The People Against Themselves: Rethinking Popular Constitutionalism

Ackerman, Bruce. 2014 . The Civil Rights Revolution . Cambridge, MA: Belknap Press of Harvard University Press. Shugerman, Jed Handelsman. 2012 . The People's Courts: Pursuing Judicial Independence in America . Cambridge, MA: Harvard University Press. In the course of reviewing Jed Shugerman's The People's Courts: Pursuing Judicial Independence in America and Bruce Ackerman's The Civil Rights Revolution, we argue for a reassessment of the way that scholars think about popular constitutionalism. In particular, we urge scholars to resist the tendency to create a dichotomy between judicial interpretation of law and a set of nonjudicial venues in which popular constitutionalism supposedly takes place. Popular constitutionalism is temporally and contextually bound, reflected in different forms and forums at different times in US political history and always dependent on the interactions between these institutions. By implication, this suggest that judges, rather than serving as obstacles to popular understandings of law, can and have used various forms of democratic authorization to strike down legislation violating both state and federal constitutions, thus bridging judicial review and popular constitutionalism with explicit support from the citizenry.     

Rational choice attitudinalism?

This essay reviews Epstein, Landes, and Posner’s The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice. Their book systematically asks how the role of ideology varies across the tiers of the federal judicial hierarchy. A major finding is that the impact of ideology increases from the bottom to the top of the judicial hierarchy. Their typical methodology formulates an ex ante measure of judicial ideology such as the political party of the appointing president, and demonstrates that this measure correlates with later judicial behavior, often voting on case dispositions. Along the way, they investigate a multitude of topics, including some quite under‐explored ones. We argue that ELP’s theory is only weakly connected to their empirical practice, for the latter focuses on the role of ideology in judging while the former says almost nothing about that relationship. In fact, though, their empirical practice does embed a theory of law and ideology, but one quite different from that suggested by the book’s rhetoric. In the penultimate section of the essay, we explore this disconnection between ELP’s theory, practice, and interpretation. Its origin (we argue) lies in an extremely thin conceptualization of law. We conclude with the issue posed in ELP’s final chapter, “The Way Forward,” but suggest a rather different path.     

Science in the Courtroom: Vital to Best Interests and Reasonable Efforts

This essay was adapted from a speech presented by the author on February 12, 2008 at a Colloquium entitled “What's Best for Children? How Judges Use Neuroscience to Break the Cycle of Child Maltreatment.” The colloquium was sponsored by the Harvard Center on the Developing Child and held at Harvard Law School. It focuses on the wealth of knowledge that has been discovered about infant and child development and the importance of incorporating that knowledge into judicial decision making in child maltreatment cases.     

Review essay / dworkin's “full political theory of law”

Ronald Dworkin, Law's Empire Cambridge: The Belknap Press of Harvard University Press, 1986, xiii + 470 pp.     

Lying during crisis negotiations: A costly means to expedient resolution

Norman J. Finkel, Commonsense Justice: Jurors’ Notions of the Law Cambridge, MA: Harvard University Press, 1995, 390pp.     

Review essay / rights and responsibilities

Lloyd Weinreb, Oedipus at Fenway Park: What Rights There Are and Why There Are Any Cambridge, MA: Harvard University Press, 1994, viii, 221 pp.     

Continuity and Caregiving: Comments on Someday All This Will Be Yours

Hartog, Hendrik. 2012 . Someday All This Will Be Yours: A History of Inheritance and Old Age . Cambridge MA: Harvard University Press. Pp. 353. $29.95 cloth. These comments on Hendrik Hartog's Someday All This Will Be Yours: A History of Inheritance and Old Age ( 2012 ) examine the delivery of elder care in the nineteenth and early twentieth centuries and the resonance with care practices today. The book's stories of how older people arranged for their care transcend time and place, showing the age‐old difficulties of providing care for the elderly.     

Moral authority in law and criminal justice: Some reflections on Wilson's The Moral Sense

William H. Simon, The Practice of Justice: A Theory of Lawyers’ Ethics Cambridge, MA: Harvard University Press, 1998, viii + 253 pp.     

Has machine learning rendered simple rules obsolete?

European Journal of Law and Economics - Epstein (Simple rules for a complex world, Harvard University Press, Cambridge, 1995) defended the superiority of simple legal rules over complex,...     

When Someday Is Today: Carrying Forward the History of Old Age and Inheritance into the Age of Medicaid

Hartog, Hendrik. 2012 . Someday All This Will Be Yours: A History of Inheritance and Old Age . Cambridge MA: Harvard University Press. Pp. 353. $29.95 cloth. This review essay of Hendrik Hartog's ( 2012 ) Someday All This Will Be Yours undertakes a brief overview of some of the massive changes in middle‐class planning for old age and inheritance in the United States over the course of the past century, focusing on the increased role of the state as a source of funding and regulation, the rise of the elder law bar, and the resulting new tools and motives for the transfer of property in exchange for care in the age of Medicaid.     

