Lat's Legal Library (11.2021): Laboratories Of... Something

New books by Linda Greenhouse, Noah Feldman, Judge Jeffrey Sutton... and some guy named John Grisham.

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.

In light of the supply-chain problems currently plaguing the American economy, you probably should have started your holiday shopping already. If you’re at a loss about what to purchase for the lawyer, law student, or law-curious person in your life, fear not; I’ve got you covered.¹

Here are the ten titles I’ve selected for inclusion in the latest installment of Lat’s Legal Library, a recurring feature in which I spotlight noteworthy new books about or related to the law. If you’re looking for holiday presents—or maybe something to read yourself during the upcoming downtime—look no further.

• Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court, by Linda Greenhouse. For more than 40 years, Greenhouse has been one of the nation’s most insightful writers about SCOTUS. In her latest book, she takes a deep dive into October Term 2020, the first Term of the post-RBG, hello-ACB Court. Professor Laurence Tribe praises Justice on the Brink as “the best book about the Supreme Court, its inner dynamics, and its place in the nation’s political and social life at least since Alexander Bickel’s classic, The Least Dangerous Branch (1962).” Reviewing the book for the Times, Tribe’s colleague at Harvard Law, Noah Feldman, declares that “no one can recount judicial decisions as accessibly and intelligently as Greenhouse.”

• The Broken Constitution: Lincoln, Slavery, and the Refounding of America, by Noah Feldman. Speaking of Professor Feldman, he just published a thought-provoking book with a bold thesis: President Abraham Lincoln “broke” the Constitution by violating several of its principles, deliberately and repeatedly—in order to remake the Constitution, as well as our nation. In the words of eminent presidential biographer Jon Meacham, “With insight and a talent for illumination, Noah Feldman explores our greatest president’s complicated relationship with a document he revered―and changed forever.”

• Punishment Without Trial: Why Plea Bargaining Is a Bad Deal, by Carissa Byrne Hessick. A UNC law professor and noted writer (and tweeter) about criminal law, Hessick makes the case against plea bargaining, arguing that it has taken over—and taken a toll on—our criminal justice system. Professor Rachel Barkow of NYU Law praises Punishment Without Trial as “a must-read for anyone who wants to tackle mass incarceration, by one of the country's most thoughtful scholars.”

• Laboratories of Autocracy: A Wake-Up Call from Behind the Lines, by David Pepper. Justice Louis Brandeis famously praised the states as “laboratories of democracy,” arguing that “a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country.” But as Pepper argues, state governments and legislators can also be, well, the worst. As noted political commentator Paul Begala puts it, “Pepper rightly argues that the biggest risk to democracy lies in out-of-control, out-of-touch and undemocratic statehouses that too few people pay attention to” (compared to their federal counterparts).

• Who Decides?: States as Laboratories of Constitutional Experimentation, by Jeffrey S. Sutton. Compared to his fellow Ohioan David Pepper, Chief Judge Sutton (6th Cir.) takes a far more sanguine view of state governments. In Who Decides, Sutton picks up from where he left off in his earlier (excellent) book, 51 Imperfect Solutions: States and the Making of American Constitutional Law, and explores the constitutional structure of the American states, gleaning insight into who should decide today’s critical questions of public policy. Professor Sanford Levinson praises Who Decides as “an unfailingly fair-minded examination of the realities of American federalism,” as well as a book that “helps to explain why Jeffrey Sutton may well be the most widely admired, across the ideological spectrum, of current federal judges.”²

• The Judge’s List, by John Grisham. In Judge Sutton’s view, a state-court judge is an important player in the development of American constitutional law. In John Grisham’s latest legal thriller, a state-court judge is… a cold-blooded killer. What can I say, I warned you that state-court judges are icky….

• Both Are True, by Reyna Marder Gentin. And a state judge has a starring role in Gentin’s novel, in which a personal crisis forces Judge Jackie Martin of Manhattan Family Court to subject herself to the same scrutiny she gives to the litigants who appear before her. I greatly enjoyed Gentin’s debut novel, Unreasonable Doubts, and I’m looking forward to reading her latest.

• Sexual Justice: Supporting Victims, Ensuring Due Process, and Resisting the Conservative Backlash, by Alexandra Brodsky. Reviewing the book for the New York Times, Michelle Goldberg praises Sexual Justice as “clarifying and instructive,” as well as “a practical, lawyerly work that will, I suspect, be valuable to other activists as well as to school administrators and human resources officers.” (Scott Greenfield is less of a fan, but in fairness, he’s a pretty tough customer.)

• Final Table, by Dan Schorr. A former sex-crimes prosecutor, Schorr tackles some of the same themes as Brodsky, in fictional form. Specifically, his novel looks at the evolving legal and social issue of sexual assault via “stealthing,” the nonconsensual removal of a condom during sexual intercourse (which Brodsky actually wrote a law review article about). Alan Furst, the bestselling spy-novel author, heralds Final Table as “a top-class political thriller by a professional who knows the world he writes about.”

• Law Teaching Strategies for a New Era: Beyond the Physical Classroom, edited by Tessa L. Dysart and Tracy Norton. The coronavirus pandemic has transformed so many sectors of the legal profession, for better or worse—and legal education is no exception. In this first comprehensive book on online law teaching, professors from around the country offer insight into how to take law school beyond the traditional, in-person experience.

Looking over the list, I’m struck by… the number of Yale Law School graduates: six (Greenhouse, Feldman, Hessick, Pepper, Gentin, and Brodsky). When folks ask why they should care so much (or at all) about recent controversies at Yale Law School, I point out that YLS is a training ground for future leaders—not just political leaders but also thought leaders, like the authors of these buzz-generating books.

Speaking of Yale Law, if it can keep itself out of the headlines for the next day or so, this might be my last post before Thanksgiving. If so, I wish you and your families a very happy and healthy Thanksgiving holiday.

UPDATE (11:02 a.m.): Corrected to note that Alexandra Brodsky is a YLS grad as well. Also, as I’ve mentioned in past literary roundups, the links are affiliate links (meaning that I earn a small amount should you buy a book by clicking on a link).

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Thanks for reading 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 share this post or subscribe to Original Jurisdiction using the buttons below.

1. Here’s one more idea, on top of the books featured in this post: a gift subscription to Original Jurisdiction. It’s only $50, and it doesn’t require shipping—so it’s a great last-minute present for this holiday season.

2. A bonus book beyond my usual ten, also published by Oxford University Press (but back in July, so too long ago to be an official pick for Lat’s Legal Library, which focuses on books from the past two months): Automation Anxiety: Why and How to Save Work, by Cynthia Estlund. In this age of artificial intelligence and algorithms, it would be hard to find a more timely topic than the one tackled by Estlund, an NYU law professor and leading scholar of labor and employment law.