14 15 yale law report summer 2013

books in print Here’s just a sampling of the many other books recently Jack Fuller, Editor written or edited by our alumni, faculty, staff, and students. Restoring Justice: The Speeches of We welcome your submissions. Attorney General Edward H. Levi Please contact us: [email protected]. University of Chicago Press, 2013

Fuller ’73 has selected speeches by Levi ’38 jsd that set out the Jonathan R. Macey ’82, attorney general’s view of the Logan Beirne considerable challenges he Sam Harris Professor of Corporate Law, Corporate Finance, and Securities Law Blood of Tyrants: faced: restoring public confi- The Death of Corporate Reputation: & the Forging dence through discussion and How Integrity Has Been Destroyed on Wall Street of the Presidency Anupam Chander acts of justice, combating the Financial Times Press, 2013 Encounter Books, 2013 The Electronic Silk Road: corrosive skepticism of the How the Web Binds the World Together For more than a century, companies credit rating agencies and law firms, among other Wall Delving into the forgot- time, and ensuring that the executive branch in Commerce would behave judicially. Also included are seeking access to the U.S. markets made huge investments Street mainstays, continue to thrive despite reputations for ten—and often lurid—facts of the Revolutionary War, Press, 2013 addresses and Congressional testimonies that in their reputations. In order to cultivate and maintain rep- incompetence or shady dealings or simply for putting their Beirne ’11 focuses on George speak to issues that were hotly debated at the utations as faithful brokers and intermediaries they treated own interests ahead of their customers. This book explains Chander ’92 provides a Washington as he shaped time, including electronic surveillance, execu- customers well— sometimes enduring losses in the process this unfortunate phenomenon and suggests what the discussion of the law that the very meaning of the tive privilege, separation of powers, antitrust when necessary to do right by their customers. Today, the future holds for Wall Street after the crisis.” relates to global Internet United States Constitution enforcement, and the guidelines governing reputations of many of the major players on Wall Street are commerce. Addressing in the heat of battle. up-to-the-minute exam- the FBI—many of which remain relevant in shambles. Customers appear to have become one-off Beirne uses previously ples, such as Google’s today. “counter-parties” to whom no duties are owed and no loy- unexplored documents such as General struggles with China, the alty is required. Even regulators are viewed as captured and Washington’s letters debating torture, Pirate Bay’s skirmishes ineffective in protecting investors. an eyewitness account of the military with Hollywood, and the In his new book, The Death of Corporate Reputation: How tribunal that executed a British prisoner, outsourcing of services to W. Michael Reisman Integrity Has Been Destroyed on Wall Street, Founders’ letters warning against govern- , the author analyzes the difficulties The Quest for World Order Professor Jonathan Macey ’82 explains the demise of reputa- ment debt, and communications pointing of regulating Internet trade. Chander then and Human Dignity tion in capital markets and corporate finance. Why, Macey to a power struggle between Washington lays out a framework for future policies, in the Twenty-first Century asks, have so many firms lost interest in reputational capital? and the Continental Congress. showing how countries can dismantle Martinus Nijhoff, 2013 The change from the old reputational model to the new barriers while still protecting consumer International law’s archipelago is laissez-faire one, Macey argues, is largely the result of three Robert H. Bork interests. Saving Justice composed of legal “islands,” which are factors: (1) the growth of reliance on regulation rather than Encounter Books, 2013 highly organized, and “offshore” zones Susan P. Crawford reputation as the primary mechanism for protecting cus- manifesting a much lower degree of From the ousting of Vice Captive Audience: tomers; (2) the increasing complexity of regulation, which legal organization. Each requires a dif- President Spiro Agnew, The Telecom Industry and Monopoly made technical expertise rather than reputation the pri- ferent mode of decisionmaking, each to the discharge of the Power in the New Gilded Age mary criterion on which customers choose who to do busi- further complicated by the stress of radi- Watergate special prosecu- Yale University Press, 2012 ness with in today’s markets; and (3) the rise of the “cult of cal change. This book is concerned, frst, tor, an event known as the personality” on Wall Street, which has led to a secular Crawford ’89 explores with understanding and assessing the Saturday Night Massacre, demise in the relevance of companies’ reputations and the why Americans are aggregate performance of the world con- this posthumously pub- concomitant rise of individual rainmakers’ reputation as now paying much more stitutive process, in present and