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books in print Here’s just a sampling of the many other books recently written or edited by our alumni, faculty, staff, and students. We welcome your submissions. Richard Epstein Please contact us: [email protected]. The Classical Liberal Constitution: The Uncertain Quest for Limited Government Press, 2013 The Nature of Public Opinion Susan D. Carle American liberals and con- Defining the Struggle: National Racial servatives alike take for In 2010, a sharply divided U.S. Supreme Court overturned a federal prohibition Justice Organizing, 1880–1915 granted a progressive view Oxford University Press, 2013 of the Constitution that on independent corporate campaign expenditures—and ushered in a controversial new John E. Ecklund (with took root in the early twen- In this award-winning Constance Cryer Ecklund, Editor) electoral era in which money has flooded political elections. tieth century. Epstein ’68 volume, Carle ’88 reveals the The Origins of Western Law from laments this complacency. forgotten history of early Athens to the Code Napoleon Steering clear of well-worn civil rights activism in the The Lawbook Exchange, 2014 debates between defenders United States. Defining Robert C. Post ’77, Dean and Sol & Lillian Goldman Professor of Law The late John Ecklund ’41— of originalism and proponents of a living the Struggle examines the Citizens Divided: Campaign Finance Reform and the Constitution who served as treasurer Constitution, Epstein employs close textual organizations that pre- Harvard University Press, 2014 and general counsel of Yale reading, historical analysis, and political dated the NAACP and the University—produced a and economic theory to urge a return to National Urban League, work that charts the hori- the classical liberal theory of governance The landmark Supreme Court case Citizens United v. Federal Election Commission overturning popular zon of Western legal ori- that animated the framers’ original text, divided the country just as sharply as it did the court, which ruled 5-4 in favor of striking thought that these latter groups were gins: eternal Platonic truths and to the limited government this theory down a federal prohibition on independent corporate campaign spending. Reactions from the progenitor of the modern move- versus the Sophists of indi- supports. both sides of the issue were equally vehement. Advocates of electoral reform railed against ment. Carle examines their motivations, vidual preferences; medi- the idea of equating corporate spending with individual speech. Those who favored a broader initiatives, and legal ideas to uncover their eval Realists against Nominalists; natural substantive influence on the activism for interpretation of the First Amendment celebrated the ruling as a victory against govern- lawyers of the seventeenth and later legal rights in the twentieth century. ment censorship. centuries; and Montesquieu and other

In Citizens Divided: Campaign Finance Reform and the Constitution, Robert Post provides an Enlightenment thinkers fighting through insightful and innovative constitutional theory designed constructively to engage these two Gerhard Casper principles and personhood. Such figures The Winds of Freedom: Addressing opposing perspectives. and ideas come alive in this comprehen- Challenges to the University Based on his Tanner Lectures on Human Values delivered at Harvard University in 2013, sive survey of the antecedents of our Press, 2014 Post’s analysis postulates that the fundamental argument is between two camps: those who modern legal system, edited by Ecklund’s believe self-government requires democratic participation in the formation of public opinion, As president of Stanford widow, Constance Cryer Ecklund. and those who believe that self-government requires a functioning system of representation. University from 1992 to 2000, For those who insist on democratic participation in the formation of public opinion, free Casper ’62 llm established speech is paramount. And for those who focus on a functioning system of representation, the a reputation as a tireless, integrity of the electoral process is essential. forward-thinking advocate for higher education. From While acknowledging that each position has deep roots in American constitutional his- Sterling Professor of Law Akhil Reed Amar ’84 affirmative action and mul- tory, Post argues that both share a common aim: self-government. In contemporary life, all and Les Adams ticulturalism to free speech, The Bill of Rights Primer: A Citizen’s Guidebook believe that self-government requires that elections be structured to sustain public confidence politics, public service, and to the American Bill of Rights that elected officials are responsive to public opinion. Government therefore has a compelling government regulation, Skyhorse Publishing, 2013 constitutional interest in maintaining this kind of “electoral integrity.” In Citizens Divided, Post Casper addresses the controversial issues Intended for a broad audience, and delivered in clear and uncluttered prose, spells out the many constitutional implications of this simple but profound insight. Critiquing currently debated on college campuses The Bill of Rights Primer is an authoritative guide to all American freedoms. the First Amendment reasoning of the court in Citizens United, he also shows that the court did and in our highest courts. In addressing Many Americans reference the Bill of Rights, a document that represents many not understand the constitutional nature of