BookTalk

  • September 16, 2014
    BookTalk
    The Birth of American Law
    An Italian Philosopher and the American Revolution
    By: 
    John Bessler

    by John D. Bessler, Associate Professor, University of Baltimore School of Law; Adjunct Professor, Georgetown University Law Center

    Two hundred and fifty years ago, a 26-year-old Italian thinker, Cesare Beccaria, published Dei delitti e delle pene, a book written in his native language. Translated into English three years later as On Crimes and Punishments, Beccaria’s slender, 1764 treatise called for proportion between crimes and punishments, quickly becoming an eighteenth-century bestseller. Also translated into French by André Morellet, the same man who later translated Thomas Jefferson’s Notes on the State of Virginia, Beccaria’s treatise—advocating clear and precise laws and opposing torture—became the first Enlightenment text to advocate the death penalty’s abolition.

    Beccaria’s influence on American law has long been neglected—as has the contribution of the Italian Enlightenment, or Illuminismo, to early American thought. In fact, many of America’s founders studied Italian, were greatly inspired by Beccaria’s book, and read other Italian writers such as Gaetano Filangieri and Giacinto Dragonetti. They invoked Beccaria’s ideas in their speeches and writings and they relied on them in debates and in crafting early American constitutions and laws.  For example, Pennsylvania’s 1776 constitution declared that penal laws “shall be reformed by the legislature of this state, as soon as may be, and punishments made in some cases less sanguinary, and in general more proportionate to the crimes.”

    Beccaria’s book shaped American history. George Washington bought a copy in 1769 and, during the Revolutionary War, wrote Congress that death sentences were too frequent, lamenting “the want of a proper gradation of punishments.” At the Boston Massacre trial in 1770, John Adams forcefully quoted Beccaria’s words in defending British soldiers accused of murder, with his son John Quincy Adams later noting the “electrical effect” of those words. And in Virginia, Thomas Jefferson and James Madison sought to curtail capital offenses by pushing for the adoption of “A Bill for Proportioning Crimes and Punishments in Cases Heretofore Capital.”

  • August 29, 2014
    BookTalk
    What Women Want
    An Agenda For The Women's Movement
    By: 
    Deborah L. Rhode

    by Deborah L. Rhode, the Director of the Center on the Legal Profession, the  E.W. McFarland Professor of Law,  and the Director of the Program on Social Entrepreneurship at Stanford University 

    In a New Yorker cartoon, a woman frostily informs her obviously skeptical husband, “Yes, Harold, I do speak for all women.” This is not a claim any contemporary feminist will readily make. Women do not speak with one voice on women’s issues. But to build a powerful political movement, we have to be prepared to generalize about the interests of women as a group. What would most women want if they were fully informed and free to choose, and the goal was true equality between the sexes? 

    A central problem in securing such gender equality is the “no problem” problem: the lack of consensus that there still is a serious problem, or one that they have any capacity or responsibility to address. Yet on virtually every major dimension of social status, financial well-being, and physical safety, women still fare worse than men. Sexual violence remains common, and reproductive rights are by no means secure. Women assume disproportionate burdens in the home and pay a price in the world outside it.  But these issues are not cultural priorities. What Women Want (Oxford University Press, 2014), argues that this has to change and sets forth a compelling agenda for the women’s movement.

  • July 18, 2014
    BookTalk

    The following interview of Harvard Law School Professor Laurence Tribe about his book Uncertain Justice: The Roberts Court and the Constitution (Laurence Tribe and Joshua Matz, Henry Holt and Co., 2014, ISBN 978-0-8050-9909-6) took place in the Ohio Room of the Capitol Hilton in Washington, D.C. on June 20 during the 2014 Convention of the American Constitution Society. The Interviewer is Frank Housh of the Housh Law Offices, PLLC, in Buffalo New York, Chair of the ACS WNY Lawyer Group and a member of the National Book Critics Circle.

     

    Interviewer

    Your book seems to consciously avoid some of the characteristics of books written for the legal profession, such as voluminous footnotes and block quotes.  Was this a book meant for the general public?