projected lished autobiography the basis for premium pricing of financial services. “The SEC, certain banks but getting much less constructs; second, with providing the offers a firsthand, insider when it comes to high- intellectual tools that can enable those Macey demonstrates how and why poorly considered reg- account of the whirlwind and investment banks, credit speed Internet access. involved in making decisions to be more ulation has undermined traditional trust mechanisms of events that engulfed the administra- rating agencies and law Using the 2011 merger effective, whether they are operating in throughout financial institutions, accounting and law tion during the last half of 1973 and the between Comcast and islands or offshore; and, third, with inquir- firms, credit rating agencies, and stock exchanges, and he first few months of 1974.(See page 34 for firms, among other Wall Street NBC Universal as a lens, ing into ways the international legal offers a path back to corporate trust and integrity. a tribute to Robert Bork.) mainstays, continue to thrive she examines how we system might be improved. Reisman ’64 “For years I have discussed the economic theory of repu- have created the biggest monopoly since llm, ’65 jsd identifes the individual as tation in my classes. It finally dawned on me that the tradi- despite reputations for the breakup of Standard Oil a century ago. the ultimate actor in international law tional economic theory, which posits that financial firms incompetence or shady dealings or simply for This book explores how telecommunica- and explores the dilemmas of meaningful and regulators must have strong reputations for integrity tions monopolies have affected the daily individual commitment to a world order in order to survive, has lost its explanatory power,” Professor putting their own interests ahead of their lives of consumers and also America’s of human dignity amid interlocking com- Macey said. “The SEC, certain banks and investment banks, customers.” global economic standing. munities and overlapping loyalties. 16 17 yale law report summer 2013

Jill R. Hodges, Anne Marie Kimball, Saru Jayaraman Timothy D. Lytton Richard L. Revesz and and Leigh Turner, Editors Behind the Kitchen Door Kosher: Private Regulation Michael A. Livermore, Editors Risks and Challenges in Cornell University Press, 2013 in the Age of Industrial Food The Globalization of Cost-Benefit Medical Tourism Press, 2013 Analysis in Environmental Policy How do restaurant Praeger, 2012 , 2013 workers live on some Generating more than A multidisciplinary, international of the lowest wages in $12 billion in annual In a book that includes team (including Hodges ’78 msl) America? And how do sales, kosher food is both theoretical and examines the growing global poor working condi- big business. It’s also Gerard M. Magliocca practical discussion, phenomenon of cross-border tions—discriminatory an unheralded story American Founding Son: Revesz ’83 and Livermore travel for procedures ranging labor practices, exploi- of successful private- John Bingham and the Invention of examine how cost- from tummy tucks to heart sur- tation, and unsanitary sector regulation in an the Fourteenth Amendment benefit analysis can help gery—and the challenges that kitchens—affect the era of growing concern NYU Press, 2013 developing and emerging meals that arrive at our over the government’s arise when health care becomes John Bingham was the countries confront the restaurant tables? Jayaraman ’00, who ability to ensure food a global commodity in a largely architect of the rebirth of next generation of envi- launched the national restaurant workers’ safety. Lytton ’91 uncovers how inde- unregulated market. Topics explored the United States following ronmental and public- organization Restaurant Opportunities pendent certification agencies rescued include the paucity of legal remedies avail- the Civil War. Drawing on his health challenges. This book examines the Centers United, sets out to answer these American kosher supervision from fraud Noah Messing able when procedures go awry; potential personal letters and speeches, growing reach of cost-benefit analysis; questions by following the lives of restau- and corruption and turned it into a model The Art of Advocacy: consequences when patients cross borders the book traces Bingham’s presents relevant case studies where it has rant workers in City, Washington, of nongovernmental administration. Briefs, Motions, and Writing for medical procedures that are illegal in life from his humble roots been incorporated around the world; and D.C., Philadelphia, Los Angeles, Chicago, Strategies of America’s Best Lawyers their home countries; and the relationship in Pennsylvania through includes a discussion on the essential insti- Houston, Miami, Detroit, and New Orleans. Aspen Publishers, 2013 of medical tourism to the international his career as a leader of the tutional issues when adopting cost-benefit spread of infectious disease. Republican Party. Magliocca analysis in developing countries. messing ’00, lecturer in the ’98 argues that Bingham and his con- Practice