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Featured Acquisitions - October 2012

 

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Confidentiality, Transparency, and the U.S. Civil Justice System by Joseph W. Doherty et al
Oxford; New York: Oxford University Press, 2012
KF8700 .C658 2012 Balcony

The lawsuit is the cornerstone of the civil justice system in America, and an open court the foundation of American jurisprudence. In a public setting, we resolve disputes, determine liability, and compensate injuries. In recent decades, however, more civil disputes have been resolved out of court and the outcomes have been kept secret. Fewer than 5 percent of the tens of millions of injury claims annually are actually resolved through a public trial with a jury, and the vast majority are settled out of court or through private forums, such as mediation or arbitration, with undisclosed terms. Some argue that the confidentiality of the system keeps it working efficiently and fairly; others argue that the public is being denied information about hazards that may cause harm and that a public system with no data lacks oversight.
This collection of essays by leading legal scholars is the first book to approach the issue in a multidisciplinary, nonpartisan, and empirical manner. The essays provide empirical analyses and case studies of the impact of greater disclosure on various aspects of the system, ranging from settlement values to fraud, and propose several novel prescriptions for reform. With special attention to the emergence of modern mass litigation, the authors identify a number of benefits to increasing access to information, including decreased fraud, improved public understanding and confidence in the system, and lower transactions costs. The authors make policy recommendations--such as expanding access to existing databases and using technology to create new databases--that increase transparency while protecting the need for privacy.


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America’s Unwritten Constitution: The Precedents and Principles We Live By by Akhil Reed Amar
New York: Basic Books, 2012
KF4541 .A875 2012 Balcony

Despite its venerated place atop American law and politics, our written Constitution does not enumerate all of the rules and rights, principles and procedures that actually govern modern America. The document makes no explicit mention of cherished concepts like the separation of powers and the rule of law. On some issues, the plain meaning of the text misleads. For example, the text seems to say that the vice president presides over his own impeachment trial—but surely this cannot be right. As esteemed legal scholar Akhil Reed Amar explains in America’s Unwritten Constitution, the solution to many constitutional puzzles lies not solely within the written document, but beyond it—in the vast trove of values, precedents, and practices that complement and complete the terse text.
In this sequel to America’s Constitution: A Biography, Amar takes readers on a tour of our nation’s unwritten Constitution, showing how America’s foundational document cannot be understood in textual isolation. Proper constitutional interpretation depends on a variety of factors, such as the precedents set by early presidents and Congresses; common practices of modern American citizens; venerable judicial decisions; and particularly privileged sources of inspiration and guidance, including the Federalist papers, William Blackstone’s Commentaries on the Laws of England, the Northwest Ordinance of 1787, Lincoln’s Gettysburg Address, and Martin Luther King, Jr.’s “I Have a Dream” speech. These diverse supplements are indispensable instruments for making sense of the written Constitution. When used correctly, these extra-textual aids support and enrich the written document without supplanting it.
An authoritative work by one of America’s preeminent legal scholars, America’s Unwritten Constitution presents a bold new vision of the American constitutional system, showing how the complementary relationship between the Constitution’s written and unwritten components is one of America’s greatest and most enduring strengths.


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Rights at Risk: The Limits of Liberty in Modern America by David Shipler
New York: Alfred A. Knopf, 2012
KF4749 .S525 2012 Balcony

David Shipler, a renowned journalist and author of several books about political conditions in the United States, surveys a startling rise in violations or otherwise circumventions of fundamental American rights. He makes the case that these abridgments are not only unjust, but make us less secure and damage our ability to reproduce a democratic society. Over the course of eight chapters he considers the repercussions of violations of freedom of speech, the right to a speedy trial, the right to a lawyer, and our freedom of silence and from self-incrimination. The two final chapters orient themselves to the future by looking at the crack-down on dissent and the intrusion of security culture into schools. The book opens with a re-printing of the bill of rights and ends with an epilogue that envisions building a "Constitutional culture" where we are all advocates of our own and other's rights.


