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The Nine: Inside the Secret World of the Supreme CourtThe Nine: Inside the Secret World of the Supreme Court by Jeffrey Toobin

My rating: 3 of 5 stars


Sadly not the trashy gossip fest I was in the mood for. I wanted either another hundred pages discussing the court's role in the political system and propounding a new theory of case analysis, or I wanted some juicy judicial sexploits. Sadly, I got neither. The "revelations" in this book are nothing new if you pay a little attention to the court – Scalia and Ginsburg were besties, Thomas has a bizarre and alarming worldview, etc.

Still, the lay reader would probably enjoy this as a portrait of personalities, and for the capsule histories of momentous cases from the Reagan years to about 2006. (Though this book did lead me to discover that I can still recite footnote 4 of carolene Products from memory, which, honestly, I'd be happier not knowing that about myself).

Anyway, this didn't change my opinions of anyone. You don't catch me agreeing with Scalia very often, but I am in complete sympathy with his opinion of Kennedy. I remember when I was putting together my constitutional law notes – I had this beautiful 70 page outline with case holdings and capsule dissents, and at the end of every statement of a Kennedy holding I wrote, whatever the fuck that's supposed to mean. My feelings on O'connor are complicated, and I suspect Toobin would say the same, so those sections worked well for me. And of course my opinions on Roberts and Alito were formed realtime – I actually worked on a team that vetted the short list of nominees that leaked that summer for a civil rights organization, which sounds roughly a billionty times sexier than it actually was.

So this was well researched and diverting, but ultimately inconsequential for me.




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Thus Was Adonis Murdered (Hilary Tamar Mystery, #1)Thus Was Adonis Murdered by Sarah Caudwell

My rating: 4 of 5 stars


I always feel very clever when I find something brilliant and obscure, even when all I did was take a recommendation (thanks, Kate Nepveu!). A series of British mysteries, starring a brilliant but sometimes hapless collection of young barristers and an Oxford tutor who is either remarkably clever or remarkably nosy, depending on whom you ask.



What a delight. Rollickingly funny in places, with a particularly deft touch for letter writing. That distinctively British slant of straight-faced absurdity, if you know what I mean. And it’s not until I read books so calmly nonjudgmental of bisexuality and kink as these that I’m reminded how toxic most of the mystery genre really is on the subject. Women who pursue people they want to fuck, and then fuck them to the delight of all involved, and then walk away with no shame or regret – can you imagine? And then at the end, after all the misadventure and assorted amorous shenanigans that don’t make people slutty or cheap or stupid, each of these books turns around and delivers a clever little solution. Something not just smart, but also pointed and a bit painful, so I breathed in carefully through the last couple pages of every one, as the knot of greed or madness or pain came loose.



Ah.





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The Living Constitution (Inalienable Rights) The Living Constitution by David A. Strauss


My rating: 3 of 5 stars
A book about Constitutional interpretation for the interested nonlawyer, arguing for evolving interpretations rather than rooted originalism. Slight, breezy, chatty, with that rare capacity to compress complexities to non-technical language. Which all sounds like a recommendation – and is -- except that going to law school is kind of like accidentally wandering into one of those machines that turns people into Cybermen from Doctor Who: it sticks probes in through your every orifice, replaces half your brain with new circuitry, and rewires the rest to a new sensory pallet of evil that the normal-brained can’t access. Whoa, simile police!

What I mean is that I can’t read popular law books anymore, because they just don’t work on me. I spent this entire book constructing a series of more or less legalistic criticisms, and wasn’t really able to appreciate what it was doing in its own circumscribed domain. Strauss is a brilliant lawyer (and a really great guy, by the way) but he managed not to sound like one for this entire book, which is pretty remarkable, actually.

A few of my criticisms, incidentally, in brief: I disagreed with the substance of the historical counterfactual about the passage of the Equal Rights Amendment resulting in the same framework for evaluating gender discrimination that we have extra-constitutionally now (I think this is just flat wrong), I find the characterizations of Dennis undercut the message about common law constitutional jurisprudence, I thought the book set up some straw man arguments by failing to distinguish absurd original text Originalism and, say, original public meaning Originalism, etc. et lawyer cetera.