    Laurence Tribe

    It wasn't so much that I consciously was not writing a book for lawyers. I was consciously not writing a book only for lawyers. I definitely want the legal community to get a better understanding than it seems to have displayed about what makes the Supreme Court operate the way it does, what drives the decisions, why the standard sort of press accounts are such oversimplified caricatures. At the same time, I certainly wanted to speak to my own colleagues and the people who teach constitutional law with fresh insights. So I didn't want it to be only for non-lawyers, but I wanted it to be very broadly accessible. So that for me, as soon as someone like Doris Kearns Goodwin said that she thought everybody would enjoy my book it, find it thrilling and fascinating, that's what I was aiming for—because I think that lawyers too often speak only to one another and judges and there's a kind of clique and almost a sort of inside mentality of the high priesthood of the law that I wanted to break through.

    Interviewer

    I guess that's what I meant by the question. It seems that you were constantly trying to avoid legal speak, legalese, that often accompanies writing by lawyers for lawyers.

    Laurence Tribe

    Right. And all the talk of levels of scrutiny and intermediate review and so on, things that are substitutes for thought very often, and that are pigeon holes, but very few birds are pigeons. 

    Interviewer

    I interpreted your book, especially the Prologue and Epilogue, as an attempt to write a historical perspective on the Roberts Court during its existence. Is that a fair statement? 

    Laurence Tribe

    It's not a retrospective view as it would be if I was writing about the Hughes, Taft, Stone,  Warren, or Burger Courts. It’s a Court in process; it's a Court that's ongoing. We're living through it and the world that we're living through is being constantly reshaped in profound and dramatic ways in respect to issues of personal anonymity, issues of whom you can marry, who can carry a gun, who can vote, what kinds of government action can be based on race and in what way, and what are the limits of the President's powers. It is really a book about things that are very much in the news and that affect all of us, but that most of us in a society that is self-governing understand far too little about. So I wanted to do my bit in overcoming that knowledge gap, that understanding gap.

  • July 14, 2014
    BookTalk
    The Wrong Carlos
    Anatomy of a Wrongful Execution
    By: 
    James S. Liebman

    by James S. Liebman, Simon H. Rifkind Professor of Law, Columbia Law School, and Shawn Crowley, Andrew Markquart, Lauren Rosenberg, Lauren Gallo White and Daniel Zharkovsky

    Do states with the death penalty execute innocent people? That is the fundamental question at the heart of The Wrong Carlos, a book I recently published with student coauthors.

    It is also the question facing the American public following a series of devastating developments for death penalty supporters. March brought news of the 144th death row exoneration. In April, we learned that Oklahoma had botched Clayton Lockett’s execution, leaving him awake during a massive drug-induced heart attack. The Supreme Court found in May that Florida remains hell bent on executing defendants too mentally disabled to be condemned. And in June—for the first time—a majority of Americans indicated in a poll that they prefer life without parole to capital punishment.

    Death penalty supporters are left clinging to a single promise often made but never substantiated—a promise repeated by Justice Scalia in a 2006 opinion: Whatever else we do, we don’t execute the innocent.

    I began thinking about this question between 2000 and 2003, when colleagues and I issued our Broken System studies documenting judicial findings of accuracy-impugning error in two-thirds of all U.S. capital cases reviewed between 1973 and 1995.

    Our studies sparked a heated debate over two competing interpretations. Did the courts’ discovery of so many errors prove the system worked? Or do high error rates mean it is almost certain that courts miss other errors, allowing the innocent to be executed?

  • June 25, 2014
    BookTalk
    Failure to Flourish: How Law Undermines Family Relationships
    By: 
    Clare Huntington

    by Clare Huntington, Professor of Law, Fordham University School of Law

    Inequality is the issue of the decade. Both income and wealth are concentrated at the top, and social mobility in the United States, although varied in its particulars, is lower than in most developed countries.

    One way to increase social mobility is to increase human capital, but, as I show in Failure to Flourish: How Law Undermines Family Relationships (Oxford University Press 2014), this can happen only if we strengthen families. Education is a key component of human capital, but what happens at home in the first few years of life—long before a child starts Head Start or pre-kindergarten—can set a child on a trajectory that is difficult to alter in later years.

    Family law is part of the problem. Too often, instead of helping strengthen families, our legal system undercuts family relationships, making it harder for parents to provide children with the relationships necessary for healthy child development.

    We can think of family law in concentric circles. At the center are rules about creating and ending relationships, including laws about marriage, divorce, adoption, and parentage. In the next ring are laws governing family behavior, such as child abuse and domestic violence laws. In an outer ring are legal structures and policies that we tend not to think of as family law but which deeply affect families nonetheless. These include tax policy, criminal justice, zoning, food stamp regulations, and laws governing workplace discrimination, among others.