of Law and Legal Writing at YLS, gressional colleagues transformed the Barbara Paul Robinson presents more than 150 examples of Rosemary Verey: Constitution, and did so with the same masterful advocacy to show lawyers The Life and Lessons of Richard R.W. Brooks ingenuity that their forbears used to create how to write winning motions and a Legendary Gardener Carol M. Rose a more perfect union in the 1780s. briefs. The book focuses on the strategic Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms David R. Godine, 2012 and substantive choices that top , 2013 Robert Maguire Robinson ’65 tells the litigators make, drawing examples from Ceremonies of Bravery: important, timely, and controversial As an unprecedented number of African Americans migrated from the rural South story of Rosemary Verey, Oscar Wilde, Carlos Blacker, cases. Detailed annotations give readers in the early 20th century in search of better jobs and better lives, many white communi- the last of the great and the Dreyfus Affair insight into what makes each ties created covenants designed to restrict property ownership and residency by race. English garden legends. Oxford University Press, 2013 document so effective. The book “As legal instruments, existing in offcial records, racial covenants took on the mantle She was the acknowl- presents a host of storytelling, stylistic, of civic acceptability,” write Professors Richard R.W. Brooks and Carol M. Rose in their new This study of the friendship edged apostle of the and organizational strategies, and it book Saving the Neighborhood: Racially Restrictive Covenants, Law, and Social Norms. between the prolific writer “English style” at her spends seven chapters showing how to “In this respectable legal form, racial covenants could be deployed by a variety of profes- Oscar Wilde and Carlos home at Barnsley House, build different types of arguments, sional institutions, becoming tools for real estate developers, brokers, fnancial agents, Blacker draws on Blacker’s and the “must have” making it the most extensive and insurance institutions—including those of the U.S. government.” diaries to paint a rich portrait adviser to the rich and famous, including exploration offered by any book in the Brooks and Rose examine how restrictive covenants and social norms reinforced of Wilde’s dear friend in their Prince Charles and Elton John. feld about how to write the each other to become powerful guarantors of segregation until 1948, when the Supreme shared social milieu, provid- “Argument” section of a motion or brief. Court decision in Shelly v. Kraemer declared the covenants legally unenforceable. Saving ing an account that adds The Appendices provide a wealth of the Neighborhood goes on to examine why the covenants continued to exert influence to the already vivid picture additional resources, including Karl even after the Court’s ruling. of Wilde’s life. Using these Llwellyn’s previously unpublished Because racial covenants lived on in real estate records they were still able to influ- diaries, alongside other archival sources, advice from 1957 about the art of ence the beliefs and decisions of real estate professionals, home buyers and sellers. Even Maguire ’53 provides new insight into a advocacy, which Dean Robert Post ’77 after Shelley, racial covenants remained effective as signals, creating common knowl- special relationship while also offering a called the “best advice on legal writing edge of local attitudes and likely actions, unique perspective on the Dreyfus Affair. I’ve ever seen.” “In this respectable legal form, racial covenants could which in turn swayed the behaviors be deployed by a variety of professional institutions, becoming tools of banks, brokers, developers, insur- (See page 46 for more about legal for real estate developers, brokers, financial agents, ers, excluded minorities, and the white writing and Messing’s new book.) and insurance institutions—including those of the U.S. government.” neighbors. Those signals remained oddly durable even as housing discrimination became increasingly unacceptable. Over time the impact of racial covenants would fade, but their legal and social signifcance lingered well beyond 1948. 18 19 yale law report summer 2013 books in print

Teemu Ruskola Laura S. Underkuffler Ian Ayres ’86 Digital Resources for Legal Orientalism: Captured By Evil: and Gregory M. Klass ’02 China, the United States, Sonia Sotomayor The Idea of Corruption in Law Studies in Contract Law, 8th edition Alumni Bibliophiles and Modern Law My Beloved World Yale University Press, 2013 Foundation Press, 2012 Harvard University Press, 2013 Knopf, 2013 According to Underkuffler How did lawlessness The firstH ispanic ’87 llm, “corruption” is Jasper L. Cummings, Jr. ’71 become an axiom about and third woman a concept based on reli- The Supreme Court, Federal Taxation, Chineseness rather than a appointed to the giously revealed ideas and the Constitution fact needing to be verified United States Supreme of good and evil. But Lincoln’s Code: The Laws of War in American Bar Association empirically, and how did the Court, Sotomayor ’79 