book offers a new way of understanding how such issues are decided, and how important context can be in determining the outcome.


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Bright, Infinite Future: A Generational Memoir on the Progressive Rise by Mark Green
New York: St. Martin's Press, 2016
Basement E839.5 .G744 2016

Blending the historical, biographical and political, the wide-ranging Bright, Infinite Future describes how the values of the '60s are creating a new progressive majority in '16. The multi-faceted Mark Green--bestselling author, public interest lawyer and elected official--is our guide through contemporary American politics as Nader launches the modern consumer movement; Clinton wins the 1992 New York primary and therefore the nomination; and Green loses the closest NYC mayoral election in a century to Bloomberg after 9/11 in a perfect storm of money, terrorism, and race. As Public Advocate, Green is Mayor Giuliani's bête noir, exposing NYPD's racial profiling, killing off Joe Camel, and then running against a "Murderer's Row" of Cuomo, de Blasio, Schumer, and Bloomberg. Starting with the consequential movements of the '60s, Green shows how a rising tide of minority and millennial voters, GOP's lurch from mainstream to extreme, and the contrast between the presidencies of Bush and Clinton Obama are leading to a new era of "Progressive Patriotism" built on four cornerstones: an Economy-for-All, Democracy-for-All, Compact on Race & Justice, and Sustainable Climate. Full of behind-the-scenes stories about bold-faced names, this will be the 2016 book for liberals looking to a "bright, infinite future" (Leonard Bernstein), conservatives wanting to know what they're up against, and readers who want to know "what-it-takes" in the arena.


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The Myth of the Litigious Society: Why We Don’t Sue by David M. Engel
Chicago: The University of Chicago Press, 2016
Balcony KF1251 .E54 2016

Why do Americans seem to sue at the slightest provocation? The answer may surprise you: we don't! For every "Whiplash Charlie" who sees a car accident as a chance to make millions, for every McDonald's customer to pursue a claim over a too-hot cup of coffee, many more Americans suffer injuries but make no claims against those responsible or their insurance companies. The question is not why Americans sue but why we don't sue more often, and the answer can be found in how we think about injury and personal responsibility. With this book, David M. Engel demolishes the myth that America is a litigious society. The sobering reality is that the vast majority of injury victims--more than nine out of ten--rely on their own resources, family and friends, and government programs to cover their losses. When real people experience serious injuries, they don't respond as rational actors. Trauma and pain disrupt their thoughts, and potential claims are discouraged by negative stereotypes that pervade American television and popular culture. (Think Saul Goodman in Breaking Bad, who keeps a box of neck braces in his office to help clients exaggerate their injuries.)

Cultural norms make preventable injuries appear inevitable--or the victim's fault. We're taught to accept setbacks stoically and not blame someone else. But this tendency to "lump it" doesn't just hurt the victims; it hurts us all. As politicians continue to push reforms that miss the real problem, we risk losing these claims as a way to quickly identify unsafe products and practices. Because injuries disproportionately fall on people with fewer resources, the existing framework creates a social underclass whose needs must be met by government programs all citizens shoulder while shielding those who cause the harm. It's time for America to have a more responsible, blame-free discussion about injuries and the law. With The Myth of the Litigious Society, Engel takes readers clearly and powerfully through what we really know about injury victims and concludes with recommendations for how we might improve the situation.


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The Codex of Justinian: A New Annotated Translation, with Parallel Latin and Greek Text edited by Bruce W. Frier
Cambridge, United Kingdom; New York: Cambridge University Press, 2016
Basement KJA1192.2 2016

The Codex of Justinian is, together with the Digest, the core of the great Byzantine compilation of Roman law called the Corpus Iuris Civilis. The Codex compiles legal proclamations issued by Roman emperors from the second to the sixth centuries CE. Its influence on subsequent legal development in the medieval and early modern world has been almost incalculable. But the Codex has not, until now, been credibly translated into English. This translation, with a facing Latin and Greek text (from Paul Krüger's ninth edition of the Codex), is based on one made by Justice Fred H. Blume in the 1920s, but left unpublished for almost a century. It is accompanied by introductions explaining the background of the translation, a bibliography and glossary, and notes that help in understanding the text. Anyone with an interest in the Codex, whether an interested novice or a professional historian, will find ample assistance here.


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The Supreme Court on Unions: Why Labor Law is Failing American Workers by Julius G. Getman
Ithaca: ILR Press, an imprint of Cornell University Press, 2016
Balcony KF3389 .G48 2016

Labor unions and courts have rarely been allies. From their earliest efforts to organize, unions have been confronted with hostile judges and antiunion doctrines. In this book, Julius G. Getman argues that while the role of the Supreme Court has become more central in shaping labor law, its opinions betray a profound ignorance of labor relations along with a persisting bias against unions. In The Supreme Court on Unions, Getman critically examines the decisions of the nation's highest court in those areas that are crucial to unions and the workers they represent: organizing, bargaining, strikes, and dispute resolution. As he discusses Supreme Court decisions dealing with unions and labor in a variety of different areas, Getman offers an interesting historical perspective to illuminate the ways in which the Court has been an influence in the failures of the labor movement. During more than sixty years that have seen the Supreme Court take a dominant role, both unions and the institution of collective bargaining have been substantially weakened. While it is difficult to measure the extent of the Court s responsibility for the current weak state of organized labor and many other factors have, of course, contributed, it seems clear to Getman that the Supreme Court has played an important role in transforming the law and defeating policies that support the labor movement. "


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Love Unites Us: Winning the Freedom to Marry in America edited by Kevin M. Cathcart and Leslie J. Gabel-Brett
New York: The New Press, 2016
Balcony KF539 .L68 2016

Love Unites Us brings together firsthand accounts from the attorneys and advocates who brought the historic cases that secured the freedom to marry for American same-sex couples. It comprises the history of activists' passion and persistence in the struggle for marriage rights for same-sex couples in the United States, told in the words of those who waged the battle. With compelling stories from leading attorneys and activists, Love Unites Us explains how gay and lesbian couples achieved the right to marry in the United States.