2008 was a prolific year for HLS scholars. Here is a roundup of this year’s faculty books.
“Security in Paraguay: Analysis and Responses in Comparative Perspective” (Harvard University Press, 2008) is based on two years of research by the HLS International Human Rights Clinic and is written by Clinical Professor James Cavallaro, Jacob Kopas ’07, Yukyan Lam ’07, Timothy Mayhle ’08 and Paraguayan law professor Soledad Villagra de Biedermann LL.M. ’92. It addresses the growing sense of insecurity in Paraguay over the past decade as the country has continued its transition from authoritarian to democratic rule. The authors attempt to refute the view that the newly implemented criminal reforms and procedural guarantees are resulting in more crime.
“Is There a Right to Remain Silent?: Coercive Interrogation and the Fifth Amendment After 9/11” (Oxford University Press, 2008), Professor Alan Dershowitz argues for a reinterpretation of the Fifth Amendment that takes into account new measures used by government officials to prevent terrorism.
In “Finding Jefferson: A Lost Letter, a Remarkable Discovery, and the First Amendment in an Age of Terrorism” (Wiley, 2007), Professor Alan Dershowitz contemplates modern-day First Amendment dilemmas—such as government censorship of imams whose preaching might incite terrorism—through the lens of Jefferson’s stated beliefs about religious and political speech.
In “The Case Against Israel’s Enemies: Exposing Jimmy Carter and Others Who Stand in the Way of Peace” (Wiley, 2008), Professor Alan Dershowitz takes to task those he considers Israel’s most dangerous foes, from individuals to foreign governments, “who wield the power—political, academic, religious and military—” to challenge the country’s existence.
Professor Charles Donahue’s “Law, Marriage, and Society in the Later Middle Ages, (Cambridge University Press, 2008) explores a series of decisions by Pope Alexander III (1159-1181) that became the basis of marriage law in Western Europe for the next three centuries. A legal and social history, Donahue’s book reveals not just evolving laws, but late medieval men and women manipulating each other and the courts. The greatest manipulator provides the book’s greatest irony. Donahue writes that “the modern idea of marriage based on romantic love received a powerful legal stimulus from a celibate pope of the 12th century.”
In “United States Antitrust Law and Economics” (Foundation Press, 2008) Professor Einer Elhauge ’86follows up on “Global Antitrust Law and Economics” with an antitrust casebook focused on the United States. After an extensive introductory chapter dealing with the framework of the basic economic issues and an overview of the laws and remedial structures, he covers topics including horizontal agreements, unilateral conduct, vertical arrangements, proving agreement or concerted action, and mergers.
Most judges, faced with the task of interpreting unclear statutes, want to do the right thing, saysProfessor Einer Elhauge ’86. His book, Statutory Default Rules: How to Interpret Unclear Legislation (Harvard University Press, 2008), offers a fresh approach to interpreting ambiguous legislation, by focusing on what judges should do once the legal materials fail to resolve the interpretive question.
In his latest book, “The Fall and Rise of the Islamic State”(Princeton University Press, 2008), Professor Noah Feldman seeks to explain the rapid growth of Islamist political parties calling for the establishment of Sharia as the governing law. He argues it is a backlash against the autocratic rule that has dominated much of the Arab world since the disappearance of the one institution that previously counterbalanced executive authority: the scholarly class.
The power of City Hall is a myth sometimes, and Professor Gerald E. Frug ’63 and Professor David J. Barron ’94 explain why in a new book, “City Bound: How States Stifle Urban Innovation,” (Cornell University Press, 2008). The authors look at how state law determines what cities can and cannot do and compare the laws for seven U.S. cities—Boston, New York, Atlanta, Chicago, Denver, San Francisco and Seattle—and analyze which legal structures stimulate city growth and autonomy and which ones stifle it. The book grew out of an earlier study of Boston laws. “The intent is to generalize the Boston project so people understand how city power is organized around the country and the world,” says Frug.
In “Living the Policy Process” (Oxford University Press, 2008), Professor Philip B. Heymann ’60outlines policy-makers’ struggle to influence government decisions. Heymann offers an inside look into the policy process in the Reagan, first Bush and Clinton administrations, describing the constantly evolving conditions that government officials face as they attempt to shape the policy agenda.
“Fiscal Challenges: An Interdisciplinary Approach to Budget Policy” (Cambridge University Press, 2008)is edited by Professor Howell Jackson ’82, with Elizabeth Garrett and Elizabeth Graddy, and with a contribution from Professor Adrian Vermeule ’93. The collection analyzes recent developments in budget policy at the state level and in the European Union, and also includes in-depth explorations of congressional budget procedures, as well as the economics of federal deficits and debt.
