Law Commons^™

An Appeal To Books, Amir H. Ali

Michigan Law Review

This feels a fit, even urgent, moment to celebrate our books and the role they play vis-à-vis the law, the courts, and the truth.

As this issue goes to print, our nation’s highest court faces forceful criticism that some of its most significant decisions have been detached from objective fact. In recent Terms, the Supreme Court’s majority has doubled down on deciding major constitutional questions based on “history and tradition”—that is, the majority’s understanding of what the nation was like centuries ago. Just as quickly as these justices praised the objectivity of their fealty to history, they met widespread rebuke …

Editors' Note, Michigan Law Review

Michigan Law Review

A reflection on the origins of the Michigan Law Review book review issue.

The Tragedy Of Justice Scalia, Mitchell N. Berman

Michigan Law Review

Review of A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia .

Justice Scalia And The Idea Of Judicial Restraint, John F. Manning

Michigan Law Review

Review of A Matter of Interpretation: Federal Courts and the Law by Antonin Scalia .

Foreword: The Books Of Justices, Linda Greenhouse

Michigan Law Review

For this Michigan Law Review issue devoted to recently published books about law, I thought it would be interesting to see what books made an appearance in the past year’s work of the Supreme Court. I catalogued every citation to every book in those forty opinions in order to see what patterns emerged: what books the justices cited, which justices cited which books, and what use they made of the citations. To begin with, I should define what I mean by “books". For the purposes of this Foreword, I excluded some types of reading matter that may have a book-like …

The New Front In The Clean Air Wars: Fossil-Fuel Influence Over State Attorneys General- And How It Might Be Checked, Eli Savit

Michigan Law Review

Review of Struggling for Air: Power and the "War On Coal" by Richard L. Revesz and Jack Leinke, and Federalism on Trial: State Attorneys General and National Policymaking in Contemporary America by Paul Nolette.

Frontiers Of Sex Discrimination Law, Jessica A. Clarke

Michigan Law Review

Review Gender Nonconformity and the Law by Kimberly A. Yuracko.

Slaves As Plaintiffs, Alfred L. Brophy

Michigan Law Review

Review of Redemption Songs: Suing for Freedom Before Dred Scott by Lea VanderVelde.

An Invisible Crisis In Plain Sight: The Emergence Of The "Eviction Economy," Its Causes, And The Possibilities For Reform In Legal Regulation And Education, David A. Dana

Michigan Law Review

Review of Evicted: Poverty and Profit in the American City by Matthew Desmond.

Linnaean Taxonomy And Globalized Law, Ronald J. Krotoszynski Jr.

Michigan Law Review

Review of The Court and the World: American Law and the New Global Realities by Stephen Breyer.

Digging Into The Foundations Of Evidence Law, David H. Kaye

Michigan Law Review

Review of The Psychological Foundations of Evidence Law by Michael J. Saks and Barbara A. Spellman.

The Racist Algorithm?, Anupam Chander

Michigan Law Review

Review of The Black Box Society: The Secret Algorithms That Control Money and Information by Frank Pasquale.

Troubled Waters Between U.S. And European Antitrust, D. Daniel Sokol

Michigan Law Review

Review of The Atlantic Divide in Antitrust: An Examination of US and EU Competition Policy by Daniel J. Gifford and Robert T. Kudrle.

Bureaucracy As Violence, Jonathan Weinberg

Michigan Law Review

Review of The Utopia of Rules: On Technology, Stupidity, and the Secret Joys of Bureaucracy by David Graeber.

The Immanent Rationality Of Copyright Law, Shyamkrishna Balganesh

Michigan Law Review

Review of What’s Wrong with Copying? by Abraham Drassinower.

Thick Law, Thin Justice, Patrick Macklem

Michigan Law Review

Review of The Thin Justice of International Law: A Moral Reckoning of the Law of Nations by Steven R. Ratner.

Private Rights And Private Wrongs, Andrew S. Gold

Michigan Law Review

Review of Private Wrongs by Arthur Ripstein.

The Crime Lab In The Age Of The Genetic Panopticon, Brandon L. Garrett

Michigan Law Review

Review of Unfair: The New Science of Criminal Injustice by Adam Benforado, Inside the Cell: The Dark Side of Forensic DNA by Erin E. Murphy, and Cops in Lab Coats: Curbing Wrongful Convictions Through Independent Forensic Laboratories by Sandra Guerra Thompson.

The Enduring Value Of Books Related To The Law: A Librarian's Perspective, Linda S. Maslow

Michigan Law Review

In the 1979 inaugural issue of the Michigan Law Review’s annual survey of books related to the law, Professor Cavers wrote an enthusiastic and hopeful introduction. He characterized the journal’s effort as a “bold innovation” that would benefit lawyers; law professors, both domestic and foreign; scholars in other disciplines, such as the social sciences; and the marketplace of ideas generally. As the annual survey approached its twentieth anniversary, Professor Schneider provided a fascinating, frank description of the Book Review issue’s origins during his tenure as the Michigan Law Review’s Editor- in-Chief. Happily, this annual Book Review issue continues to thrive. …

Nudge, Choice Architecture, And Libertarian Paternalism, Pierre Schlag

Michigan Law Review

By all external appearances, Nudge is a single book-two covers, a single spine, one title. But put these deceptive appearances aside, read the thing, and you will actually find two books-Book One and Book Two. Book One begins with the behavioral economist's view that sometimes individuals are not the best judges of their own welfare. Indeed, given the propensity of human beings for cognitive errors (e.g., the availability bias) and the complexity of decisions that need to be made (e.g., choosing prescription plans), individuals often make mistakes. Enter here the idea of the nudge-the deliberate effort to channel people into …

Why Care About Mass Incarceration?, James Forman Jr.

