BookTalk

  • October 1, 2014
    BookTalk
    God vs. the Gavel
    The Perils of Extreme Religious Liberty
    By: 
    Marci A. Hamilton

    by Marci A. Hamiltonthe Paul R. Verkuil Chair in Public Law at the Benjamin N. Cardozo School of Law, Yeshiva University.

    *This post originally appeared on Hamilton and Griffin on Rights.

    How do you talk about the unspeakable? A decade ago, it was taboo to criticize religion or religious believers in print. They were a benign presence in America right next to apple pie.   I wrote God vs. the Gavel: Religion and the Rule of Law then to defeat this taboo, because it was masking a reality most Americans would want to know.

    There I stacked up transgressions of religious actors, including the sexual abuse and medical neglect (to death) of children, the forced marriage of adolescents into polygamous marriages, the violence of white supremacist or radical jihadist prison gangs, and even the questionable dealings of religious developers who forced incompatible uses like homeless shelters into residential neighborhoods. It was all for religion, with results that were not so benign.

    The destruction of the taboo was necessary in a just society. The perpetrators of 9/11 were religious zealots. So were the parents who let their children die. Roman Catholic bishops covered up for child abusers and endangered one child after another to protect the religious institution from scandal. Then the same pattern appeared across virtually all religious denominations. These were atrocities.

    Before these criminal acts reminded us of the power of religion to be both transcendent and horrible, Congress had ratcheted up the rights of religious believers by passing the misbegotten Religious Freedom Restoration Act (RFRA) in 1993 and 2000. Hardly anyone understood what it meant either time and no one was thinking of jihadists, clergy child predators, or children dying from medical neglect, in part because mainstream religious lobbyists intentionally presented a wholesome face to Congress, arguing that religious believers faced discrimination across the country that needed to be corrected by the statute.

  • September 25, 2014
    BookTalk
    The Case Against the Supreme Court
    By: 
    Erwin Chemerinsky

    by Erwin Chemerinsky, Dean and Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law, University of California, Irvine School of Law

    How should we assess the Supreme Court’s performance over the course of American history? That is the central question of my new book, The Case Against the Supreme Court. My conclusion is that the Supreme Court often has failed at its most important tasks and at the most important times. Recognizing this is important in order to focus on how to improve the institution and make it much more likely to succeed in the future.

    Obviously the evaluation of any institution requires criteria by which it can be assessed.   In the introductory chapter, I posit that the Court exists, above all, to enforce the Constitution. The Constitution exists to limit what government and thus the democratic process can do. As Marbury v. Madison said long ago, the limits contained in the Constitution are meaningless unless enforced and that is the “province and duty” of the courts. The judiciary is particularly important in protecting the rights of minorities (of all sorts) who cannot rely on, and should not have to rely on, the democratic majority. Also, the courts need to play a special role in times of crisis to ensure that society’s short-term passions do not cause it to lose sight of its long-term values.

    I believe that all, liberal and conservative, can agree that these are fair criteria by which to assess the Supreme Court. I also think that liberals and conservatives can agree that the Court very often has failed. Part I of the book looks at the Court historically. Chapter one looks at the Court’s dismal record over the course of American history with regard to race. For the first 78 years of American history, from 1787 until 1865, the Court aggressively protected the rights of slave owners and upheld the institution of slavery.  For 58 years, from 1896 until 1954, the Court approved and enforced the doctrine of “separate but equal.” The Court’s failure with regard to race continues to this day, as evidenced by the decision in Shelby County, Alabama v. Holder, which declared unconstitutional a key provision of the Voting Rights Act of 1965. This is the first time since the 19th century that the Court has invalidated a federal civil rights law to protect racial minorities.

  • September 19, 2014
    BookTalk
    Buying The Vote
    A History of Campaign Finance Reform
    By: 
    Robert E. Mutch

    by Billy Corriher, Director of Research for Legal Progress, Center for American Progress  

    Early on in Robert Mutch's book, Buying the Vote: A History of Campaign Finance Reform, the identity of the villain is clear. Mutch describes the campaign finance reformers of the early twentieth century as focused on keeping corporations from exerting too much influence on politics and politicians. As large corporations first emerged, the public debated the proper role of these institutions in our democracy. After a series of scandals, early reformers' goals included "keeping corporate money out of elections and preventing the inequality of wealth from undermining political equality among individual citizens."

    Mutch also clearly disagrees with the current U.S. Supreme Court's approach to campaign finance reform. But unlike so much commentary today, Mutch provides rich context for his critique. He begins with early campaign finance scandals and the small triumphs of reformers like Louise Overacker. The early reformers achieved some victories, after the public learned that "the country's major political parties were being financed by" large corporations. New laws led to disclosure of campaign contributors and bans on corporate campaign cash.

    The second wave of reforms came in the wake of Nixon's secret receipt of campaign contributions from corporations. But Mutch notes that, unlike the response to the first wave, opponents rushed to the courts to block the new laws. The definition of democracy as excluding corporations was challenged when "the enforcement provisions of the post-Watergate laws raised the possibility that the....reforms would be more than symbolic."

    In the face of campaign finance reform, environmental regulations, and consumer advocates, big business felt like it was under attack at the time. Justice Lewis Powell, while an attorney for the US Chamber of Commerce, wrote an infamous memo warning that business needed direct political action to counter the "assault on the enterprise system."

  • 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.