 Book Reviews || Book Notices || Publishers || Archive ————————————————————————————— JURIST: Books-on-Law is edited by Ronald K.L. Collins and David Skover of the Seattle University School of Law Editorial Consultants:  
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 This Month’s Issue This month we are happy to bring you a lively online Question-and-Answer exchange. It concerns Dissent, Injustice, and the Meanings of America (1999), a new book by Steven Shiffrin (Cornell Law School & a Books-on-Law Board member). The contributors include: Judge Danny Boggs (6th Circuit), Mr. Paul McMasters (Freedom Forum), Professor Nadine Strossen (New York Law & also a Books-on-Law Board member), Professor Lawrence B. Solum (Loyola, Los Angeles Law), and the Editors. Remember: We welcome your words. So talk back to us. Also, be sure to check out our archives file to see some of the 100 reviews we have published thus far. As for new books, check out the many listed in Book Notices. ———————————————————————Are Levy’s Critics Taking the Fifth? If you were wondering about Leonard W. Levy (the noted historian who now lives in Ashland, Oregon) -- he’s alive, productive and, yes, as uninhibited as ever. This year alone he has published Origins of the Bill of Rights (Yale University Press) and The Palladium of Justice: Origins of Trial by Jury (Ivan R. Dee). And if you never secured a copy of his Pulitzer-Prize winning Origins of the Fifth Amendment: The Right Against Self Incrimination (Oxford, 1968), don’t worry. The book is back in print (unchanged) and has just been released by Ivan R. Dee Publishing of Chicago. Origins has a new preface, which in part (and in classic Levy fighting form) reads as follows: I am pleased and honored that the book, a generation after publication, is still read and provokes criticism. Five of the six contributors to a 1977 University of Chicago Press book on the Fifth Amendment made my book the target of their essays, and each had previously published a law review article lambasting it. I enjoyed responding. I have rarely had so much pleasure in destroying my critics, all of whom were flat wrong in their criticisms. I published an article in which I exposed their errors and mischaracterizations, and I concluded my forty-page article in the Cardozo Law Review [vol., 19, p. 821 (1997)] with the remark that if I were rewriting the book I would not need to change it. I sent a copy of the article to each of my critics, inviting their replies, privately or in print. None responded. The Privilege Against Self-Incrimination: Its Origins & Developments (University of Chicago Press, 1997) is title of the book that Professor Levy left unmentioned. The names of the unmentioned authors are: R.H. Helmholz, Charles M. Gray, John H. Langbein, Eben Moglen, Henry E. Smith, and Albert W. Alschuler (who did not "target" Levy’s Origins). Books-on-Law extended e-mail invitations to Professors Helmholz, Langbein, Moglen, and Smith to reply to Professor Levy. Unfortunately, we had no e-mail address for Professor Gray. Professor Helmholz responded to us with the following: It is difficult to know exactly what to say in reply. Mr. Levy seems not to have grasped the main point of our book. The point was that, although the privilege was widely admitted in theory, it was all but impossible to exercise in fact because of the procedural system adopted in the common law. In ordinary situations, asserting the privilege meant forfeiting any right to present one's own case. Levy appears not to have understood the argument. We hope only that his extravagant self-congratulation on this occasion may arouse the interest of your readers in our book.——————————————————————— Feminist Legal Scholars & the Either/Or Trap Judith A. Baer is feminist legal scholar. She is also a political science professor (Texas A&M University) who has written books such as The Chains of Protection (1978), Equality Under the Constitution (1983), and Women in American Law (2nd ed., 1996). Now comes her latest work, a book ten years in the making: Our Lives Before the Law (Princeton University Press, 1999). In it is a framework for a new feminist jurisprudence -- one that links creative feminism with inventive liberalism. As Baer told Books-on-Law: Our Lives Before the Law "is a book for the educated and curious reader." For Judith Baer too many feminist legal scholars (e.g., Carol Gilligan and Robin West) have marginalized feminist thought by focusing so exclusively on women and their "sameness" or "differences." But for Baer, as she told us, "neither feminist scholarship nor activism can let itself be forced to chose between the sameness model (e.g., Herma Hill Kay) and the difference model (e.g., Robin West)." And she added: "It is possible to have law and theory treat men and women different when they are different and the same when they are the same." At a time when some feminist legal scholars are abandoning the ship of liberalism, Professor Baer asks them to pause, to reconsider liberalism not simply as a rights-based ideal but also as a responsibility-based one. Baer offers up a "feminist