LARB Digital Edition: The Law Issue

By Jim Lafferty, Frank Gruber, Barry A. Sanders and Jonathan Shapiro

A collection of essays on the topic of the law and legal affairs, selected in order to give readers samples of the ways in which the subject of law relates to the study of ourselves and our times. Those included in this publication are just a sample of the books reviewed over the last year and a half reviews that cover a variety of topics, some very current, some historical and some dealing with debates spanning centuries.

A review of Judge Wilkinson’s Cosmic Constitutional Theory surveys the leading theories of the Constitution and how to interpret it. Two equally brilliant and contrasting views on the meaning of our nation’s founding document are provided through interviews with Justice Antonin Scalia and Yale Law Professor Akhil Reed Amar. Between these three pieces, the reader will find a sharp debate as to whether a literal reading or a living interpretation of the document should govern our age.

Also included is a thoughtful treatment of the macroeconomic disconnect between the numbers of new lawyers churned out by our educational system and the market for these new entrants. To see how far we’ve come since the first women sought admission to the bar, read a review of Jill Norgren’s Rebels at the Bar: The Fascinating, Forgotten Stories of America’s First Women Lawyers.

The articles featured in this publication, by the breadth of the issues they survey, show rather that the law is a rich bed of moral inquiry, an all too true reflection of our times and ourselves.

• Language: English
• Publisher: Los Angeles Review of Books
• Release date: Nov 1, 2013
• ISBN: 9781940660035

Book preview

Introduction

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good e deal more to do than the syllogism in determining the rules by which men should be governed.

Oliver Wendel Holmes, Jr. from The Common Law

…………………..

Holmes famous observation that experience is the life of the law draws us to another insight, that the law embraces the whole of the experience of humanity. The social currents of every age flow into the broad river that is the law. In Holmes’ words -- the felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, …, even prejudices … -- all shape and define the law of a nation. In short, law touches just about everything that has to do with being human. In a way, law is the end point of all the humanities, for it is in the law that we, as a society, try to give expression to our aspirations for how the world should be. Uneasily, jurists should admit that the law is a normative business, setting forth, for good or for ill, not just what we are but also what we want to be as a civilization.

So in editing the books for inclusion in the Law [or Legal Affairs?] Section of the Los Angeles Review of Books we have attempted to give the readers samples of the ways in which the subject of law relates to the study of ourselves and our times. Those included in this publication are just a sample of the books reviewed over the last year and a half – reviews that cover a variety of topics, some very current, some historical and some dealing with debates spanning centuries.

First and foremost, in American law, is our Constitution, its meaning and application today. For this publication, three articles relating to constitutional issues have been selected. A review by this editor of Judge Wilkinson’s Cosmic Constitutional Theory surveyed the leading theories of the Constitution and how to interpret it (entitled Supreme Hubris). We were privileged to provide two equally brilliant and contrasting views on the meaning of our nation’s founding document through interviews with Justice Antonin Scalia and Yale Law Professor Akhil Reed Amar. Between these three pieces, the reader will find a sharp debate as to whether a literal reading or a living interpretation of the document should govern our age.

The debate over the American constitution dates back to the document’s origin. By contrast, current as today’s headlines is the controversy over marriage equality. A review by this editor (published on the eve of the Supreme Court’s historic decision overturning California’s Proposition 8 and the Federal Defense of Marriage Act) discusses two books on the issue of gay marriage, Dale Carpenter’s Flagrant Conduct and Michael J. Klarman’s From Closet to Altar. Equally topical is the issue of rape in the US military, which we covered through the informed and moving testimony of Ben Klay, an officer in the Marine Corps whose wife brought a civil action against the Marines for a rape she claimed to suffer while on duty. Six years into office, President Obama has yet to fulfil his campaign promise to close down America’s gulag, Guantanamo. We featured a review of Jess Bravin’s The Terror Courts, a survey of our post 9/11 justice lite judicial system and an interview with Jess Bravin, to cover this pressing issue.

Ground zero for legal controversy will always be the Supreme Court, the closest thing to an assemblage of philosopher kings since Plato’s Republic. Two books featured in the Review give us insight into the workings of (in the words of Alexander Hamilton) this least dangerous branch of government – Marcia Coyle’s insightful view of The Roberts Court and Supreme Court Justice O’Connor’s autobiographical Out of Order: Stories from the History of the Supreme Court. For a view into the inner workings of the judiciary, and how a determined political movement could fundamentally change its character, we reviewed The Federalist Society: How Conservatives Took the Law Back from Liberals by Danielle McLaughlin and Michael Avery.

And then there is the profession of law itself, the butt of many a joke (Shakespeare’s line, ''the first thing we do, let's kill all the lawyers" is among the first of endless damning jibes) -- but serious business nonetheless. For a thoughtful treatment of the macroeconomic disconnect between the numbers of new lawyers churned out by our educational system and the market for these new entrants, we reviewed Steven Harper’s The Lawyer Bubble. The prototypical larger-than-life entertainment lawyer, consigliere to the stars, Greg Bautzer, was the topic of James Gladstone’s The Man Who Seduced Hollywood. To see how far we’ve come since the first women sought admission to the bar, we offered a review of Jill Norgren’s Rebels at the Bar: The Fascinating, Forgotten Stories of America’s First Women Lawyers.