the notion of corrup- American History (Free Press, 2012) Section of Taxation, 2013 United States assume the has become an instant tion defies the ordinary by Professor John Fabian Witt ’99 American icon. Now, has received numerous awards mantle of law’s universal categories by which law William N. Eskridge, Jr. ’78, with a candor and since its publication last year. appeal? In a series of wide- defines crimes—catego- Phillip P. Frickey, Elizabeth Garrett ranging inquiries, Ruskola intimacy never under- ries that punish acts, not Among those honors: the Bancroft Cases and Materials on Statutory ’95 investigates the history taken by a sitting Justice, character, and that eschew punishment on Prize for distinguished work in Interpretation of “legal Orientalism”: a set of globally cir- she recounts her life from a Bronx hous- the basis of religion and emotion. Drawing American history; the Willard Hurst West, 2012 culating narratives about what law is and ing project to the federal bench, a journey on contemporary examples, Underkuffler Book Prize of the Law and Society who has it. that offers an inspiring testament to her explores the implications and dangers of Association; and the American book talks own extraordinary determination and the maintaining such an archaic concept at the Bar Association’s 2013 Silver Gavel William N. Jr. Eskridge Jr. ’78, www.vimeo.com/yalelawlibrary power of believing in oneself. heart of criminal law. Award. Lincoln’s Code was also a Elizabeth Garrett The Lillian Goldman Law Library David Schorr finalist for the Pulitzer Prize in and James J. Brudney ’79 sponsored nine book talks during Cases and Materials on Legislation: The Colorado Doctrine: History. The book was named a New the past academic year, including Statutes and the Creation Water Rights, Corporations, York Times Notable Book for 2012; those on new books authored by of Public Policy, 2012 Supplement and Distributive Justice a Kirkus Books Best of 2012; and Professors Akhil Reed Amar ’84, West, 2012 on the American Frontier was a New York Times Book Review Jonathan R. Macey ’82, Jerry L. Yale University Press, 2012 Editor’s Choice. Mashaw, James Q. Whitman ’88, Making extensive use of Douglas A. Kysar, and John Fabian Witt ’99. archival and other primary The Health Care Case: James A. Henderson, sources, Schorr ’03 llm, ’05 The Supreme Court’s Decision and Its Implications Richard N. Pearson ’64 llm, jsd demonstrates that the Edited by Nathaniel Persily, Gillian E. Metzger John A. Siciliano The Torts Process, 8th Edition development of the “appro- and Trevor W. Morrison Wolters Kluwer, 2012 priation doctrine,” a system of Oxford University Press, 2013 also of note private rights in water, was The Supreme Court’s decision in the Health Care Case, NFIB Renata Adler ’79 part of a radical attack on v. Sebelius, gripped the nation’s attention during the spring Raphael Lemkin Pitch Dark monopoly and corporate of 2012. The implications of the Supreme Court’s complicated Totally Unofficial: New York Review of Books Classics, 2013 power in the arid West. It and fractured decision are still emerging. The Autobiography of Raphael Lemkin access to jstor describes how Colorado miners, irriga- The recently published The Health Care Case is the frst Yale University Press, 2013 www.aya.yale.edu/content/jstor-access tors, lawmakers, and judges forged a book of collected academic law essays on NFIB v. Sebelius. Renata Adler ’79 Alumni can freely use all JSTOR system of private property in water Speedboat Members of the Yale Law School faculty authored fve of Daniel S. Markovits collections licensed by Yale. JSTOR based on a desire to spread property New York Review of Books Classics, 2013 the book’s twenty essays, with diverse contributions that Contract Law and Legal Methods (short for “journal storage”) is a digital and its benefits as widely as possible highlight the decision’s signifcance for numerous areas Foundation Press, 2012 archive of more than 1,000 academic among independent citizens. of the law. Professor Jack M. Balkin writes on the constitu- Ian Ayres ’86 journals and one million primary tional aspects of the case; Professor John Fabian Witt ’99 La discriminación en el mercado. sources. writes on the case’s historical antecedents; Professors Jerry L. Ian Ayres y los estudios empíricos sobre Mashaw and Michael J. Graetz cover the case’s implications desigualdad correction for social insurance; Associate Professor Abbe R. Gluck ’00 discusses University of Palermo Press, 2013 The Winter 2013 issue of the Yale Law its signifcance for federalism; and Knight Distinguished Journalist- Report included a synopsis of Taming in-Residence Linda Greenhouse ’78 msl writes on the dynamics of the Globalization: International Law, the U.S. Supreme Court. Constitution, and the New World Order Interested in hearing faculty (Oxford University Press, 2012) co-authored members talk about their writing? by Julian Ku ’98 and John Yoo ’92. The Law Videos of book talks with faculty Report apologizes for omitting Mr. Ku’s are available at www.law.yale. graduation year in that earlier synopsis. edu/videos.