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Cheating Justice by Elizabeth Holtzman with Cynthia L. Cooper
Boston, Mass : Beacon Press, 2012
KF9430 .H65 2012 Balcony

In this follow up to their 2006 volume The Impeachment of of George W. Bush: A Practical Guide for Concerned Citizens former Congresswoman and legal scholar Elizabeth Holtzman and journalist Cynthia Cooper outline the crimes of the Bush administration and argue that it is in the essential interest of the nation and the rule of law that Bush, Cheney and other key officials be prosecuted for their crimes. The work details topics such as the run up to the Iraq war, torture, illegal wiretapping of American citizens, and extraordinary rendition, and argues that direct and immediate prosecution must take place to ensure the rule of law and to prevent further abuses by future administrations.


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Families in Crisis in the Old South: Divorce, Slavery and the Law by Loren Schweninger
Chapel Hill: University of North Carolina Press, 2012
KF505 .S39 2012 Balcony

In the antebellum South, divorce was an explosive issue. As one lawmaker put it, divorce was to be viewed as a form of "madness," and as another asserted, divorce reduced communities to the "lowest ebb of degeneracy." How was it that in this climate, the number of divorces rose steadily during the antebellum era? In Families in Crisis, Loren Schweninger uses previously unexplored records to argue that the difficulties these divorcing families faced reveal much about the reality of life in a slave-holding society as well as the myriad difficulties confronted by white southern families who chose not to divorce.
Basing his argument on almost 800 divorce cases from the southern United States, Schweninger explores the impact of divorce and separation on white families and on the enslaved and provides insights on issues including domestic violence, interracial adultery, alcoholism, insanity, and property relations. He examines how divorce and separation laws changed, how married women's property rights expanded, how definitions of inhuman treatment of wives evolved, and how these divorces challenged conventional mores.


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The Harm in Hate Speech by Jeremy Waldron
Cambridge, Mass.: Harvard University Press, 2012
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Every liberal democracy has laws or codes against hate speech-except the United States. For constitutionalists, regulation of hate speech violates the First Amendment and damages a free society. Against this absolutist view, Jeremy Waldron argues powerfully that hate speech should be regulated as part of our commitment to human dignity and to inclusion and respect for members of vulnerable minorities.
Causing offense-by depicting a religious leader as a terrorist in a newspaper cartoon, for example-is not the same as launching a libelous attack on a group’s dignity, according to Waldron, and it lies outside the reach of law. But defamation of a minority group, through hate speech, undermines a public good that can and should be protected: the basic assurance of inclusion in society for all members. A social environment polluted by anti-gay leaflets, Nazi banners, and burning crosses sends an implicit message to the targets of such hatred: your security is uncertain and you can expect to face humiliation and discrimination when you leave your home.
Free-speech advocates boast of despising what racists say but defending to the death their right to say it. Waldron finds this emphasis on intellectual resilience misguided and points instead to the threat hate speech poses to the lives, dignity, and reputations of minority members. Finding support for his view among philosophers of the Enlightenment, Waldron asks us to move beyond knee-jerk American exceptionalism in our debates over the serious consequences of hateful acts.


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Consent of the Networked: The Worldwide Struggle for Internet Freedom by Rebecca MacKinnon
New York: Basic Books, 2012
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MacKinnon (global Internet policy, New America Foundation) has written a book that reflects her concerns about what will happen to the Internet and the future of freedoms in the Internet era in a very 'big picture' way. And in a way, it could be considered a public awareness campaign for those who want to continue to use Internet technology to express themselves and organize peacefully without censorship or fear of reprisal. The book will interest readers concerned about the intentional or unintentional erosion of Internet-related freedoms and as she refers to them, "the inconvenient truths of the Internet age."


