Books in Print by Yale Law School Alumni, Faculty, Staff, and Students

England, he went to a local pub and talked with people who had worked at the base. Then he went to the u.s. Patent Office. He explains that in the last twenty years, the nsa has started patenting some of the technologies they develop. These patents gave Keefe a glimpse of the agency’s activities. For instance, he knew that terrorist groups have used a tech- nology called steganography to conceal encrypted messages in images on websites. “If I had gone to the nsa and said, ‘Is that a prob- lem for you guys? Is that something you’re thinking about?’ they never would have told me anything. But if you go to the patent office, they actually have patents, and the title of the patent is something like ‘method for extracting text implicit in site images.’” Keefe adds, “The second sense in which it was like intelligence work is that you’re always worried about Listening to the Listeners reliability. The agencies will never come out and actively debunk any kind of a story—they just always Chatter: Dispatches from the Secret World stay silent. There are all kinds of paranoid cranky of Global Eavesdropping weirdos out there who will tell you all kinds of nutty Random House, 2005 things.” Keefe began this research as a graduate student in After being reviewed in the country’s England, after reading accounts of a European Union biggest newspapers, Chatter by Patrick Radden Keefe is investigation into a surveillance system run by the u.s., hardly a secret. However, Keefe says that the process of the u.k., and several other countries, called Echelon. He researching the National Security Agency had similari- was captivated by reports that he said sounded like a ties to the secretive world of intelligence work. “conspiracy theory.” Echelon was supposedly capable of “The cliché about intelligence is that you’re connect- capturing millions of communications every hour, but ing the dots,” says Keefe. “You take a data set that’s incomplete and “The agencies will never come out and actively draw from that various conclu- sions—and that was very much my debunk any kind of a story—they just always stay silent. ” experience.” The nsa operates in secrecy, refusing even to disclose it operated in near-total secrecy. “There’s nothing that its annual budget. When Keefe visited a large listening sparks your interest quite like being told that there’s a station in the English countryside, he wasn’t allowed big thing that you can’t know about,” Keefe says. past the front gate. He interviewed former intelligence From the moment he began investigating Echelon, agents, experts in communications technology, politi- Keefe figured he would never know everything he cians, and conspiracy theorists, but the nsa wouldn’t wanted to about it. However, he says, “There were so answer his questions. many questions and they were so compelling and But Keefe was able to assemble his dots obliquely. important that they were worth raising.” For example, When he couldn’t get into the listening station in Keefe notes, the British had data protection obligations 16 |17 YLR Summer 2005

as part of the eu but also participated in Echelon. What Here’s just a sampling of the many books recently did that mean for international relations? What did written or edited by our alumni, faculty, staff, such a large program mean for privacy rights and gov- and students. We welcome your submissions. If possible, ernment accountability? please send us two review copies of your book: Keefe continued his investigations after starting Law one for the Lillian Goldman Law Library and one for School in 2001, and some of his courses shaped his the Alumni Reading Room. understanding of the issues underlying Echelon. A class on the Fourth Amendment led Keefe to consider “the Floyd Abrams intersection of theoretical and technical interpretations Speaking Freely: Trials of the First Amendment of privacy.” One paper he wrote became a part of his Penguin Putnam, Inc., 2005 book proposal, and a legislation class helped him under- Floyd Abrams ’59 shares some of the major cases stand how laws could be crafted to properly regulate of his career—landmark trials and Supreme Court intelligence activities—or fail in that role. arguments that have involved key First After five years studying the secret workings of the Amendment protections. His cause has placed nsa, Keefe has a new understanding of what privacy him at the center of many memorable legal bat- means today. “When you really spend time among the tles, including the Pentagon Papers case and the constitutional people who are advancing surveillance technology at the challenge to the controversial McCain-Feingold campaign ground level, it’s extraordinary what they’re doing. And finance reform legislation. you can’t help but wonder if this technology continues unabated, what kind of a society we’ll be living in.” Ian Ayres and Jennifer Gerarda Brown Straightforward: How to Mobilize Heterosexual Support for Gay