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The Madisonian Constitution (The Johns Hopkins Series in Constitutional Thought) The Madisonian Constitution by George Thomas


My rating: 2 of 5 stars
Fneh. The nicest word I can come up with for this book is “opaque.” It’s actually a pretty interesting argument about Constitutional interpretation, but I won’t bother dissecting it here because seriously, when the author said it was the book version of his graduate thesis I went, “ohhhhhhh,” and not in a good way. It’s also one of those books by nonlawyers trying to supersede legal interpretations of something (the Constitution, here) by using the tools of another discipline, which is fine and dandy until you fail to deal with the legal interpretations on their own lexical terms, so you just look like you don’t understand them. Which I think Thomas actually does, for the most part, so. Fneh.

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Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment (Cambridge Historical Studies in American Law and Society) Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment by Michael Vorenberg


My rating: 4 of 5 stars
An excellent history of the Thirteenth Amendment to the U.S. Constitution. I’ve read a lot of dull legal history lately, and this sparkles in comparison without losing an ounce of rigor. Lots of intricate political maneuverings and broad, sweeping social changes laid out with lucid grace. Particularly interesting to me for the discussion of the psychology of Constitutional amendment – depending on who you ask, the Thirteenth was the first amendment to radically revise the (proslavery) original text, or it was just an extension of the intrinsically antislavery document. I think it was the first, myself. This matters because Constitutional scholarship at the time pretty much was originalism – that’s what it would be, when your parents knew the guys who wrote the thing, right? This book is about all the cataclysms and upheavals and reverses that could make the stars and the congressmen align to get the amendment through, with hundreds of thousands dead and pamphlets about the evils of miscegenation on every street corner. As a portrait of a tumultuous time, and as an aid to the largely underground academic movement of Thirteenth Amendment revival scholarship, this book is a great success.

It’s an accidental success in exploring what an extraordinarily white history the Amendment has. And not just in the obvious – all the senators and representatives were white, (almost) all of the voters who elected ratifying bodies were white, the drafters were white. But I think the one major lapse in this book is the way it doesn’t seem really conscious of how the debate it describes is all about white people – about their guilt or their complicity or their racism or their fear. It’s not a blatant failure of the book, because this was, I think, what the debate was like. But the book should know that more consciously.

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Slavery and the Supreme Court, 1825-1861 Slavery and the Supreme Court, 1825-1861 by Earl M. Maltz


My rating: 2 of 5 stars
Straight legal history, with a few side trips into SCOTUS Justice Biography and political history. Dry as dust, and kind of frustrating for the way it gestures casually at the thing I’m actually interested in without following through: the psychology of a legal regime wrestling with slavery and trying to keep the Union together. This book just rattles off some conclusory statements about what each Justice believed of the rightness and legality of slavery, then says something almost glib about recourse to neutral principles for decision-making, without ever really engaging with all the snarled tensions there. And you can’t tell me there aren’t historical documents.

To be fair, other people have tackled that project, and this book was – I think – deliberately meant as a purely legal historical project. I just happened not to find it useful or interesting.

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Beyond the Formalist-Realist Divide: The Role of Politics in Judging Beyond the Formalist-Realist Divide: The Role of Politics in Judging by Brian Z. Tamanaha


My rating: 3 of 5 stars
Not for the nonlawyers, because if you haven't gotten at least a three year law school dose of legal history with the traditional story about the realists and their politics of law taking over from the stodgy old formalists, it won't mean a damned thing.

If you have been to law school, the first half of this book is a fantastic revisionist counterfactual, calling into question everything we're taught about Holmes and Cardozo and Pound and that entire lot. Tamanaha leans on the primary sources to explain how the idea of formalism was actually invented by radical realists, and that in fact judges as far back as the 1850's candidly discuss the role of politics and indeterminacy in judging. That part is fascinating and illuminating. I was less thrilled with the second half, which discusses at length how the quantitative study of judging has imported this false intellectual dichotomy to its detriment, and its biased studies are misinterpreted in the service of disproving formalism, which doesn't really exist, anyway. Fine, but the use of the tools of historical analysis to try to take down social science methodology was just wrong. You don't get to complain about bias inherited from a historical narrative, and then suggest the answer is to supply a second narrative. That entirely misses the point, which is that social science methodology needs to be critiqued with statistics and actual analysis. Sigh.

