BookTalk

  • March 16, 2015
    BookTalk
    Ideas with Consequences
    The Federalist Society and the Conservative Counterrevolution
    By: 
    Amanda Hollis-Brusky

    by Amanda Hollis-Brusky, professor of political science at Pomona College

    “A Vast Right-Wing conspiracy!” “The Conservative Cabal Transforming America!” “Are you now or have you ever been a member of the Federalist Society?”

    The Federalist Society for Law and Public Policy Studies has been no stranger to accusations of this kind over the years. Those on the left and the right universally acknowledge that the Federalist Society is an organization of significant consequence. But very few understand how this self-professed “society of ideas” with none of the traditional signs of political power is exerting its influence on law and the legal culture. Drawing on a trove of archival, ethnographic and original interview data, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution addresses this question head on.

    The Federalist Society – a network of more than 40,000 conservative and libertarian lawyers, academics, judges, policymakers, and journalists dedicated to reshaping the law – grew out of the frustrations of a small group of right-of-center law students who felt isolated in their left-of-center law schools in the 1980s. Inspired by the ideas and tenets of the Reagan Revolution raging outside the walls of their elite law schools, these first Federalist Society members were recruited to work as Special Assistants in the Reagan Justice Department where they heard two oft-repeated phrases: “ideas have consequences,” and “policy is people.” These two phrases would become the two main pillars of the Federalist Society as we know it today – as an organization that intellectually trains and socializes its members, exposing them to a distinctly conservative and libertarian way of thinking about the law and also encourages and facilitates opportunities for its members to put these ideas and principles into practice as lawyers, judges, etc. It is a simple formula, but one that has served them remarkably well over the past thirty years: ideas + people = policy consequences.  

  • January 28, 2015
    BookTalk
    Cases on Reproductive Rights and Justice
    By: 
    Melissa Murray and Kristin Luker

    by Melissa Murray, Professor of Law and Faculty Director of the Berkeley Center on Reproductive Rights and Justice (CRRJ), University of California, Berkeley

    I must admit that for much of my academic career, I never thought of myself as someone who “did” reproductive rights.  When asked at dinner parties, I volunteered that I taught criminal law and family law.  When pressed ― “what on earth do those subjects have to do with each other?” ― I would explain that I was interested in the regulation of sex, sexuality and family formation.  Criminal law and family law, I would explain, were principal sites in which this sort of regulation took place.

    It was not until my colleague, Kristin Luker, a well-known sociologist and scholar of the abortion rights movement, nudged me to view my work more expansively that I began to see it fitting comfortably within the rubric of reproductive rights and justice.  As she reminded me, limitations on access to contraception and abortion are, by their very nature, efforts to regulate sex and sexuality by curtailing women’s efforts to control reproduction.  The legal regulation of reproduction is merely part of a broader story of efforts to discipline and regulate sex.

    My interest in reproductive rights and justice piqued, I joined Berkeley Law’s newly-formed Center on Reproductive Rights and Justice (CRRJ) as an affiliated faculty member in 2012 and assumed the role of Faculty Director in 2015.  Before its official founding, CRRJ hosted a meeting with staff from Law Students for Reproductive Justice (LSRJ) where we discussed the state of the field, including the availability of law school courses on reproductive rights and justice.  As I learned, although there was huge demand from students for such classes, many interested professors were reluctant to teach reproductive rights and justice courses because there was no casebook.  Because of the lack of a casebook, those willing to teach the subject were forced to compile their own materials ― a burdensome task, even for the most enthusiastic teacher.

  • January 22, 2015
    BookTalk
    Madison's Music: On Reading the First Amendment
    By: 
    Burt Neuborne

    by Burt Neuborne, Inez Milholland Professor of Civil Liberties, NYU Law, and Founding Legal Director, Brennan Center for Justice

    We honor James Madison as the driving force behind the Bill of Rights.  We recognize him as Thomas Jefferson’s indispensable political lieutenant.  We applaud him as the nation’s fourth president.  But we will never do Madison full justice until we revere him as a great poet.

    Not a literary poet like Wallace Stevens, or a prophet-poet like Abraham Lincoln, or even a peoples’ poet like Ronald Reagan.  Madison’s poetic genius was structural – a mastery of the interplay between democracy and individual liberty.  His poetic voice speaks to us in the harmony of the 462 words, 31 ideas, and 10 amendments – each in its perfectly chosen place and all interacting to form a coherent whole – that is the magnificent poem to democracy and individual freedom called the Bill of Rights.

