14 15 yale law report summer 2008

books in print Here’s just a sampling of the many other books recently Philip Galanes written or edited by our alumni, faculty, staff, and students. Emma’s Table: A Novel Harper Collins Publishers, 2008 We welcome your submissions. If possible, please send us two review copies of your book: one for the Lillian Goldman Novelist Galanes ’91 offers the tale of Emma Sutton—a one-time media darling Law Library and one for the Alumni Reading Room. who is fresh from a yearlong stretch in prison. Emma finds her life just as she left it before her incarceration: filled with glit- tering business successes and bruising Michael Abramowicz Edward H. Bonekemper III personal defeats. Emma is eager to put her Predictocracy: Market Mechanisms for Grant and Lee: Victorious American “difficulties” behind her, but the ruthless- Public and Private Decision Making and Vanquished Virginian ness with which she pursues an exquisite Press, 2008 Praeger Publishers, 2007 antique dining table underscores just how Predicting the future is a Bonekemper ’67 offers a hard true redemption is going to be. defendant were assured that they would be safe from dam- serious business for virtu- multi-theater, war-long com- From Moral nation as long as their doubts were not “reasonable.” ally all public and private parison of the commanding Michael D. Goldhaber In making his case, Whitman delves into a history that institutions, for they must general skills of Ulysses S. A People’s History of the European reaches deep into Antiquity, when the Christian theology often make important Grant and Robert E. Lee. The Court of Human Rights Comfort to Moral of judging first formed, and continues into the Middle Ages, decisions based on such book clarifies the impact Rutgers University Press, 2007 when the Common Law and Civil Law traditions emerged predictions. Abramowicz both generals had on Goldhaber ’93 introduces Certainty out of the decline of the judicial ordeal. His book then car- ’98 explores how institu- the outcome of the Civil American audiences to the ries the story into the seventeenth and eighteenth centu- tions from legislatures to War while also providing judicial arm of the Council corporations might improve their predic- readers with eighteen battle maps and James Q. Whitman ries, when the “reasonable doubt” rule emerged during an of Europe, whose mission is tions and arrive at better decisions by a set of appendices that describes the The Origins of Reasonable Doubt: era of constitutional and legal crisis in the Anglo-American centered on interpreting the means of prediction markets, a promising casualties incurred by each army, battle Theological Roots of the Criminal Trial world. Throughout all these centuries, he argues, Christian European Convention on new tool with virtually unlimited potential by battle. Yale University Press, 2008 judges and jurors both sought “moral comfort”— means of assur- Human Rights. He describes applications. ing themselves that they could convict defendants without fear the ways in which the Mary L. Dudziak Council has routinely con- “Beyond a reasonable doubt” is a key phrase in of risking their own salvation. Exporting American Dreams: A.C.E. Bauer fronted nations over their most culturally- the American criminal justice system, heard from the highest Today, these theological concerns have vanished. Yet even in No Castles Here ’s African Journey sensitive, hot-button issues, arguing that courts in the nation to prime-time television dramas. Yet, as the absence of the psychological context of moral peril in which Random House Books for Young Readers, 2007 Oxford University Press, 2008 in the battle for the world’s conscience, the Ford Foundation Professor of Comparative and Foreign Law our ancestors lived, the reasonable doubt rule has survived, but In her first novel, Alice Thurgood Marshall became court in Strasbourg may be pulling ahead. James Q. Whitman ’88 observes in The Origins of Reasonable Doubt: has come to be viewed as a protection for defendants—a means Bauer ’86 tells the story of a living icon of civil rights of making conviction harder, rather than easier for jurors. No Theological Roots of the Criminal Trial, the term has become fraught an eleven-and-a-half year when he argued Brown v. David S. Grewal with uncertainty of meaning as judges, lawyers, and jurors longer seen as a means of moral comfort for jurors, the rule is old boy in Camden, New Board of Education before Network Power: struggle with vague definitions of what makes a defendant now a type of exhortation against easy conviction, a warning to Jersey. Written for ages the Supreme Court in 1954. The Social Dynamics of Globalization guilty “beyond a reasonable doubt.” jurors that they must have moral certainty in their decision. nine and up, the book tells Six years later, he was at Yale University Press, 2008 Whitman writes in the book’s introduction: Whitman writes: the story of Augie Boretski, a crossroads. A rising Grewal ’02 draws on several who is badly bullied but generation of activists ‘Beyond a reasonable doubt’ is among the most majestic phrases The problems of our world are not the problems of the eighteenth centuries