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Breaking the Vicious Circle: Toward Effective Risk Regulation Breaking the Vicious Circle: Toward Effective Risk Regulation by Stephen Breyer


My rating: 3 of 5 stars
I'm snowed in and I have galloping bronchitis, so naturally I read Justice Breyer on risk regulation. Like you do.

A tiny, non-technical, non-legal book about improving the spotty and inconsistent U.S. record on risk regulation, particularly toxins and carcinogens. Breyer is lucid and readable as he sketches out the common problems at a basic level – dueling regulatory regimes, the last mile problem, etc. – and how to fix them – a new system more scientific and centralized than what OIRA does now. Relevant and accurate even after fifteen years, and worth reading, because this is stuff a lot of people don't know about. But if you're like me and you've read all the more technical, more legalistic stuff – Graham, Sunstein, Calabresi, etc. – this adds nothing new and actually passes very lightly over issues like why spending money to save lives often costs lives in other arenas.

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Rehabilitating Lochner Rehabilitating Lochner by David E. Bernstein


My rating: 4 of 5 stars
Read in manuscript. This is coming out late this year, I think, though there isn't a pub date yet. Regardless, I think it's going to make a splash when it does come out, at least within the specialized pond of legal academia and intellectual history.

This book gathers and carries forward a lot of the counter-historical work done to try and roll back a lot of the Lochner v. New York hate we've all been spoon-fed in law school. He does a great job with the history of the case and the intellectual tides of the time, with the general goal of arguing that the liberty of contract crowd wasn't just out for big business over the little guy, but was actually drawing on some long-standing natural law principles. The book then does a whirlwind through women's rights, the early segregation cases, the early civil liberties stuff like Pierce v. Society of Sisters and forward to reproductive rights and the vilification of substantive due process. He connects up Lochner with a lot of the later civil liberties work in order to literally reverse how most of us presume the line actually runs -- from the Progressives, the anti-lochnerites.

It's a cracking read, as these things go, hampered in places by its revisionist project – it spends too much time on what it's arguing against, rather than in straight history, and is thus less convincing in places. Still, totally worth it if you're, you know, one of the slice of people who have any idea what I've just been talking about, and the tinier slice who actually give a damn.

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Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey Becoming Justice Blackmun: Harry Blackmun's Supreme Court Journey by Linda Greenhouse


My rating: 3 of 5 stars
More history than biography, written almost entirely on the basis of Blackmun's recently unsealed papers (he kept everything). It's a bit of a weird book because of that. The opening biographical sketches getting Blackmun to his Scotus appointment are very cursory, as these things go, and the real meat of the book is the themed sections on abortion and Blackmun's authorship of Roe, then the death penalty through Greg v. Ga. and beyond, and to women's rights (which were, by the way, completely unrelated to the abortion issue for Blackmun, at least at first).

Ah, Blackmun. Thin-skinned, tetchy, precise, finicky, rigorous, occasionally quite funny. That comes through in this book, in his personal notes, casual correspondence, editorial marginalia on letters and drafts. What doesn't really come through is the bigger picture. You'd really think that the personal papers would give the best view of how Blackmun, the Nixon appointee, swung in the last third of his life from voting almost entirely with the conservative Burger end of the court to almost entirely with Brennan and often Marshall. But Blackmun, who wrote down nearly everything else, didn't really explain that, and neither does this book, quite. So the focus on the Blackmun lens is interesting, but not as illuminating as I thought it would be, and the whole book is a bit lighter weight than I was hoping.

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Americans with Disabilities Americans with Disabilities by Leslie Pickering Francis


My rating: 3 of 5 stars
A collection of themed essays evaluating the ADA ten years out. Interdisciplinary and generally strong, with pieces on moral philosophy, law, sociology, and medicine. But ultimately I found it uneven and frustrating in that way a book written predominately by able-bodied academics is when I'm a disabled occasional political activist.

Some pieces were excellent – Ron Amanson's "Biological Normality and the ADA" deconstructs the categories of normal and abnormal function in ways analogous to previous deconstructions of race as a biological category. But then we have pieces like Lenard Davis's "Go to the Margins of the Class: Hate Crimes and the ADA," which is terrifying as it discusses the epidemic of sexual and physical violence against people with disabilities, and utterly jaw-droppingly enraging as it blithely proclaims an end to racial and gender discrimination in this country. I just . . . I don't even!

