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Lat's Legal Library (11.2022): Before And Behind The Bench
Prominent professors' pronouncements, dueling titles from Senate Judiciary members, and memoirs from a judge and an advocate.
Welcome to Original Jurisdiction, the latest legal publication by me, David Lat. You can learn more about Original Jurisdiction by reading its About page, and you can email me at firstname.lastname@example.org. This is a reader-supported publication; you can subscribe by clicking on the button below. Thanks!
Over the long weekend, Zach and Harlan and I visited the mall (because that’s what you do when you live in New Jersey). My main takeaway: “What looming recession?” The Willowbrook Mall was packed.
But for those of you who don’t share my love of the mall and want to complete your holiday shopping from the comfort of your own home, I’m here to help. Here’s the latest Lat’s Legal Library (“LLL”), my bimonthly column in which I spotlight noteworthy new books about or related to the law.1
Traditionally I feature ten titles in LLL. This time around, in the interest of helping you find Christmas, Hanukkah, or other holiday presents, I’m giving you twelve:
Worse Than Nothing: The Dangerous Fallacy of Originalism, by Erwin Chemerinsky. I’m not sure how he does it—does the man sleep?—but Erwin Chemerinsky somehow finds time to serve as dean of Berkeley Law, write for numerous publications (including a column for the ABA Journal), serve on seemingly every Supreme Court-related panel, and write books. His latest is, according to Professor Eric Segall, “a devastating, concise, and beautifully written critique of originalism,” which Professor Leah Litman commends as “accessible to a broad audience of lawyers and nonlawyers alike.”
The Fight for Privacy: Protecting Dignity, Identity, and Love in the Digital Age, by Danielle Keats Citron. Professor Danielle Citron of UVA Law is a leading scholar in the field of privacy law—as reflected in her MacArthur Foundation “genius grant,” among many other honors. She analyzes the threats technology poses to privacy in the twenty-first century in The Fight for Privacy, which Dean Chemerinsky praises as “a terrific, though terrifying, exposé,” which “hopefully will inspire needed meaningful change in the law.”
The Equality Machine: Harnessing Digital Technology for a Brighter, More Inclusive Future, by Orly Lobel. Technology can endanger equality and democracy. But on the bright side, it can be harnessed to promote these values too, as Professor Orly Lobel of the University of San Diego argues in The Equality Machine. According to Professor Frank Pasquale, Lobel “makes a compelling argument that AI can help solve some of our most important social problems, ranging from discrimination to human trafficking,” in a book that Professor Daniel Solove describes as “an exuberant and insightful account of the bright side of AI.”
By Hands Now Known: Jim Crow's Legal Executioners, by Margaret A. Burnham. In this widely acclaimed book, a finalist for the 2022 Kirkus Prize, Professor Margaret Burnham of Northeastern Law examines the horrific violence against Black Americans during the Jim Crow era and the legal apparatus that sustained it. Publishers Weekly praises Burnham’s book as “an essential reckoning with America’s history of racial violence”; Professor Patricia J. Williams declares it “searing, unforgettable, and profoundly moving.”
What's Prison For? Punishment and Rehabilitation in the Age of Mass Incarceration, by Bill Keller. The former executive editor of the New York Times and the founding editor-in-chief of the Marshall Project, Keller has written what Publishers Weekly describes as “a brisk and impassioned indictment of the U.S. prison system, “ as well as “an airtight case for reform.” In the words of Senator Cory Booker, “I hope you read this book, learn, and in some way, join the growing bipartisan efforts to bring about urgently needed change.”
The Scheme: How the Right Wing Used Dark Money to Capture the Supreme Court, by Sheldon Whitehouse with Jennifer Mueller. Senator Whitehouse (D-R.I.) has published what Kirkus Reviews dubs a “damning investigation of dark money by a senior member of the Senate Judiciary Committee.” According to Representative Ro Khanna (D-Cal.), The Scheme is “an absolute must-read.”