Rights Princeton University Press, 2005 Ayres ’86,William K.Townsend Professor of Law, and Brown, A FULL BOOKSHELF Visiting Lecturer, advance a thesis that to make real FOR PROFESSOR IAN AYRES progress at the central flashpoints of controversy—mar- On May 11, 2005, Ian Ayres’s new book, Insincere riage rights, employment discrimination, gays in the mili- Promises, was released—an exciting moment for any tary, exclusion from the Boy Scouts, and religious controver- author. Less than three weeks later, his next new sies over homosexuality—straight as well as gay people book, Straightforward, came out, relegating Insincere Promises to need to speak up and act for equality. the heap where his five other old books sit.Then, after only a month, yet another Ayres tome, Optional Law, made its debut, Ian Ayres and Gregory Klass bumping its two siblings down.“It’s an amazing time for me,” says Insincere Promises: Ayres. The Law of Misinterpreted Intent Each book deals with different ideas.“They’re on three very dif- Yale University Press, 2005 ferent parts of the law, and they’re also three very different types of Ayres ’86 and Klass ’02 discuss how inci- analysis and methodology,” says Ayres, the William K.Townsend dences of promissory fraud are frequently Professor of Law.Optional Law applies the math of option finances litigated because they can result in punitive to theories of entitlement law. Insincere Promises, which analyzes damage awards.The authors explore what promises say contract law,“is more philosophical and more doctrinal than any- from the perspectives of philosophy, economics, and the thing I’ve ever done,” says Ayres. Finally, Straightforward applies law; identify four chief mistakes that courts make in economically informed public policy to a civil rights issue, promissory fraud cases; and offer a theory for how courts specifically, how to mobilize heterosexual support for gay rights. and practitioners should handle promissory fraud cases.

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Owen M. Fiss ALSO OF NOTE A Ironia da Liberdade de Expressão (The Irony of Denis Boivin ’93 llm Free Speech: State, Insurance Law: Essentials of ➤ Books continued from previous page Regulation and Diversity in Canadian Law Ian Ayres the Public Sphere) Irwin Law Inc., 2004 Optional Law: The Structure Editora Renovar, 2005 John T. Masterson, Jr. ’76, Editor of Legal Entitlements This book addresses key First International Trademarks and Chicago University Press, 2005 Amendment issues. Examining the Copyrights: Enforcement and A revolution is taking shape in the way position of the U.S. Supreme Court Management legal scholars conceptualize property and during the past three decades, Fiss, American Bar Association, 2004 the way it is protected by the law.This Sterling Professor of Law, discusses the book by Ayres ’86 explores how option role of the state in promoting First Mark C.Weber ’78, Ralph Mawdsley, theory is overthrowing many accepted Amendment values. He argues that the and Sarah Redfield wisdoms and producing tangible new state can be an ally in fostering free- Special Education Law: Cases and tools for courts in deciding cases. He dom of speech and democracy through Materials identifies flaws in the current system and regulation and allocation of subsidies. LexisNexis, 2004 shows how option theory can radically expand and improve the ways that law- Linda Greenhouse makers structure legal entitlements. Becoming Justice Blackmun Times Book/Henry Holt & Co., 2005 Laurel Leff John A. Busterud Greenhouse ’78 msl,a Pulitzer Prize- Buried by The Times: Below the Salt: winning New York Times correspondent The Holocaust and How the Fighting 90th with unprecedented access to the inner America’s Most Important Division Struck Gold and working of the U.S. Supreme Court, Newspaper Art Treasure in a Salt Mine chronicles the personal transformation Cambridge University Press, Xlibris Corporation, 2001 of a legendary justice.The first print 2005 During the closing weeks of reporter to have access to Justice Harry A. Leff ’93 msl examines the coverage by The World War II, soldiers of the 90th Division Blackmun’s extensive archive and private New York Times of the fate of European uncovered a great treasure buried deep in and public papers, she has crafted a com- Jews from 1939 until 1945. She concludes a salt mine in Germany: all of the gold pelling narrative of his years on the Court. that the paper minimized and misunder- reserves and priceless art works which had stood modern history’s worst genocide been removed from war-torn Berlin for Paul W. Kahn and, because of the paper’s profound safekeeping. Busterud’s ’49 book tells the Putting Liberalism in Its Place influence on other media, helped keep dramatic story of that discovery, written Princeton University Press, 2004 news of the Nazis’“Final Solution”from by a key witness. In a wide-ranging, interdisciplinary work, the American public. Kahn ’80, Robert W.Winner Professor of Eli Evans Law & Humanities