corporate speech. these vital concerns, Casper outlines the of the freedoms that defne the United States. And yet concrete knowledge about Post’s work is already becoming influential. In constructing his dissent in the recent case freedoms that a university must encour- the document is often in short supply. This pocket-sized volume offers a wealth of of McCutcheon v. FCC, U.S. Supreme Court Justice Stephen Breyer invoked and applied Post’s age and defend in the ongoing pursuit of knowledge about the Bill of Rights that goes beyond a basic understanding. theory of “electoral integrity.” knowledge. This guidebook gives a brief historical survey of the people, events, and ideas Citizens Divided offers a unique blend of history, theory, and constitutional doctrine. It dem- in England and the American colonies that influenced the drafting of the U.S. onstrates how one of the most divisive and influential cases in the recent history of the Constitution and Bill of Rights. The Bill of Rights Primer shows that this foundational Supreme Court might have come to a different conclusion had it understood the dependence American document is not a stagnant text but one with an evolving meaning of First Amendment rights on the value of electoral integrity. shaped by historical events, such as the American Civil War and Reconstruction. 20 21 yale law report summer 2014

Joseph Fishkin Lea Brilmayer, Priscilla Claeys, Nadia Tara Helfman and Edgar J. McManus to understanding current Israeli poli- Bottlenecks: A New Theory Lambek, and Adrienna Wong, Editors Liberty and Union: A Constitutional tics, contemporary Jewish spirituality, of Equal Opportunity Nicole Stelle Garnett and Rethinking Food Systems: Structural History of the United States and modern Jewish thought. In the first Oxford University Press, 2014 Margaret F. Brinig Challenges, New Strategies, and the Law Routledge, 2014 English-language biography of Kook Lost Classroom, Lost Community: Springer, 2014 in more than half a century, Mirsky ’86 Equal opportunity is a powerful A comprehensive constitu- Catholic Schools’ Importance in offers an insightful portrait of the man idea and one with extremely The editors (including tional history of the United Urban America and his complex legacy. broad appeal in contemporary Howard M. Holtzmann States, Liberty and Union University of Chicago Press, 2014 Professor of International examines the Anglo-American politics, political theory, and Stephen Joel Trachtenberg, Gerald B. Law Lea Brilmayer, Lambek origins of the Constitution law. But on closer examina- In the past two decades Kauvar, and E. Grady Bogue tion, the most attractive in the United States, ’10 and Wong ’10) have through the colonial and Presidencies Derailed: Why University existing conceptions of equal more than 1,600 assembled an examination antebellum periods up to the Leaders Fail and How to Prevent It Bruce Ackerman ’67, Sterling Professor opportunity turn out to be Catholic elementary of how law shapes global Civil War and the consequent Johns Hopkins University Press, 2013 of Law and Political Science impossible to achieve in and secondary schools food systems and their restructuring of the nation. We the People: practice. This book proposes an entirely have closed, and more ongoing transformations, taking as a start- Blending chronological coverage with University presidents The Civil Rights Revolution new way of thinking about the project than 4,500 charter ing point the idea that hunger results from a thematic approach, Helfman ’06 and have become as expend- Belknap Press, 2014 social exclusion and distributional inequi- McManus offer a critical analysis of core able as football coaches: of equal opportunity. Instead of focusing schools—public schools i n 1993, Professor Bruce Ackerman offered ties, and that lasting, sustainable, and just constitutional history topics set in the one bad season, scandal, on the chimera of literal equalization, that are often privately a sweeping reinterpretation of our nation’s solutions are to be found in changing the political, social, and economic context or political or finan- the work of Fishkin ’07 suggests trying to operated and freed from constitutional experience with his book structures that underlie our food systems. that made them constitutional issues in cial misstep and they broaden the range of opportunities open certain regulations—have opened, many in We the People: Foundations. In 2000, with Using detailed case studies, historical map- the first place. are sent packing. A to people at every stage of life. urban areas. With a particular emphasis on We the People: Transformations, Ackerman ping, and legal analysis, the contributors derailed presidency can Catholic school closures, Garnett ’95 and revealed how America’s “dualist show how various actors could use differ- undermine an institu- Brinig examine the implications of these Thomas Kleven democracy” provides for populist ent legal tools (legislative, jurisprudential, Equitable Sharing: Distributing the tion’s image, damage dramatic shifts in the urban educational upheavals that amend the Constitution. norm-setting) on various scales to achieve Benefits and Detriments its alumni relations, and destroy campus landscape. Now with the newly released We the structural change in food systems. of Democratic Society morale; it can also cost millions of dol- People: The Civil Rights Revolution, Lexington Press, 2014 lars. The authors (including Trachtenberg Ackerman continues his examination of ’62) explore in depth, from every sector