Justice Corrupted: How the Left Weaponized Our Legal System, by Ted Cruz. From the other side of the aisle at the Senate Judiciary Committee, Senator Cruz (R-Tex.) has written what his publisher Regnery calls a “shocking new book” about how “arrogant judges and lawless prosecutors are intimidating, silencing, and even imprisoning Americans who stand in the way of their radical agenda.” Earlier this month, Justice Corrupted hit the New York Times bestseller list.
Timothy B. Dyk: The Education of a Federal Judge, by Timothy B. Dyk. As a clerk to Chief Justice Warren, a leading First Amendment lawyer, and a Federal Circuit judge since 2000, Judge Dyk has enjoyed a fascinating legal career. And now he has penned what the Midwest Book Review lauds as “a significant contribution to our understanding of the seismic changes in U.S. law since the 1960s.”
At the Altar of the Appellate Gods: Arguing before the U.S. Supreme Court, by Lisa Sarnoff Gochman. Moving from behind the bench to before it, what was it like to argue in front of SCOTUS as an ordinary attorney, before the rise of the elite Supreme Court bar? In this memoir, Lisa Sarnoff Gochman describes her experience arguing before the Court as “a mere mortal”—specifically, “a graduate of a second-tier New York City law school” and “an interchangeable state government attorney”—in what Linda Greenhouse calls “a rare glimpse of life at the court… that even experienced court-watchers will find illuminating.”
Persuading the Supreme Court: The Significance of Briefs in Judicial Decision-Making, by Morgan L. W. Hazelton and Rachael K. Hinkle. Oral arguments before SCOTUS get lots of attention, but briefs play a more critical role in the Court’s actual decision-making. Professor Hazelton of Saint Louis University and Professor Hinkle of SUNY Buffalo analyze their importance in what Professor Ryan Black hails as “an exceptionally comprehensive accounting both of how the content of these briefs comes to be, as well as how such content subsequently shapes judicial behavior on the Supreme Court.”
The (Not Too Serious) Grammar, Punctuation, and Style Guide to Legal Writing, by Diana Simon. How can advocates write compelling briefs? For starters, they should adhere to time-honored rules of grammar, punctuation, and style, which Professor Diana Simon imparts in this informative, entertaining, and accessible guide to the fundamentals of legal writing.
Filthy Rich Lawyers: The Education of Ryan Coleman, by Brian Felgoise and David Tabatsky. Class-action litigation is more likely fodder for non-fiction, so props to Felgoise and Tabatsky for making these colorful counselors into the stars of a legal thriller. Professor Rick Parks acclaims Filthy Rich Lawyers as an “expertly crafted and witty” look into “a craven, soulless world.”
And this month, I have a bonus pick for you: Justice on the Brink: A Requiem for the Supreme Court by Linda Greenhouse, former Supreme Court correspondent for the New York Times. I featured Greenhouse’s book in last November’s installment of Lat’s Legal Library, but now it’s out in paperback with a new preface (and also a new subtitle—the original one was “The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court”).
The next installment of LLL will appear in late January. As always, I welcome nominations, but please note the timeframe: the book should ideally have a December or January publication date. I maintain this rough temporal limitation because the number of law-related books I could possibly recommend would be overwhelming otherwise. If there’s a law-related book outside this timeframe that you’d like to mention, please give it a shoutout in the comments. Thanks, and happy reading!
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, I receive a (very) small fee from Amazon.
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Lat’s Legal Library is the main vehicle for books coverage here at Original Jurisdiction; as a one-man band, I generally don’t have the bandwidth for reviews or author interviews. But I occasionally write reviews for print publications like the New York Times or Wall Street Journal, so you can always try to get your book into the hands of an editor at the Times or Journal and suggest me as a reviewer (assuming we aren’t friends; I’m not allowed to review the books of friends, and editors always ask about my ties to an author or publisher before making an assignment).