Review essay / defending sexual autonomy

Stephen J. Schulhofer, Unwanted Sex: The Culture of Intimidation and the Failure of Law Cambridge, MA: Harvard University Press, 1998, xii + 284 pp.     

On the efficiency of the common law: an application to the recovery of rewards

Richard Posner’s influence on the field of law and economics cannot be overstated. Among his many contributions, Posner offered an early conjecture that remains fascinating and controversial to this day: the idea that common law rules are more likely than legislative codes to be concerned with efficiency. In this paper, I compare the efficiency of a common law rule of contracting to the efficiency of a civil law rule. In common law jurisdictions, claimants must have knowledge of a reward in order to recover. In civil law jurisdictions, however, no such knowledge is required. I analyze the efficiency of each rule by examining the incentives created by each rule. In a finding that agrees with Posner’s hypothesis, I argue that the common law rule is more efficient. The model has a number of applications beyond contract default laws. I use the model to discuss three legal questions previously analyzed by Richard Posner: (1) incentivizing innovation; (2) the finders-keepers rule in property law; and (3) salvage rights in maritime law.     

Race,Care Work,and the Private Law of Inheritance

Hartog, Hendrik. 2012 . Someday All This Will Be Yours: A History of Inheritance and Old Age . Cambridge MA: Harvard University Press. Pp. 353. $29.95 cloth. In Someday All This Will Be Yours, Hendrik Hartog (2012) examines how private inheritance law structured the strategies people used at the turn of the twentieth century to induce relatives to care for them as they aged. Reading it as a book about social inequality and the family reveals how wealth, gender, and race not only worked to deny claims of marginalized caregivers but also to hide the way these social hierarchies affect family life. Although race does not figure in Hartog's analysis, highlighting its latent presence illustrates the often unspoken yet fundamental role race plays in legal regulation of families.     

The Nasty Business of Aging

Hartog, Hendrik. 2012 . Someday All This Will Be Yours: A History of Inheritance and Old Age . Cambridge MA: Harvard University Press. Pp. 353. $29.95 cloth. This essay explores the contribution of Hendrik Hartog's Someday All This Will Be Yours to an understanding of old age policy and the aging experience more broadly. It starts by discussing how Hartog's study contributes to a modern understanding of the legal structure surrounding old age. It then discusses how the narrative is colored, in part, by looking at the cases from a caregiver's perspective, and explores the implications of this perspective. Finally, it suggests avenues for building on Hartog's work by using modern legal cases to explore how courts today perceive the moral and legal obligations surrounding the duty to provide care.     

Rethinking Law and State Building in Sub‐Saharan Africa

Massoud, Mark Fathi. 2013 . Law's Fragile State: Colonial, Authoritarian, and Humanitarian Legacies in Sudan . Cambridge/New York: Cambridge University Press. Pp. x–277. ISBN: 9781107440050. Paper $34.99 This essay is a response to Mark Massoud's Law's Fragile State, and through comparative inquiry argues that highly contextualized analysis of courts is critical to gaining an understanding of judicial decision making and judicial empowerment. As Massoud demonstrates, focusing on the legal complex is a particularly worthwhile endeavor in fragile states. Although we may understand the sociology of the legal profession, we do not fully understand how professional networks, career paths, and identities truly impact the institutional pathways of the courts and the legal system as a whole.     

American Adversarialism Reviewing Robert A. Kagan's Adversarial Legalism: The American Way of Law

Adversarial Legalism: The American Way of Law. By Robert A. Kagan. Cambridge, MA: Harvard University Press, 2002. 339 pp. Hardcover $49.95. ISBN: 0-674-00621-6.     

Somedays,I Have Second Thoughts

In this short response to the reviewers of Someday All This Will Be Yours, A History of Inheritance and Old Age (Cambridge, MA: Harvard University Press, 2012), the author identifies some of the paradoxes and difficulties that researching and writing the book posed and, along the way, qualifies and complicates some of the conclusions that he then drew. In particular, he questions the extent to which a work of history speaks to the concerns of the emerging field of elder law.     

All Judges Are Political—Except When They Are Not: A Response

The author explains the origins of All Judges Are Political—Except When They Are Not: Acceptable Hypocrisies and the Rule of Law (2010) as a response to a fundamental question posed by legal realism: How can the judicial process be permeated with politics and yet remain an accepted part of a legitimate legal system? The author demonstrates the ongoing importance of this question by examining debates over the place of constitutional law in the law school curriculum and by assessing public perceptions of the Supreme Court's ruling on health care reform. The author then addresses the critical appraisals presented by the symposium contributors. The critiques are taken as road maps for extending the author's arguments in new directions.     

Book review/dangerous offenders and endangered justice

Mark H. Moore, Susan R. Estrich, Daniel McGillis, and William Spelman, Dangerous Offenders: The Elusive Target of Justice Cambridge, Mass.: Harvard University Press, 1984, vi + 252 pp.