and Director of the Victor S. Navasky The Provincials: A Personal Orville H. Schell, Jr. Center for International A Matter of Opinion History of Jews in the South Human Rights, argues that the modern Farrar, Straus and Giroux, LLC., 2005 Free Press, 1997 political order is founded not on the social Navasky ’59, longtime editor and publisher This book by Evans ’63 weaves contract but on sacrifice.The author draws of The Nation, recounts highlights of his together his autobiography of on philosophy, cultural theory, American long career as a writer and editor, and growing up Jewish in the constitutional law, religious and literary argues for the important role journals of South with stories of communities, indi- studies, and political psychology to opinion play in our democracy—despite viduals, and events in southern Jewish his- advance political theory in a sweeping the forces of political opposition and unfa- tory. It is enhanced by thirty-two family examination of the deep structure of the vorable economics that make them so and historic photographs and a new intro- modern conception of the self. hard to run (see page 30). duction. 18 |19 YLR Summer 2005

Jed Rubenfeld Susan Zimmermann Revolution by Judiciary: Keeping Katherine: The Structure A Mother’s Journey to of American Acceptance Constitutional Law Three Rivers Press News, Harvard University Press, 2005 2005 Mark V.Tushnet This book by Zimmermann Although constitutional law is supposed The NAACP’s Legal ’76 is a remarkable story to be fixed and enduring, its central narra- Strategy against about a family overcoming adversity and tive in the twentieth century has been Segregated Education, growing stronger as a result. She describes one of radical reinterpretation. Rubenfeld, 1925-1950 her life with her daughter Katherine, a Robert R. Slaughter Professor of Law, The University of North child who developed normally during her posits two different understandings of Carolina Press, 2005 first year, but went on to develop Rett syn- how constitutional rights would apply or Mark V.Tushnet ’71 emphasizes the inter- drome, a neurological condition akin to not apply to particular legislation. His nal workings of the NAACP as revealed in autism. Œ powerful argument challenges current its own documents. He argues that the theories of constitutional interpretation dedication and political and legal skills of from Bork to Dworkin. staff members such as Walter White, Charles Hamilton Houston, and Thurgood John Shattuck Marshall were responsible for the ultimate Freedom on Fire: success of public interest law. Human Rights Wars and America’s Response Harvard University Press, 2003 Michael J. Graetz and Ian Shapiro As the chief human rights Death by a Thousand Cuts: official of the Clinton adminis- The Fight over Taxing Inherited Wealth tration, Shattuck ’70 recounts his strug- Princeton University Press, 2005 gles as he worked to change the adminis- Spring in New Haven—the trees filled with leaves, and the tration’s human rights policy from newspapers filled with quotations from Michael Graetz, disengagement to saving lives and bring- Justus S. Hotchkiss Professor of Law. ing war criminals to justice. Since his book—coauthored with Shapiro ’87, a political science professor at Yale—describing the decades-long Steven D. Stark effort to repeal the estate tax was released at the same Meet the Beatles: time that the House of Representatives debated and passed a measure to do just A Cultural History that, he became an obvious source of expertise. of the Band that “I think this train has an awful lot of momentum,”he told the Washington Post, Shook Youth, Gender, referring to the drive to make repeal permanent. He explained the opposing forces of and the World the debate to Newhouse News Service. His book served as an armament of arguments HarperEntertainment, for pundits on the op-ed pages. 2005 Death by a Thousand Cuts opens in the late 1980s, describing some of the individu- Stark ’79 has a new take on the greatest als who initiated a movement that at first seemed “eccentric, if not quixotic,”accord- story in the history of popular culture. ing to the authors.The narrative hits further important markers—the Republican He explains why the Beatles were magic, takeover of Congress in 1994, the change of “estate tax” to “death tax,”and the elec- putting the impact of the Beatles into tion of George W. Bush. It revisits the compelling personal stories that shaped public unique and entertaining perspective opinion. It explores the ideology and politics behind estate tax repeal. And the book by revealing both the personal details and closes with the current unresolved situation, as the estate tax is scheduled to be the larger events that made them into eliminated in 2010, then reinstituted at full strength in 2011. the 20th century’s greatest cultural As this magazine went to press, the Senate had not yet passed a companion to the phenomenon. House repeal bill. If you want to know what’s likely to happen, ask Graetz.Œ