Michigan Law Review

Advocates for less punitive crime policies in the United States face long and dispiriting odds. The difficulty of the challenge becomes clear if we compare our criminal justice outcomes with those of other nations: We lock up more people, and for longer, than anyone else in the world. We continue to use the death penalty long after Europe abandoned it, we are the only country in the world to lock up juveniles for life, and we have prisoners serving fifty-year sentences for stealing videotapes from Kmart. Our courts offer little relief: the German Constitutional Court prohibits a sentence of life …

The Price Of Conflict: War, Taxes, And The Politics Of Fiscal Citizenship, Ajay K. Mehrotra

Michigan Law Review

This Review proceeds in four parts, paralleling the chronological organization of War and Taxes. It focuses mainly on the book's analysis of the leading modern American wars, from the Civil War through the global conflicts of the twentieth century, up to the recent war on terror. Part I contrasts the tax policies of the Union and Confederacy during the Civil War to show how the Lincoln Administration was able to overcome Yankee resistance to wartime tax hikes to wage a war against a Southern Confederacy that resolutely resisted any type of centralized taxation until, of course, it was too late. …

Aldous Huxley's Brave New World - Still A Chilling Vision After All These Years, Bob Barr

Michigan Law Review

In Part I of this Review, I provide an overview of Brave New World and place it in its proper historical context. In Part II, I explore the parallels between Huxley's World State and post-9/11 America. In Part III, I argue that Brave New World provides prescient warning signs about the dangers of excessive government interference in the economy-warning signs that are of particular importance in the face of the recent economic crisis.

Rationalism In Regulation, Christopher C. Demuth, Douglas H. Ginsburg

Michigan Law Review

Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health, by Richard L. Revesz and Michael A. Livermore, aims to convince those who favor more government regulation-in particular environmental groups-that they should embrace cost-benefit analysis and turn it to their purposes. Coauthored by a prominent law school dean and a recent student with a background in environmental advocacy, the book is a jarring combination of roundhouse political polemics and careful academic argument. Sweeping pronouncements are followed by qualifications that leave the sweep of the pronouncements in doubt- rather like the give-and-take of the law school classroom …

Misunderstanding Lawyers' Ethics, Monroe H. Freedman, Abbe Smith

Michigan Law Review

The title of Daniel Markovits's book, A Modern Legal Ethics, gives the impression that it is a comprehensive treatise on contemporary lawyers' ethics. The contents of the book, however, are both more limited and more expansive than the title suggests. Markovits's treatment of lawyers' ethics concerns itself with what he conceives to be the pervasive guilty conscience of practicing lawyers over their "professional viciousness" (p. 36), and how lawyers can achieve a guilt-free professional identity "worthy of ... commitment" (p. 2). Markovits's goal in the book is to "articulat[e] a powerful and distinctively lawyerly virtue" (p. 2), one that …

Can Criminal Law Be Controlled?, Darryl K. Brown

Michigan Law Review

It is a bizarre state of affairs that criminal law has no coherent description or explanation. We have standard tropes to define criminal law, but they obscure as much as they clarify and are honored in the breach as much as the rule. Crimes, for instance, are defined by wrongdoing and culpability; to be guilty, one must do a wrongful act in a blameworthy manner, that is, as a responsible agent without excuse or justification. And crimes define public wrongs, which are distinct from private wrongs. Further, we criminalize only harmful conduct, or risk-creating conduct, or immoral conduct, or conduct …

A Planet By Any Other Name…, Kimberly Kessler Ferzan

Michigan Law Review

In case you haven't heard, Pluto isn't a planet anymore (and maybe it never was). In grade school, we all memorized the planets, giving little thought to what made something a planet besides revolving around the Sun and being part of some familiar mnemonic. However, scientific discoveries about Pluto and other parts of space led scientists to question Pluto's planetary status and ultimately, to strip Pluto of its standing among the planets. This leads to the inevitable question-what is a planet?-which turns out to be a more difficult and fascinating question than one might think. The Pluto Files grapples with …

A Portrait Of The Internet As A Young Man, Ann Bartow

Michigan Law Review

In brief, the core theory of Jonathan Zittrain's 2008 book The Future of the Internet-And How to Stop It is this: good laws, norms, and code are needed to regulate the Internet, to prevent bad laws, norms, and code from compromising its creative capabilities and fettering its fecund flexibility. A far snarkier if less alliterative summary would be "We have to regulate the Internet to preserve its open, unregulated nature." Zittrain posits that either a substantive series of unfortunate Internet events or one catastrophic one will motivate governments to try to regulate cyberspace in a way that promotes maximum stability, …

A Review Of Richard A. Posner, How Judges Think (2008), Jeffrey S. Sutton

Michigan Law Review

I was eager to enter the judiciary. I liked the title: federal judge. I liked the job security: life tenure. And I could tolerate the pay: the same as Richard Posner's. That, indeed, may have been the most flattering part of the opportunity-that I could hold the same title and have the same pay grade as one of America's most stunning legal minds. Don't think I didn't mention it when I had the chance. There is so much to admire about Judge Posner-his lively pen, his curiosity, his energy, his apparent understanding of: everything. He has written 53 books, more …

The Vitality Of The American Sovereign, Todd E. Pettys

Michigan Law Review

The proposition that "the people" are the preeminent sovereign in the United States has long been a tenet of American public life. The authors of the Declaration of Independence characterized the American people's sovereignty as a "self-evident" truth when announcing the colonies' decision to sever their ties with Great Britain, the delegates to the Philadelphia Convention in 1787 invoked the people's sovereignty when framing the nation's Constitution, and Americans today exercise their sovereignty each time they cast their ballots on Election Day. Yet what prerogatives, precisely, does the people's sovereignty entail? In modern America, where neither a bloody revolution nor …