of Kleven ’67 argues that a principle the U.S. Constitution with an eye toward higher education, the reasons why univer- of equitable sharing—one that the Civil Rights Act, the Voting Rights Act, , John M. Duff, Jr. Professor of Law; sity presidencies fail, and how university requires the benefits and detri- the Second Reconstruction, and Brown v. Jed Rubenfeld, Robert R. Slaughter Professor of Law and college leadership can prevent these ments of social life to be fairly Board of Education. : How Three Unlikely Traits Explain the Rise and Fall of Cultural Groups in America situations. distributed among all members “The sun is setting on the civil rights Penguin Press HC, 2014 of society—is fundamental to revolution. The struggle was an unforget- Robert Tsai the concept of democracy and table experience for the generation that A new book written by Professors Amy , among others. The groups the authors America’s Forgotten Constitutions: is implicit in the founding docu- Defiant Visions of Power lived through it,” Ackerman writes. “All this Chua and Jed Rubenfeld takes a close look at identify as successful are mainly immigrant groups, which ments of the democratic society is ancient history for the rising genera- an enduring mystery—how some individu- Chua says is explained in part by the fact that America and Community the United State purports to be. Harvard University Press, 2014 tion. What the rising generation chooses als from unpromising origins fnd success tends to attract immigrants with Triple Package qualities. To illustrate the centrality of equitable to remember—and what it chooses to and why some cultural groups in the U.S. While the book has generated some controversy by sharing to democracy, Kleven examines The U.S. Constitution forget—will shape the way it understands seem to consistently outperform others. singling out specifc groups of people, Rubenfeld and Chua the political philosophies of John Locke, opens by proclaiming America’s constitutional choices for the Drawing on original research and a trove believe their fndings actually debunk racist stereotypes by John Stuart Mill, and John Rawls. the sovereignty of all twenty-frst century.” of statistics, The Triple Package: How Three demonstrating the cyclical, generational factors that affect citizens: “We the People.” Ackerman challenges conventional Unlikely Traits Explain the Rise and Fall of success. Yehudah Mirsky Tsai’s ’97 gripping his- legal analysis of the civil rights movement; Cultural Groups in America seeks to chal- “Triple Package success disappears in most groups Rav Kook: tory of alternative con- it was not through judicial activism or lenge the conventional wisdom of success after a few generations, which punctures the whole idea Mystic in a Time of Revolution stitutions invites readers Article V amendments that this revolu- and achievement. of ‘model minorities’ or of groups succeeding because of Yale University Press, 2014 into the circle of those tion transformed the Constitution. The Described as “provocative,” and innate, biological differences,” explains Rubenfeld. “Third- who have rejected this Rav Abraham Isaac Kook breakthrough, he argues, was the passage “thought-provoking,” The Triple Package generation Asian American kids, for example, do no better ringing assertion—the (1865–1935) was one of the of laws that ended the institutionalized identifes three unique traits that are preva- academically than any other kids.” defiant groups that refused to accept most influential—and con- humiliations of Jim Crow and ensured lent in certain groups who are currently And though the book zeroes in on a narrow scope of the Constitution’s definition of who “the troversial—rabbis of the equal rights at work, in schools, and in outperforming the national average. The cultural groups exhibiting these three unique qualities, people” are and how their authority twentieth century. As the first the voting booth. This legislation gained authors contend that these traits—insecurity, a superiority Chua and Rubenfeld believe that anyone, from any back- should be exercised. chief rabbi of Jewish Palestine congressional approval only because of the complex, and impulse control—generate drive, grit, and ground, can have the Triple Package and achieve great mobilized support of the American people. disproportionate success. success. and the founding theologian Some of the cultural groups studied in this book include of religious Zionism, his life , Asian Americans, Jews, Mormons, and and teachings are essential 22 23 yale law report summer 2014 books in print

James Lowell Underwood also of note Robert Pozen ’72 jd, ’73 jsd Glenn Harlan Reynolds ’85 Junius Williams ’68 Deadly Censorship: Murder, Honor, and Extreme Productivity: Boost Your The New School: Unfinished Agenda: Urban Politics in the Freedom of the Press Lucas Bergkamp ’89 llm Results, Reduce Your Hours How the Information Age Will Save Era of Black Power University of South Carolina Press, 2013 Mark Weiner The European Union REACH Regulation HarperBusiness, 2012 American Education from Itself North Atlantic Books, 2014 The Rule of the Clan: What an Ancient for Chemicals Law and Practice Encounter Books, 2014 On January 15, 1903, South Form of Social Organization Reveals Oxford University Press, 2013 Carolina Lieutenant Governor About the Future of Individual Freedom Richard Ravitch ’58 Yael Ben-Zion ’01 llm, ’04 jsd, James H. Tillman shot and Macmillan, 2013 So Much to Do: A Full Life of Business, Margaret Thornton ’80 llm with Maurice Berger and Amy