    Today, we hear only broken fragments of Madison’s music.  Madison’s poetic vision of the interplay between democracy and individual freedom is hiding in plain sight in the brilliantly ordered text and structure of the Bill of Rights, but we have forgotten how to look for it.  Instead of seeking harmony and coherence in the Bill of Rights, the current Supreme Court majority reads the Bill of Rights as a set of self-contained commands, as if each clause – and at times, each word of each clause – existed in splendid isolation from the body of the constitutional text.  Consider the fate of the 45 words in Madison’s remarkable First Amendment:

    Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble; and to petition the Government for a redress of grievances.

  • January 14, 2015
    BookTalk
    Reclaiming Accountability
    Transparency, Executive Power, and the U.S. Constitution
    By: 
    Heidi Kitrosser

    by Heidi Kitrosser, Professor of Law, University of Minnesota Law School

    It is fairly well known by now that the Obama administration has prosecuted more persons for allegedly leaking classified information to journalists than all previous administrations combined.  Yet much less attention has been paid to the legal justifications offered for these prosecutions. 

    Like its predecessors, the Obama administration has consistently maintained in litigation that communications conveying classified information to journalists are “wholly unprotected by the First Amendment.”  This argument, which has been largely successful in the handful of prosecutions to reach courts over the years, rests on the notion that speech about government activities – speech that ordinarily would be deeply protected from content-based prosecution under the First Amendment – loses all protection once marked by the classification stamp.  That stamp is wielded by the millions of persons with some form of classification authority, authority that stems primarily from presidential executive order.

  • December 16, 2014
    BookTalk
    Why Not Jail?
    Industrial Catastrophes, Corporate Malfeasance, and Government Inaction
    By: 
    Rena Steinzor

    by Rena Steinzor, a Professor at the University of Maryland Carey School of Law and the president of the Center for Progressive Reform. For two decades, she has written dozens of articles and two previous books about the regulatory system that protects public health, worker and consumer safety, and the environment. She has testified repeatedly before Congress and has been quoted extensively in a wide range of mainstream media outlets. Cambridge University Press published her latest book Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction in December 2014.

    One subtle and too often ignored symptom of the fundamental bias in America’s criminal justice system is its feathery embrace of white collar crime. Failure to prosecute the banks in the wake of the 2008 crash gets consistent media attention and disgusts many people, but these reactions have yet to motivate a concerted response by the Obama Justice Department. The parallel failure to prosecute the corporations and executives that kill and injure people through reckless practices in industrial contexts is barely discussed.

    Just in the last few years, hundreds have died and thousands have been injured. Causes include contaminated food (think listeria in cantaloupes and salmonella in peanut paste), infected drugs (steroid injections tainted by meningitis), defective products (for example, Toyota sudden acceleration, General Motors ignition switches, Takata airbags), tainted drugs (consider meningitis-laden steroid injections administered at hospitals nationwide but manufactured by a nightmarishly inept pharmacy in Massachusetts), and absolutely preventable industrial catastrophes (oil rigs, refineries, coal mines, sugar plants, and construction sites). Less obvious is the egregious malfeasance at executive levels that enabled these outcomes. 

    The cantaloupes were washed in a machine designed for potatoes, with a disconnected rinse mechanism needed to kill the listeria. The peanut paste was shipped despite a positive test for salmonella. The managers of the “clean room” used to process injectable drugs shut off the air conditioning at night, allowing fungi and bacteria to fester. At the very least, senior car company executives failed to disclose defects to federal regulators promptly, as required by the law. They dragged their feet for months on recalls and, as the GM investigation deepens, evidence is even emerging that engineers fixed the defect in 2005 without informing dealers who had stockpiles of the defective parts, many of which ended up in cars still on the road. In the workplace, employers are quick to blame line workers for human errors regardless of thousands of pages of expert reports explaining that cost-cutting, delayed maintenance, lack of trained supervisory personnel, poor safety cultures, and manic haste to extract natural resources and build structures created intolerable risk. To their credit, U.S. attorneys are just beginning to bring such cases, and recently secured felony convictions against the owner and senior managers of the peanut plant.