Lat's Legal Library (03.2022): Constitutional Crisis

Law and politics, the Supreme Court, free speech, criminal justice reform, and more.

Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, you can reach me by email at davidlat@substack.com, and you can subscribe by clicking on the button below.

Contrary to stereotype, lawyers can be creative—and not just in crafting legal arguments. For example, take Jeremy Gilman—a litigator for almost 40 years and for even longer than that, a musician (guitar, bass, drums, keyboards, all self-taught). He just released his third album, “Past Is Present,” a collection of 13 cover songs from the late 1960s to the early aughts. Lawyers might be especially interested in his second album, “2000 Nonbillable Hours”—eight original compositions about law and the legal profession, with catchy titles like “I Serve Subpoenas in the Night” and “I Passed the Bar (Then I Turned Around and Went In).”

Or consider Jason Tashea. He’s most well-known as a journalist and academic focused on law and technology, and now he’s exploring these interests through a new writing and podcasting project called 40 Futures, a speculative-fiction series about the criminal justice system. Here’s Jason’s introduction to the series, and here are the two latest episodes, which give you a good feel for it. It’s a cool concept that puts me in mind of Black Mirror.

Or check out the ten titles I’ve selected for the latest edition of Lat’s Legal Library (“LLL”), a feature that appears in these pages every other month, in which I spotlight noteworthy new books about or related to the law. This isn’t a top feature in terms of generating traffic or subscriptions for Original Jurisdiction—unlike, say, anything related to Yale Law School—but I do it anyway, as a service to both writers and readers. As an author myself, I know how much work goes into writing a book—and how gratifying it can be when people read and engage with your work.¹

Now, without further ado, here are the ten titles for the March 2022 installment of LLL:

• One Damn Thing After Another: Memoirs of an Attorney General, by William P. Barr. It’s not often that a U.S. attorney general writes a memoir, to say nothing of one that criticizes his former boss—which might explain why Bill Barr’s book, full of candid comments about former president Donald Trump, has soared to the #1 spot on the New York Times bestseller list.

• Allow Me to Retort: A Black Guy’s Guide to the Constitution, by Elie Mystal. On the opposite side of the political spectrum, and also a Times bestseller (as high as #2), is the first book by my former Above the Law colleague Elie Mystal, now the legal-affairs writer at The Nation and a fixture on MSNBC. The book’s argument, in a nutshell, is that “Republicans are wrong about the law almost all of the time.” But any possible tendentiousness is leavened by wit; as one Original Jurisdiction reader wrote to me, “When you do your next list of books, I hope you’ll include Allow Me to Retort. Humor is a great weapon, especially from Elie’s pen.”

• The Credentialed Court: Inside the Cloistered, Elite World of American Justice, by Benjamin H. Barton. Elie Mystal is highly critical of the current Supreme Court—as is Benjamin Barton, a longtime law professor at the University of Tennessee College of Law, but for very different reasons. After analyzing the biographies of every member of SCOTUS from John Jay to Amy Coney Barrett, Professor Barton concludes that today’s Court, while abounding in spectacular CVs, sorely lacks the diversity of experience and background seen in justices from decades past. Reviewing The Credentialed Court for Law & Liberty, Professor Glenn Reynolds calls it “quite interesting, well worth reading for anyone interested in the Supreme Court, its history, and America’s.”

• Salmon P. Chase: Lincoln's Vital Rival, by Walter Stahr. Does any member of the current Court have as interesting a biographical background as Salmon Chase, the sixth Chief Justice of the United States? Before joining the Court, Chase was governor of Ohio, U.S. senator from Ohio, Abraham Lincoln’s rival for the 1860 Republican presidential nomination, and secretary of the treasury in the Lincoln Administration. Chase was also, as Walter Stahr explores in this new biography, a leading opponent of slavery and proponent of civil rights for Black Americans—more than a decade before Lincoln first spoke out against slavery. Reviewing the book in the Wall Street Journal, Peter Cozzens praises it as “an eloquently written, impeccably researched, and intensely moving biography.”

• Cheap Speech: How Disinformation Poisons Our Politics―and How to Cure It, by Richard L. Hasen. Speaking of politics, Professor Rick Hasen—a longtime law professor at UC Irvine (now on his way to UCLA), and one of the nation’s preeminent experts on election law—has a new book out. According to First Amendment guru Floyd Abrams, Cheap Speech “offers a fresh, persuasive, and deeply disturbing overview of the baleful and dangerous impact on the nation of widely disseminated false speech on social media.” In light of the continuing investigation into January 6 and the upcoming midterm elections, it would be hard to find a more timely topic.

• Free Speech: A History from Socrates to Social Media, by Jacob Mchangama. Speaking of timely topics, free speech is all over the news right now—and if we want to understand the present and future of free speech, we need to understand its past. In this new book, Jacob Mchangama—founder and executive director of the Danish think tank Justitia, as well as the host of the podcast Clear and Present Danger—explores the rich legal, political, and cultural history of free expression. The late P.J. O’Rourke praised Mchangama’s work as “the best history of free speech ever written,” observing that Mchangama “never loses sight of the trouble freedom causes, but always keeps in mind that lack of freedom creates horrors.”