It is a good collection, and well organized. I found most helpful the sections on medicine – healthcare cost-rationing as a violation of the ADA, wrongful birth and wrongful life lawsuits ('if my doctor had told me x, I would have had an abortion,'), etc. I got bogged down in the opening sections, because I have a pretty low tolerance for political philosophy these days. I am beginning to have a knee-jerk near-allergic reaction to Rawls and theories of justice and historical counterfactuals. These days they make me want to shake people and explain what the word "empiricism" actually means, and tell them to get down from the ivory tower for a few days and go feed the fucking homeless or something. 'Hem, where was I?

Right, good book, a bit frustrating, a bit written about disprivilige from a place of privilege, you know the drill.

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The Supreme Court in the Intimate Lives of Americans: Birth, Sex, Marriage, Childrearing, and Death The Supreme Court in the Intimate Lives of Americans: Birth, Sex, Marriage, Childrearing, and Death by Howard Ball


My review


rating: 3 of 5 stars
A review of SCOTUS privacy cases, heavy on the interpersonal back-and-forth between the Justices in closed conference, and light on legal analysis beyond the merely descriptive. Which might make this a good book for the lay reader, but I have my doubts – there's an awful lot of procedural knowledge assumed, and the quick two-step through first principles (substantive due process, the transition from Lochner to West Coast Hotel, etc.) might actually be more confusing than anything. Then again, one thing law school has done to me is make it very difficult to remember how nonlawyers think, so I could be completely wrong on that.



Anyway, nice enough presentation of highly topical issues, with a very simple argument about the personal nature of decision-making in privacy cases. Most interesting for those eras where judicial papers have been unsealed, and less so for the more recent cases.




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I’ve been pushing this book at pretty much everyone I saw this past weekend, so a lot of you have already gotten an earful. For the rest of you: find this book, read this book, give it a long hard mull. For it is awesome.

Right, so. The first half of this book deals with the way American law and culture addresses – and mostly fails to address – sex and children. From the unsurprising indictment of sex-ed to the discussions of the misogyny and powerlessness perpetuated by statutory rape laws, it’s a grim but utterly fascinating picture. The second half of the book offers up alternative solutions, snapshots of successful pilot programs, memorable and pointed anecdotes. This book is frank, inclusive, nuanced. Levine is entirely unwilling to leave anything to implication, and her frankness about the reality of the sexualized behavior children display as early as two or three is only part of the reason her road to publication was so rocky, as outlined in the introduction. This is a book about sex and culture and parenting, but it’s also a vicious but controlled screed against conservative politics, social inequality, sexism. It’s about all the things we aren’t doing that could help American children grow up into respectful, responsible sexual partners, and it’s also about all the things we are doing which perpetuate gender inequality and lead to unsafe behavior and even kill our country’s kids.

Levine is a powerful writer, with a real knack for picking effective, thought-provoking statistics. The second half of the book is far more anecdotal than prescriptive, which I didn’t really mind. Partly it’s that this book was -- and is -- groundbreaking as a holistic, unified treatment of the topic, and the research data for some of the suggestions simply doesn’t exist yet. Levine does make some odd stylistic choices – I would have reversed the presentation of the sex-ed material and the chapter on pedophilia and child sexual predators (that’s child predators, as well as the adult kind) but I can see her reasoning. I also would have liked a more complete treatment of child sexual abuse within the family, but honestly that’s not what this book is about.

What this book is about is information. The kind we receive as children is inadequate at best, flat out harmful at worst. Levine argues in concert with a long-held instinct of mine, and she has the research to back it up: exposing children to a saturation of sexual images and information which is positive, diverse, and inclusive is not only healthy, but absolutely essential for saving them grief, pain, and possibly death. And we might just make life better for women and minorities while we’re at it.

Seriously, read this book. Not everyone will agree with all of it. I certainly didn’t – I made a bet with myself halfway through, paused to look up Levine’s biography, and went ‘yep, thought so,’ when her Libertarianism popped up. But this is the sort of book which is meant to sew discussion, and the thought behind it, and maybe some action.

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