of political and finds respect with the help were making sit-ins and social thought to show how in our law; but in practice it is vexingly difficult to interpret and century, or the thirteenth century, or the fourth century. Jurors of a gay mentor from the Big Brothers pro- demonstrations rather than lawsuits globalization is best under- apply. There is always some possible uncertainty about any case. today bring relatively few Christian qualms to the process of gram, a really tough sixth grade teacher, the hallmark of the civil rights move- stood in terms of a power Exactly what kind of uncertainty counts as a legal ‘doubt’? judgment, and we have little need for a rule intended to coax and the last of the fairy godmothers. ment. What role, he wondered, could inherent in social relations, Exactly when are legal ‘doubts’ about the guilt of the accused them into convicting. Moreover, they rarely face cases in which he now play? When in 1960 the Kenyan which he calls network ‘reasonable’ ones? there is no real factual uncertainty. We can no longer instruct independence leaders asked him to power. Using this frame- jurors that their job is to ‘confirm’ an obvious truth. The very help write their constitution, Marshall work, he demonstrates In this 288-page historical examination, Whitman argues that task of the trial has changed in a modern urban world. threw himself into their cause. Dudziak how our standards of social coordination the modern legal system has lost sight of the original purpose ’84 recounts the untold story of Marshall’s both gain in value the more they are used of the reasonable doubt rule. According to Whitman, the idea Asking twenty-first century jurors to abide by an eighteenth- journey to Africa. and undermine the viability of alternative of “reasonable doubt” was originally not a rule of law at all, but century instruction, Whitman says, “is neither wise nor kind.” forms of cooperation. a rule of theology. And its original function was not to protect Ultimately Whitman argues for a return to the original spirit the accused, but to protect the souls of jurors. The doctrine, he of reasonable doubt—that is, a focus on the fact that a juror’s explains, was created to make conviction easier —jurors who decision is, at its core, a moral one on which another person’s feared losing their own salvation in convicting an innocent fate rests. 16 17 yale law report summer 2008 books in print

Charles Halpern Daniel J. Kornstein Richard Revesz and Michael Livermore Making Waves and Riding the Currents: Partial Verdicts: Essays on Law and Life Retaking Rationality: Activism and the Practice of Wisdom AuthorHouse, 2008 How Cost Benefit Analysis Can It is a bit odd for any nation to be deeply divided, Berrett-Koehler Publishers, 2008 Better Protect the Environment In essays that are by turns and Our Health witlessly vulgar, religiously orthodox, Public interest advocate and serious, whimsical, medita- Oxford University Press, 2008 social innovator Halpern ’64 tive, and witty, Kornstein ’73 militarily aggressive, economically savage, offers a memoir about working explores various aspects of Revesz ’83 and Livermore argue and ungenerous to those in need, while maintaining for a more just, compassionate, the legal profession based that one of the least under- and sustainable world while on his thirty-five years of “a political stability, a standard of living, and love stood—and most important— cultivating the wisdom that experience as an attorney. causes of our failure to protect of country that are the envy of the world supports and deepens this work. Mary Gardiner Jones He uses the legal discipline the environment has been a With forewords by Robert B. Tearing Down Walls: as a springboard for musings of a general misguided rejection of reason. —all at the same time. Reich ’73 and the Dalai Lama, A Woman’s Triumph nature. They believe that by embrac- the book aims to teach readers about Hamilton Books, 2007 ing and reforming cost-benefit integrating the inner and outer work In this memoir, Jones ’48 Charles Lane analysis, and by joining reason of their lives through the practice of The Day Freedom Died: offers a look back at her and compassion, progressive groups can wisdom. The Colfax Massacre, the Supreme Court, life—including her relation- help enact strong environmental and and the Betrayal of Reconstruction ship with her forceful and regulation. Henry Holt and Co., 2008 ” Joshua Hawley domineering mother, the vir- Peter H. Schuck and James Q. Wilson, Editors : Understanding America: tual absence of her hearing- ’s Lane Edwin S. Rockefeller Preacher of Righteousness The Antitrust Religion The Anatomy of an Exceptional Nation impaired alcoholic father, ’97 msl presents the untold Yale University Press, 2008 Cato Institute, 2007 PublicAffairs, 2008 and the workplace gender story of the slaying of a Hawley ’06 explores the historical barriers she confronted at Southern town’s ex-slaves Drawing on fifty years of context of Theodore Roosevelt’s politics, every step of her legal and government and a white lawyer’s historic experience with U.S. anti- Simeon E. Baldwin Professor of Law Peter Schuck its intellectual sources, its practice, and