• Breached!: Why Data Security Law Fails and How to Improve it, by Daniel J. Solove and Woodrow Hartzog. Issues of privacy and data security also dominate the headlines—and you’ll often see Professors Dan Solove and Woodrow Hartzog quoted in news articles, given their stature as leading scholars in the field. They have now teamed up to write Breached!, which Professor William McGeveran commends as “a clear, accessible, persuasive case that data security today needs a systematic approach, far beyond just mopping up breaches.”

• Pleading Out: How Plea Bargaining Creates a Permanent Criminal Class, by Dan Canon. Plea bargaining is on trial right now in the court of public opinion—and the case against it seems strong. The latest indictment is Pleading Out, in which law professor and civil rights lawyer Dan Canon argues that plea bargaining gives rise to a massive underclass of people who are restricted from civic participation in a whole host of ways. Per Publishers Weekly, this “well-reasoned polemic” is “full of persuasive evidence of how the courts are used by those in power to enforce the status quo,” as well as “a cogent call for change.”

• Presumed Guilty: A Novel, by Alexandra Shapiro. The injustices of the criminal justice system are also front and center in Presumed Guilty, the debut novel of Alexandra Shapiro, a former law clerk to Justice Ruth Bader Ginsburg and co-founder of one of the nation’s top litigation boutiques, Shapiro Arato Bach. According to Peter Hutt II of Covington & Burling, “Written by a top-tier criminal defense attorney, Presumed Guilty gives an insiders’ view of the white-collar criminal system. With deft strokes and memorable characters, Shapiro paints a compelling—and heartrending—picture of what it is like to be charged with a crime, and what really happens in a razor-close trial. This is a legal procedural to savor.”

• The Other Dr. Gilmer: Two Men, A Murder, and an Unlikely Fight for Justice, by Benjamin Gilmer. After completing his medical residency, Dr. Benjamin Gilmer joined a rural North Carolina clinic, where he learned that his predecessor shared his last name. Dr. Vince Gilmer was a beloved and respected figure in the town, until he murdered his ailing father—then returned to the clinic for a normal week of work. Benjamin decides to investigate the circumstances surrounding Vince’s conviction, including the possibility that an undiagnosed medical condition played a role in Vince’s actions. What follows, writes Becky Meloan of the Washington Post, is “a years-long crusade through the legal and prison systems, where medical compassion can be hard to come by.”

The books I’ve just mentioned are all brand-new, which is one requirement for Lat’s Legal Library. But this month I also have two bonus books, published a little while ago but now out in paperback:

• Shortlisted: Women in the Shadows of the Supreme Court, by Hannah Brenner Johnson and Renee Knake Jefferson. With Judge Ketanji Brown Jackson on the verge of making history as the first Black woman to serve on the U.S. Supreme Court, now is an opportune time to delve into the fascinating history of nine remarkable women who were considered―but not selected―for SCOTUS. The paperback includes a new foreword by NYU law professor Melissa Murray, a high-court shortlister herself, as well as an update from the authors discussing events after the book’s original publication in May 2020.

• The Conservative Case for Class Actions, by Brian Fitzpatrick. Professor Fitzpatrick, holder of the Milton R. Underwood Chair in Free Enterprise at Vanderbilt Law School, received the 2022 Civil Justice Scholarship Award from the Pound Institute for this book—which Judge Kenneth Lee of the Ninth Circuit lauds as a “thought-provoking book” that offers “a clever, contrarian, and counterintuitive take on class actions that should open the eyes of both conservatives and liberals.”

Congratulations to the authors of these twelve terrific titles. Please support them, their publishers, and the printed word by ordering one or more of these books and diving in. With college and law school graduations just around the corner, some of these books could also make great gifts for the pre-law or law student in your life.²

And please send me your nominations for the next installment of Lat’s Legal Library, which will appear near the end of May. Your nomination should be a new book, i.e., a book published since the last installment of LLL, but also a book already available for ordering, i.e., not a forthcoming book to be pre-ordered. Thanks!

Disclosure: All links to books in this post are Amazon affiliate links, which means that if you buy a book after clicking on a link, Jeff Bezos shares his billions with me.

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1. On that subject, thanks to April Xiaoyi Xu for this wonderfully thoughtful essay, published on her Third-Culture Lawyer Substack, in which she writes about the common themes and elements in my novel, Supreme Ambitions, and Helen Wan’s excellent novel, The Partner Track (which I reviewed for the Wall Street Journal). Both books feature young, ambitious, Asian-American female lawyers navigating high-powered environments in the legal profession—the world of federal appellate clerkships in Supreme Ambitions, and the world of Biglaw in The Partner Track—so reading them together makes a lot of sense. My thanks to April for her insightful analysis (warning: spoiler alerts for both books).

2. On the subject of literary gifts, you can even create thematic “book bundles” by combining some of these books with related works I’ve mentioned in past editions of Lat’s Legal Library. For example, you could pair One Damn Thing After Another with Jamie Raskin’s Unthinkable (the Trump years), Breached! with Neil Richards’s Why Privacy Matters (privacy law), Pleading Out with Carissa Byrne Hessick’s Punishment Without Trial (plea bargaining), Salmon P. Chase with Noah Feldman’s The Broken Constitution (the Lincoln era), and Shortlisted with Susan Oki Mollway’s The First Fifteen and Ruth Bader Ginsburg and Amanda Tyler’s Justice, Justice, Thou Shalt Pursue (pathmarking women judges). You’re welcome!