post-liberalism," a jurisprudence that values both individual freedom and personal responsibility notwithstanding the differences between men and women, and their respective needs. As she told us: "Responsibility is presumed in liberalism, though most liberal feminist theorists have not seen this." Professor Baer constructs a new feminist interpretation of three central components of conventional theory -- equality, rights, and responsibility -- through an analysis of such pressing legal issues as constitutional interpretation, reproductive choice, and fetal protection. Our Lives Before the Law is slated to be reviewed in the December issue of Books-on-Law. ———————————————————————Conserving Mr. Lincoln’s Constitution George Anastaplo was once feared to be a radical Communist. So much so that the Illinois Bar refused to admit him when he refused to disclose his ideological stripes. In 1961, the U.S. Supreme Court upheld (5-4) the denial of his admission to the bar. The great irony, for anyone who knows Anastaplo or his work, is that often he is (or appears to be) a very conservative thinker. Take his latest book, for example: Abraham Lincoln: A Constitutional Biography (Rowman & Littlefield, 1999). It is another in a long line of works in which the good American law professor seeks to conserve what many would view as conservative (definitely old-fashioned) constitutionalism. For Anastaplo, a student of the distinguished yet nonetheless controversial political philosopher Leo Strauss, the study of American constitutionalism is very much tied up with the study of great texts. Thus, his interest in Abraham Lincoln and his First and Second Inaugural Addresses, the Emancipation Proclamation, and the Gettysburg Address, among other speeches and debates. Of course, to properly understand such constitutional texts one must understand the great texts upon which they were built -- thus his lengthy discussion of the Declaration of Independence. It is the sort of "constitutional" discipline that is rarely found in contemporary American law schools. Abraham Lincoln: A Constitutional Biography is not so much a biography, at least not in the conventional sense, as it is a collection of 17 essays (previously prepared or published between 1961 and 1998). The book invites its reader to reflect upon any one or all of the essays. The collection of subjects ranges from discussions of Lord Mansfield’s opinion in Somerset v. Stewart (1772) to the Northwest Ordinance to Alexis de Tocqueville to the "House Divided" speech to the poetry of Abraham Lincoln. The book, Professor Anastaplo told us, "is not a biography of Lincoln except to the extent that his career is reflected in the documents that shaped it and then in the documents that he himself issued and which proved to be decisive in his career." Is Anastaplo’s Abraham Lincoln ever critical of its presidential subject? "It is critical," he replied, "in one respect, namely, that it does not yield to the canonization of Lincoln." Written with exoteric and esoteric appeal, the essays address different readers in different ways. In that regard, the author notes in the Prologue that the book could just as well have been subtitled A Dialogue on Prudence. Some of Professor Anastaplo’s other works (and there are many) include The Constitutionalist (1971), The Constitution of 1787: A Commentary (1989), The American Moralist: On Law, Ethics, and Government (1992), and The Amendments to the Constitution: A Commentary (1995). See also Law and Philosophy: The Practice of Theory: Essays in Honor of George Anastaplo (1992), edited by John A. Murley, Robert Stone, and William Braithwaite. As for a second Lincoln book, Professor Anastaplo informs us that he is preparing another work on Lincoln, "but not one on his great works but rather on how he confronted the various events in his presidency." Other books on Lincoln’s constitutionalism include the classic study by James G. Randall, Constitutional Problems under Lincoln (1951) and the more recent study by Herman Belz, Abraham Lincoln, Constitutionalism, and Equal Rights in the Civil War Era (1998). ———————————————————————Forthcoming The December 1999 issue of Books-on-Law is scheduled to contain the following:
Ronald K.L. Collins & David M. Skover, Editors, Books-on-Law
————————————————————————————— Board of Editorial Consultants: Raj Bhala, George Washington University Law School; Miriam Galston, George Washington University Law School; Kermit Hall, Ohio State University College of Law; Yale Kamisar, University of Michigan Law School; Lisa G. Lerman, Catholic University of America School of Law; David M. O'Brien, University of Virginia Department of Government and Foreign Affairs; Judith Resnik, Yale Law School; Edwin L. Rubin, University of Pennsylvania Law School; Steven H. Shriffrin, Cornell Law School; Nadine Strossen, New York Law School; David B. Wilkins, Harvard Law School.
Administrative Assistant for Books-on-Law: Ms. Nancy Ammons © Ronald K.L. Collins and David Skover, 1999.
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BOOKS-ON-LAW/From
the Editors - November 1999; v.2, no.9