Chua killed Narciso G. Gonzales, Privatising the Public University: (foreword) Philip Bobbitt ’75 Politics, and Confronting Fiscal Crises A wide-ranging medita- The Case of Law Intermarried editor of an influential The Garments of Court and Palace: PublicAffairs, 2014 tion on human devel- Routledge, 2012 Kehrer Verlag, 2014 local newspaper, blaming Machiavelli and the World opment that offers Gonzales’s stinging editorials That He Made surprising lessons for Mary Hutchings Reed ’76 for his loss of the 1902 guber- Atlantic Monthly Press, 2013 natorial race. Underwood the future of modern (with David Creasey) Deborah Tuerkheimer ’96 Book Law for Authors Flawed Convictions: “Shaken Baby ’66 llm investigates the epic individualism, The Rule Interested in hearing faculty CreateSpace Independent Publishing Syndrome” and the Inertia of Injustice murder trial of Tillman to test whether of the Clan examines the Hillary Rodham Clinton ’73 members talk about their writing? Platform, 2013 Oxford University Press, 2014 biting editorials were a legitimate exer- constitutional principles Hard Choices Videos of book talks with faculty cise of freedom of the press or an abuse and cultural institutions Simon & Schuster, 2014 are available at www.law.yale. that justified killing when camouflaged of kin-based societies, edu/videos. from medieval Iceland to modern Pakistan. as self-defense. In this examination of Robert Ellickson ’66, Vicki Been, Carefully argued and filled with rich his- homicide as a deterrent to public censure, Roderick M. Hills ’91, Christopher Serkin Underwood asks the question, “Can a man torical detail, this investigation by Weiner Land Use Controls: Cases and Materials, get away with murdering a political oppo- ’00 speaks both to modern liberal societies Fourth Edition nent?” and to developing nations riven by “clann- Wolters Kluwer Law & Business, 2013 ism,” including Muslim societies in the wake of the Arab Spring. Peter H. Schuck, Simeon E. Baldwin Professor Emeritus of Law Why Government Fails So Often: And How It Can Do Better

Jeff Greenfield ’67 Princeton University Press, 2014 John Yoo If Kennedy Lived: The First and Second Point of Attack: Preventive War, Terms of President John F. Kennedy: International Law, and Global Welfare An Alternate History America enjoys one of the world’s highest standards To correct some of these weaknesses, Schuck looks Oxford University Press, 2014 Putnam, 2013 of living, and its representative democracy functions as for answers by analyzing the factors that made certain In the twenty-first cen- a widely admired symbol of western ideas about politi- policies successful: the G.I. Bill, the Voting Rights Act, cal process and government. At the same time, how- the Earned Income Tax Credit, and airline deregulation. tury, the greatest threat Reed Hundt ’74 to international security Zero Hour: Time to Build the Clean ever, most Americans have lost confdence From that vantage, Schuck proposes a series of possible no longer comes from Power Platform in the federal government and believe it reforms, including avoiding moral hazard in student war between the great Odyssey Editions, 2013 has become ineffective. The origins and loan, mortgage, and other subsidy programs; empower- ’08 Named powers. In this new implications of this dissonance—and pro- ing consumers of public services; simplifying programs treatise, Yoo ’92, former posals to correct the problem—are the sub- and testing them for cost-effectiveness; and increasing Winner of 2014 Daniel J. Kornstein ’73 adviser to the Bush ject of a new book by Peter Schuck, Simeon the use of “big data.” Loose Sallies Essays William E. Colby Award administration, estab- E. Baldwin Professor Emeritus of Law. Author House, 2014 lishes a new framework In identifying the roots of what he calls Norwich University officials have for the grounds for war. Point of Attack “a deep and dangerous dilemma,” Schuck named Logan Beirne ’08 the 2014 argues against the framework built on the Jonathan Macey ’82, Richard Scott argues that ineffective policies create William E. Colby Award winner for UN Charter and instead proposes a new Carnell, Geoffrey P. Miller public discontent and, while failing to his book, Blood of Tyrants: George system consisting of defensive, preemp- The Law of Banking and Financial achieve social goals, threaten to undermine Washington & the Forging of the tive, or preventive measures to encour- Instituitons, Fifth Edition democratic legitimacy. Schuck posits that Presidency (Encounter Books, 2013). age wars that advance global welfare. Aspen Publisher, 2013 the perceived failures in federal government are both Named for the late ambassador Yoo examines recent wars in Iraq and measurable and structural—and eclipse episodic prob- and former CIA director William E. Afghanistan and looks at the challenges lems or partisan bickering. These longstanding prob- Colby, the Colby Award recognizes posed by Libya, Syria, North Korea, and Iran. Daniel Park ’98 lems undermine Democratic and Republican adminis- The Legal Mind: How the Law Thinks a first work of fiction or non-fiction trations alike, and include unrealistic goals, perverse that has made a significant contri- CreateSpace Independent Publishing incentives, poor and distorted information, systemic bution to the public’s understanding Platform, 2013 irrationality, rigidity and lack of credibility, a mediocre of intelligence operations, military bureaucracy, powerful and inescapable markets, and history, or international affairs. the inherent limits of law.