its careers. The book chronicles the author’s battle to bring the perpetra- trust laws, Rockefeller ’51 and co-editor James Q. Wilson have collected essays effect on his era and our own. He finds that steps toward life as an attorney, corporate tors of the Colfax Massacre believes that lawmakers, from America’s leading social scientists in this 704-page Roosevelt developed a political science executive, Federal Trade Commissioner, to justice. A piece of histori- bureaucrats, academics, book devoted to answering the questions “What is centered on the theme of righteousness, and public service advocate. cal detective work, the book captures a and journalists use arbi- America?” and “How exceptional is it?” and this “warrior republicanism” was what gallery of characters from presidents to trary and irrational laws These are questions, they contend, that are not easily made the progressive era possible. Randall Kennedy townspeople and re-creates the bloody and enforcement mecha- answered even by their target audiences: well-educated Sellout: days of Reconstruction, when the brutal nisms to punish capital- Americans and cosmopolitan foreigners. They answer Ben W. Heineman Jr. The Politics of Racial Betrayal struggle for equality moved from the bat- ists rather than promote competition. them with twenty chapters by America’s leading social High Performance with High Integrity Pantheon, 2008 tlefield to communities across the nation. Everything most people know about anti- scientists analyzing our most important institutions, Harvard Business Press, 2008 public policy areas, and cultural domains. Kennedy ’82 grapples trust is wrong, he argues. In the book’s preface, they write, “For Americans Heineman ’71, former general with a stigma of our racial Eric L. Muller American Inquisition: The Hunt for marinating in their own society, a clear understanding counsel of GE, argues that high discourse: “selling out,” or III Japanese American Disloyalty The Myth of Judicial Activism: Making of [America’s] nature and distinctiveness remains elu- performance with high integrity racial betrayal, which is a in World War II Sense of Supreme Court Decisions sive. . .It is a bit odd for any nation to be deeply divided, should be the goal of contempo- subject of much anxiety The University of North Carolina Press, 2007 Yale University Press, 2008 witlessly vulgar, religiously orthodox, militarily aggres- rary corporations—and global and acrimony in Black sive, economically savage, and ungenerous to those in need, while maintaining capitalism—to avoid cata- America. He atomizes the In this examination of how Weighing in on the debate a political stability, a standard of living, and love of country that are the envy strophic legal and ethical lapses vicissitudes of the term civilian and military agen- over “judicial activism,” of the world—all at the same time. To do these things at once, America must but also to achieve affirmative and shows how its usage cies attempted to judge the Roosevelt ’97 examines indeed be unusual. Or even, as Alexis de Tocqueville said a century and a half benefits inside the company, in bedevils blacks and whites, while elucidat- loyalty of 40,000 American controversial Supreme Court ago, exceptional.” the marketplace, and in the broader soci- ing the effects it has on individuals and on citizens of Japanese ances- decisions through a lens of In their concluding chapter, Schuck and Wilson find cross-cutting themes that ety. He argues that CEOs must create an our society as a whole. The book considers try during World War II, constitutional interpreta- capture this exceptionalism: culture, constitutionalism, competition, diversity, affirmative culture by driving eight core the ways in which prominent members Muller ’87 argues that all tion. He clarifies the task civil society, welfare state, and demography. Understanding America also calls integrity principles and associated prac- of the black community—Colin Powell, government efforts at of the Supreme Court in attention to the country’s most pervasive problems, including the deep polar- tices deep into business operations. Condoleezza Rice, and Barack Obama, determining loyalty ultimately failed. The constitutional cases, then ization of the electorate, the decline of equality and social mobility, and wide- among others—have been stigmatized as methods of loyalty investigations of World sets out a model to describe how the Court spread family dysfunction. Ultimately, the editors argue, both the extraordinary sellouts. War II, he shows, cropped up again in the creates doctrine to implement the mean- successes and abject failures of the United States are closely tied to our sense Second Red Scare and the McCarthy period ing of the Constitution. Ultimately, he uses of freedom—and that redefining that sense of freedom might be the key to and, he argues, could easily arise again this model to examine the legitimacy of improving America. in the wake of modern domestic terror decisions. attacks. 18 19 yale law report summer 2008 books in print