In “The Theory of Taxation and Public Economics” (Princeton University Press, 2008), Professor Louis Kaplow ’81 does not seek to champion particular policies or analytical results but rather to urge a new way of thinking. “This book develops and applies a unifying framework for the analysis of taxation and related subjects in public economics,” he writes, offering what he calls “an integrated view” of how tax policy can best be analyzed.
“Legal Reasoning: Collected Essays” (Davies Group, 2008) features four of Professor Duncan Kennedy’s essays, written over the course of 20 years, that present accounts of legal reasoning as engaged in by lawyers, judges and academics. A leading theorist of the critical legal studies movement, Kennedy brings together the insights of American legal realism with continental phenomenology and semiotics. The book also includes a critique of current European legal theory.
Professor Randall Kennedy’s book, “Sellout: The Politics of Racial Betrayal” (Pantheon Books, 2008), examines a word charged with racial meaning in black America. Throughout his 24-year career at Harvard Law School, Kennedy has developed a reputation as a professor who is not afraid to challenge orthodoxies. “I’ve had a long-standing interest in questions about group loyalty,” says Kennedy. “I have faith that people make better decisions when they have good information.”
In “Just Schools: Pursuing Equality in Societies of Difference” (Russell Sage Foundation, 2008), legal scholars, educators and social scientists examine different methods of fostering equality. Edited by Professor Martha Minow, Richard A. Shweder and Hazel Rose Markus, the book offers essays combining empirical research with ethnographic accounts. Minow’s essay explores the impact of school choice reforms on equal educational opportunities.
“Access Denied: The Practice and Policy of Global Internet Filtering” (MIT Press, 2008), edited by Professor John Palfrey ’01, Visiting Professor Jonathan Zittrain ’95, Ronald Deibert and Rafal Rohozinski, looks at the countries, corporations and intelligence agencies that are filtering and blocking Internet content.
“Born Digital: Understanding the First Generation of Digital Natives” (Basic Books, 2008) is a new book co-written byProfessor John Palfrey and Urs Gasser LL.M. ’03, director of the Research Center for Information Law at the University of St. Gallen, in Switzerland. It examines the digital divide between children who accept the Internet as basic to relationships, learning, work, and more, and their parents who don’t understand the cyberworld and often react in fear.
The two-volume “Handbook of Law and Economics” (North Holland, 2007), edited by Professor Steven Shavell and A. Mitchell Polinsky, covers topics such as corporate governance, bankruptcy law, antitrust, contract law and property law. It features contributions from numerous specialists—including Professors Kathryn Spier and Louis Kaplow ’81 as well as Shavell.
Professor Cass Sunstein ’78 and University of Chicago economist Richard Thaler’s new book,“Nudge: Improving Decisions About Health, Wealth, and Happiness” (Yale University Press, 2008)explores the idea of nudging people toward making better choices by creating clear, well-designed sets of options that acknowledge and offset human idiosyncrasies. While Sunstein and Thaler agree that nudging may be paternalistic, they believe it can be done without taking away freedom of choice. “Putting the fruit at eye level,” in a school cafeteria line, they say, “counts as a nudge. Banning junk food does not.”
In a new book, “The Invisible Constitution” (Oxford University Press, 2008), HLS Professor Laurence H. Tribe ’66 writes that The Constitution is more than the words on the parchment. On the contrary, many of the bedrock principles Americans consider constitutionally ordained are nowhere in the document’s text. Tribe explains that the Constitution’s real power rests in “a set of fundamental beliefs and traditions that operate in a binding way” and suggests that this may have been precisely what the framers had in mind. Historian Doris Kearns Goodwin called the book “breathtaking in its originality.”
In “I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases” (Beacon Press, 2008), Professor Mark Tushnet looks at arguments that didn’t carry the day in 16 landmark cases—from Dred Scott to Lawrence v. Texas. Putting the opinions in social and political context, Tushnet explores how American constitutional history might be different had the “nays” prevailed.
Vikram Amar and Professor Mark Tushnet’s “Global Perspectives on Constitutional Law” (Oxford University Press, 2008) provides a comparative view on constitutional issues, including property rights, abortion rights, regulation of hate speech, regulation of campaign finance, and religious freedom. It includes foreign case materials and selections by contributors from a variety of ideological and demographic backgrounds.
In Harvard Law School Professor Adrian Vermeule’s new book, “Law and the Limits of Reason” (Oxford, 2008), he argues that because of limitations on human reasoning, large modern legislatures with diverse memberships and complex internal structures are the most effective lawmaking institutions. Vermeule applies his theory to the current economic crisis, asking, “Is it desirable for major questions of economic policy to be decided by a small group of people?”
In “The Future of the Internet And How to Stop It” (Yale University Press,2008), Professor Jonathan Zittrain praises the “generativity” of the Internet and PCs – their ability to absorb new programs and technologies so the cyberworld is in a constant state of reinvention – but worries about the movement toward controlled technologies.