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The Evolution of a Nation: How Geography and Law Shaped the American States by Daniel Berkowitz and Karen B. Clay
Princeton, N.J. : Princeton University Press, 2012
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Although political and legal institutions are essential to any nation's economic development, the forces that have shaped these institutions are poorly understood. Drawing on rich evidence about the development of the American states from the mid-nineteenth to the late twentieth century, this book documents the mechanisms through which geographical and historical conditions--such as climate, access to water transportation, and early legal systems--impacted political and judicial institutions and economic growth.
The book shows how a state's geography and climate influenced whether elites based their wealth in agriculture or trade. States with more occupationally diverse elites in 1860 had greater levels of political competition in their legislature from 1866 to 2000. The book also examines the effects of early legal systems. Because of their colonial history, thirteen states had an operational civil-law legal system prior to statehood. All of these states except Louisiana would later adopt common law. By the late eighteenth century, the two legal systems differed in their balances of power. In civil-law systems, judiciaries were subordinate to legislatures, whereas in common-law systems, the two were more equal. Former civil-law states and common-law states exhibit persistent differences in the structure of their courts, the retention of judges, and judicial budgets. Moreover, changes in court structures, retention procedures, and budgets occur under very different conditions in civil-law and common-law states.
The Evolution of a Nation illustrates how initial geographical and historical conditions can determine the evolution of political and legal institutions and long-run growth.


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FDR and Chief Justice Hughes: The President, the Supreme Court, and the Epic Battle Over the New Deal by James F. Simon
New York: Simon & Schuster, 2012
KF8745.H8 S57 2012 Balcony

By the author of acclaimed books on the bitter clashes between Jefferson and Chief Justice Marshall on the shaping of the nation’s constitutional future, and between Lincoln and Chief Justice Taney over slavery, secession, and the presidential war powers. Roosevelt and Chief Justice Hughes's fight over the New Deal was the most critical struggle between an American president and a chief justice in the twentieth century.
The confrontation threatened the New Deal in the middle of the nation’s worst depression. The activist president bombarded the Democratic Congress with a fusillade of legislative remedies that shut down insolvent banks, regulated stocks, imposed industrial codes, rationed agricultural production, and employed a quarter million young men in the Civilian Conservation Corps. But the legislation faced constitutional challenges by a conservative bloc on the Court determined to undercut the president. Chief Justice Hughes often joined the Court’s conservatives to strike down major New Deal legislation.
Frustrated, FDR proposed a Court-packing plan. His true purpose was to undermine the ability of the life-tenured Justices to thwart his popular mandate. Hughes proved more than a match for Roosevelt in the ensuing battle. In grudging admiration for Hughes, FDR said that the Chief Justice was the best politician in the country. Despite the defeat of his plan, Roosevelt never lost his confidence and, like Hughes, never ceded leadership. He outmaneuvered isolationist senators, many of whom had opposed his Court-packing plan, to expedite aid to Great Britain as the Allies hovered on the brink of defeat. He then led his country through World War II.


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The Religious Roots of the First Amendment: Dissenting Protestants and the Separation of Church and State by Nicholas P. Miller
Oxford; New York: Oxford University Press, 2012
BR115.L28 M55 2012 Basement

Traditional understandings of the genesis of the separation of church and state rest on assumptions about 'Enlightenment' and the republican ethos of citizenship. Nicholas Miller does not seek to dislodge that interpretation but to augment and enrich it by recovering its cultural and discursive religious contexts - specifically the discourse of Protestant dissent. He argues that commitments by certain dissenting Protestants to the right of private judgment in matters of Biblical interpretation, an outgrowth of the doctrine of the priesthood of all believers, helped promote religious disestablishment in the early modern West. This movement climaxed in the disestablishment of religion in the early American colonies and nation. Miller identifies a continuous strand of this religious thought from the Protestant Reformation, across Europe, through the English Reformation, Civil War, and Restoration, into the American colonies. He examines seven key thinkers who played a major role in the development of this religious trajectory as it came to fruition in American political and legal history: William Penn, John Locke, Elisha Williams, Isaac Backus, William Livingston, John Witherspoon, and James Madison. Miller shows that the separation of church and state can be read, most persuasively, as the triumph of a particular strand of Protestant nonconformity - that which stretched back to the Puritan separatist and the Restoration sects, rather than to those, like Presbyterians, who sought to replace the 'wrong' church establishment with their own, 'right' one. The Religious Roots of the First Amendment contributes powerfully to the current trend among some historians to rescue the eighteenth-century clergymen and religious controversialists from the enormous condescension of posterity.