Elyn R. Saks Philip G. Schrag and James Gustave Speth also of note The Center Cannot Hold: David Ngaruri Kenney The Bridge at the Edge of the World: My Journey Through Madness Asylum Denied: Capitalism, the Environment, and R.P. Anand ’62 llm, ’63 jsd Hyperion, 2007 A Refugee’s Struggle for Crossing from Crisis to Sustainability Compulsory Jurisdiction of the Save the Date Safety in America Yale University Press, 2008 International Court of Justice, 2nd ed. Saks ’86 was only eight, and living an oth- University of California Press, 2008 New States and International Law, erwise idyllic childhood in sunny 1960s Co-founder of the NRDC, 2nd edition October 3–5, 2008 Miami, when her first symptoms of Kenney and Schrag ’67 Yale University dean, and Sovereign Equality of States in schizophrenia appeared in the form of (who serves as Kenney’s former White House advi- International Law, 2nd ed. obsessions and night terrors. But it was attorney) tell the story sor Speth ’69 argues that Hope India Publications, 2008 not until she reached Oxford University of Kenney’s near-murder, the current of American- as a Marshall Scholar that her first full- imprisonment, and style consumer capitalism Morris L. Cohen and Kent C. Olson Alumni Weekend 2008 blown episode, complete with voices in torture in Kenya after must be altered in order to Legal Research in a Nutshell, 9th ed. her head and terrifying suicidal fantasies, leading a boycott pro- preserve a livable planet Thomson West, 2007 Join us in New Haven as we discuss the challenges forced her into a psychiatric hospital. testing his government’s for future generations. He facing the new presidential administration Now Professor of Law and Psychiatry at treatment of farmers; his argues that environmental degradation José Carlos de Magalhães the University of Southern California, her escape to the United States; and the obsta- is linked to growing social inequality and Direito Econômico Internacional: class years new book provides perspective as both cle course of ordeals and proceedings he the erosion of democratic governance and Tendências e Perspectivas, 2007 an expert and a sufferer of psychological faced as U.S. government agencies sought popular control. Juruá Editora, 2007 1943 disorder. to deport him to Kenya. O Supremo Tribunal Federal e o Direito 1948 David O. Stewart The Summer of 1787: Internacional 1953 Livaria do Avogado, 2000 The Men Who Invented the Constitution 1958 Simon & Schuster, 2007 1963 Martin Marcus ’74, In this fast-paced nar- Richard A. Greenberg, 1968 John A. Garver Professor of rative tale, Stewart ’78 Lynn W. L. Faherty, and Eve Cary 1973 chronicles the birth of Jurisprudence William N. Eskridge ’78 New York Criminal Law, 3rd ed. 1978 demonstrates that there is nothing new the Constitution, show- Thomson West, 2008 about the political and legal obsession ing that it was “an act of 1983 with the gay rights controversy. Eskridge inspired improvisation,” Abe Ordover ’61 1988 uses sodomy law as a lens through which fraught with passionate Imagining Nature II: Reflections 1993 conflict, highly-charged to examine the social history of changing Blurb, 2008 1998 sexual attitudes in America over the past bargaining, and hard-won 2003 two centuries. compromise. Jean Koh Peters In the book’s introduction, Eskridge Representing Children in Child writes, “A history of the crime against Marisa B. Van Saanen and Protective Proceedings: nature is, in some ways, a history of Katherine Marshall Ethical and Practical Dimensions, American sexuality and its social and Development and Faith: Where Mind, 3rd ed. legal regulation. That is, sodomy’s tale Heart, and Soul Work Together Michie, 2007 William N. Eskridge Jr. World Bank Publications, 2007 Dishonorable Passions: reflects the evolution of a culture that Sodomy Laws in America, 1861–2003 has remained ambivalent about the Van Saanen ’10 and John A. Ritter ’70 llm Viking, 2008 morality of pleasure.” Marshall explore and You Be the Judge IV Beginning with the American colo- highlight promising (Russian and English) nies and early states, which prohibited partnerships in the YBJ Publishing, 2007 sodomy as a “crime against nature,” world between secular Eskridge traces changes in American laws and faith development Susan Rose-Ackerman and attitudes through the 2003 Lawrence entities. They recount Economics of v. Texas decision. With dramatic stories the evolving history of Edward Elgar Publishing, 2008 of both the hunted (Walt Whitman relationships between and Margaret Mead) and the hunt- faith and secular development institutions Harold G. Wren ’57 jsd and ers (Earl Warren and J. Edgar Hoover), and focus on the Millennium Development Beverly J. Glascock Dishonorable Passions reveals how Goals as a common framework for action The Of Counsel Agreement: More information about Alumni Weekend 2008 will be posted on the Yale Law School American sodomy laws affected the lives and an opportunity for new forms of col- A Guide for Law Firm and Practitioner, website in the coming months. In the meantime, please visit www.law.yale.edu/ of both homosexual and heterosexual 3rd ed. laboration and partnership. alumniweekend to view streaming video and photographs from the 2007 reunion.

Americans throughout history. Services Media University Yale Sacco, K. William by Photograph American Bar Association, 2005