We began with Justice Homes and return to him – he also famously said it might be a gain if every word of moral significance could be banished from the law altogether. Respectfully, we file a dissent to the great jurist’s suggestion. The reviews featured in this publication, by the breadth of the issues they survey, show rather that the law is a rich bed of moral inquiry, an all too true reflection of our times and ourselves.

Don Franzen

Legal Affairs Editor

Los Angeles Review of Books

Supreme Hubris: Theories of Judicial Activism

By Don Franzen

YESTERDAY, on June 28, 2012, the Supreme Court of the United States in National Federation of Independent Business v. Sebelius upheld, by a margin of 5 votes to 4, most of the provisions of Affordable Health Care Act. At stake was nothing less than the single most important legislative achievement of the Obama Administration and one of the most significant efforts at addressing a national economic issue since the 1960s, when a Democratic majority lead by President Lyndon Johnson passed both the Civil Rights and Medicare Acts. The surprise swing vote came from the court’s Chief Justice, John Roberts, a Bush appointee meant to be a secure vote for the right — in nominating Roberts, Bush was trying to appoint a chief justice who would not go rogue, as had his father’s appointee, David Souter, whose opinions over time leaned ever more to the left.

Commentators are already likening Roberts’s vote to the famous switch in time that saved nine in 1937 when Associate Justice Owen Roberts underwent a change of heart resulting in a 5 to 4 vote upholding a key piece of New Deal Legislation. In the years leading up to this switch, the Supreme Court had negated several major Federal efforts aimed at addressing the crisis of the Great Depression. Decrying the tyranny of the Court’s nine old men, President Roosevelt called for Congress to expand the court’s numbers from nine to as many as fifteen — to open up new appointments for him to pack the Court with appointees favorable to the New Deal agenda. Recognizing that the very independence of the judiciary was at stake, the court then began a reversal of course that eventually lead to it routinely upholding economic regulations that it formerly would have overturned, either on the grounds of interference with due process or because they were deemed beyond the reach of the federal government.

In the early 1940s the court also settled — or so we thought — the reach of the federal government’s power under the commerce clause, which authorizes Congress to regulate commerce among the several states. Those cases cumulatively concluded that just about everything is interstate commerce. Even the activity of a lone farmer who produced wheat for his private consumption was found, in 1942, to be subject to Congressional regulation. Understandable, then, that the Obama administration, as recently reported in the New York Times, foresaw little risk that a successful challenge could be mounted against the power of Congress to enact the Affordable Health Care Act. The administration greatly underestimated the magnitude of the tectonic shift in the court’s jurisprudence in recent decades, the result of a relentless series of appointments by Republican presidents of judges who passed right wing litmus tests. The Roberts opinion upholding the Affordable Care Act actually concluded that it was beyond Congress’s power under the commerce clause because it mandated action rather than regulating pre-existing conduct. Instead, to uphold the law, Robert embraced what most analysts thought to be the Administration’s throw away argument, that the Act was a valid exercise of Congress’s power to tax. The rationale suggests that the decision may be a Pyrrhic victory for liberals. Embedded in Roberts’ opinion is a major limitation on the Federal government’s power to regulate commerce. The ripple effect on existing and future legislation is not clear, but undoubtedly it will be brandished by future litigants in attempts to overturn Federal laws. The four dissenting justices, lead by Antonin Scalia, fulminated against the majority’s reliance on the taxing power to uphold the law as a metaphysical sleight of hand, since the majority, in order to allow the case to be decided now, had held initially found that the penalty for not getting insurance was not a tax — if it were, the case would not be ripe for decision until the first tax was in fact paid. The phrase turncoat nowhere appears in the dissent, but between the lines one can sense the frustration of the four member conservative bloc in losing Roberts’s key vote.

Theories are called upon to justify results, and just as, according to Keynes, the most practical man of affairs is usually in the thrall of the ideas of some long-dead economist, jurists too can be the enthralled acolytes of a favorite constitutional theory. The Affordable Health Care case was very much a war of constitutional theories, left leaning justices opting for an expansionist view of Congressional powers and right leaning justices arguing for limited federal power. This battle of ideas over the meaning of the constitution has its roots in the scripture itself. Written over two hundred years ago, consisting of less than 5,000 lofty but sometimes ambiguous words, and concise to the detriment of being complete, the American Constitution is a fertile breeding ground for a wide range of theories — including attempts to formulate a constitutional theory of everything, or, as the title of Judge Harvey Wilkinson III’s recently published book has it, a Cosmic Constitutional Theory. Wilkinson, a sitting federal appellate judge appointed by Ronald Reagan, has little taste for such overreaching, and his message is a pox on all their houses. Taking each major constitutional theory chapter by chapter, he explicates and critiques them, and concludes each falls short when it comes to his sine qua non of any theory of the constitution — judicial restraint. To his credit, despite his conservative credentials, Wilkinson derides judicial activism wherever he finds it, whether on the left or the right. Democracy, he argues, is the victim when the courts embark on setting policy in the guise of constitutional adjudication. For Wilkinson, the great casualty of cosmic constitutional theory has been our inalienable right to self-governance.

His first (and easiest) target is