2021, despite the continuing pandemic, produced a considerable number of significant books dealing with law and legal history, and it is a pleasure to list and discuss them here for holiday book buyers.
Although our practice concentrates on executive employment law, and we negotiate the contracts (and termination packages) of college and university presidents, independent school heads, and senior executives in finance, industry and media, I have always believed in following the guidance of my first law boss, Louis Nizer (who was himself following the well-known advice of legendary Supreme Court Justice Felix Frankfurter), as follows:
In order to be resourceful on behalf of their clients, lawyers, as citizens in a democracy, should read widely in legal and other fields unrelated to their daily work. In that way, all of the following books relate to our work, even when they attempt a far wider legal perspective.
Moreover, no one can afford to put on blinders when it comes to those national legal issues and even constitutional controversies which are the source of heated debate in our society. Some of those issues are dealt with in this year’s harvest of books on legal topics. And, although I am recommending books which I found informative and intellectually provocative, my recommendation does not mean that I necessarily agree with each author’s observations or political positions. What I relish is the ability of any book to make me think, even if I end up questioning one or more of the book’s premises.
The three premises of Senator (and ex-presidential candidate) Amy Klobuchar’s Antitrust: Taking on Monopoly Power from the Gilded Age to the Digital Age (Knopf) are straightforward: first, that the antitrust laws enacted at the turn of the twentieth century — the age of the robber barons and Teddy Roosevelt the “trust buster” — were crucial tools to prevent bare-knuckled capitalism from riding roughshod over the common interest, particularly the interests of consumers and small businesses in maintaining competitive markets; second, that these same legal tools became virtual dead letters in the last half century as a result of the Ronald Reagan “return to less government” movement in the 1980’s; and, third, that a renewed determination to enforce these same antitrust laws is needed now more than ever in the age of Google, Facebook and industry mega-mergers. Along the way, Senator Klobuchar serves up a great deal of fascinating legal and economic history in an engaging presentation. You do not have to agree with every one of her points, legally, historically or economically, to be both informed and challenged on these vital issues (and I personally hope that she has not abandoned her presidential aspirations).
Linda Greenhouse teaches at Yale Law School, but formerly was the chief Supreme Court correspondent for The New York Times. Her books on the evolving nature of the high court’s responses to our country’s most fervent controversies, from abortion to the death penalty, began some years ago with Becoming Justice Blackmun (a favorite book of mine), continued in 2016 with The Burger Court and the Rise of the Judicial Right (Simon & Schuster paperback, co-authored with Michael J. Graetz) and has now reached a starkly contemporary view of the current court in Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court (Random House).
Being of a more sanguine temperament than Ms. Greenhouse, I am less certain than she is that the current Supreme Court is headed toward the absolute abyss of liberal values. I still believe that at least some judges of the conservative predisposition are capable of surprising us, as Justice Gorsuch did in the Oklahoma Native American land case. Nonetheless, Linda Greenhouse is a graceful writer and her analysis of actual court decisions, particularly in The Burger Court book, are reliably first-rate. As the country anxiously watches the outcome of several major issues on the Supreme Court’s current docket, you will — regardless of your political leanings — profit from her attempt to lay out the human and jurisprudential issues as she sees them.
Baby boomers who came to maturity during the years when Earl Warren was Chief Justice of the Supreme Court (roughly 1955-1975) may have a skewed perspective on history if they see the Supreme Court as an essentially progressive institution. For most of its existence, with certain discrete exceptions, the court was even more profoundly conservative than its current composition of judges would suggest. This is what makes the story which Peter S. Canellos tells in The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero (Simon & Schuster) even more extraordinary.
Although born in a family of Kentucky slaveholders, Harlan fought for the North in the Civil War and then became a lone voice of stunning courage in defense of civil rights during the long and tragic aftermath of a failed Reconstruction, authoring the famous dissent in the invidious “separate but equal” Plessy v. Ferguson case. A champion of economic as well as political rights for all citizens, regardless of color or status, Harlan was a man of unusual conscience and uncommon forward thinking. Canellos tells Harlan’s personal story, and how the fact that he had and acknowledged a Black half-brother influenced his pronouncement that “our Constitution is color-blind”. A wonderful and important book.
Akhil Reed Amar, Sterling Professor of Law at Yale, is not only a distinguished legal scholar, he is an academic with a clear and compelling prose style. Professor Amar has authored several books on the deep history of the United States Constitution. His foundational book, America’s Constitution: A Biography (2005), is, though hefty, available in a portable trade paperback edition from Random House, and is one of the books I am giving for Christmas. This year Professor Amar followed up these earlier studies with The Words That Made Us: America’s Constitutional Conversation, 1760-1840 (Basic Books), a fascinating tour of how our foundational charter was first created and then implemented through a series of often surprising human interactions at various levels of a colonial society aspiring to the status of an independent nation. I predict you will be entertained as well as enlightened by this big book, well worth the effort.
As many of our readers are aware, one of the main concentrations of our executive employment law practice involves representing senior academics in their contract dealings, not just college and university presidents and deans, but also the heads of independent secondary schools. As a result, Lisa and I need to stay current with the major concerns and controversies which inform academic hiring and firing.
In that connection, I recommend Hopes and Fears: Working with Today’s Independent School Parents, published by — and available from — the National Association of Independent Schools, and co-authored by Robert Evans and his long-time speaking partner, my old pal, Michael Thompson. This is a relative short volume, but entirely readable and packed with information to help administrators, faculty and parents of such secondary schools navigate what has become an increasingly fraught and often downright contentious landscape. It makes a good, if unanticipated, companion to the Amar book, since it seems that some of the same core controversies from the early years of our democracy are now playing themselves out in education.
And, finally — now don’t laugh — I cannot end this list without a healthy recommendation of a fictional classic which, while not portraying the legal process in a very positive light, remains totally gripping to read 200 years after it was written. It also fits the definition of the cliche “page turner.”
If you read The Count of Monte Cristo by Alexandre Dumas père when you were a child or a teenager, you almost certainly did not read the unabridged and unexpurgated version of the book translated from the French by Robin Buss and published by Penguin Classics in 1998. Serialized in a Parisian newspaper over the course of two years in the 1840’s, Dumas’ escape and revenge thriller is no less engrossing, even shocking, than it was at the time. Its elaborate story, which tells of the gallant young sailor Edmond Dantes, wrongfully imprisoned for more than a decade in a supposedly impregnable offshore fortress where his anonymous rivals and tormenters have consigned him to a living death and thrown away the key, and how he escapes and wreaks an elaborate, fiendish and highly satisfying revenge on the four men who put him in prison and have long believed him to be dead, has been the subject of countless stage and film adaptations, all of which had to be and were massively simplified. But it is Dumas’ own stylish, even feverish, manner of telling the story which literally kept me up at night for several weeks during the past year. His contemporary readers, unjaded by movies and television, lined up at the news kiosks in Paris to get the latest installment, and I can see why. The 1,250 pages of this massive Penguin paperback fled by like the wind, and provided me with one of my most purely enjoyable reading experiences of 2021. Don’t, as they say, miss it!
Lisa and Terri join me in thanking all of our friends and clients for their consideration in the year now passing, and we wish you a wonderful holiday season and a happy and healthy 2022!