The Black Banners: The Inside Story of 9/11 and the War against al-Qaeda
By Ali H. Soufan (with Daniel Freedman)
W.W. Norton & Company, 2011, 608 pages
$26.05 hardcover, $9.43 Kindle

This fascinating book is first of all about the FBI’s investigation of al Qaeda, starting years before 9/11/01 and ranging across several countries in Asia, Africa, Europe, and the USA. It includes details of the interrogations by the author of high-level Al Qaeda leaders and associates, which yielded rich intelligence that certainly prevented further atrocities by terrorists after 9/11.

The FBI’s interrogation techniques, which it developed methodically and patiently, depended on deep knowledge of the Quran, Islamist jihad, the al Qaeda terrorist network, Arabic, and the detainees themselves. Successful interrogations also depended on treating detainees with some respect, which wasn’t easy (especially considering the author’s beloved boss was killed in the attack on the World Trade Center on 9/11).

The book is secondly a vindication of the author himself, who was maligned by the CIA in an attempt to discredit the FBI’s criticism of the CIA’s shameful mishandling of the interrogations of key al Qaeda terrorists. I’d really like to hear the CIA’s version of this issue, but we probably never will. In fact, the CIA redacted many words, sentences, and even a few whole pages of this book. (In his introduction, Soufan said the redacted information had been de-classified or already disclosed, so the CIA had no reason to fear its publication.) The book also points to deceptions and coverups by the Bush administration regarding the ineffectiveness of brutality and humiliation in the CIA’s interrogations of suspected terrorists.

The author implies that 9/11 could have been prevented if the CIA had shared certain intelligence with the FBI, as they had promised but failed to do. That’s a hypothesis that can never be proven.

Soufan’s writing style is dry as a bone. His few attempts at humor fall flat. Maps of the Middle East and eastern Africa would have helped establish geographical context. But the highlight of the book is really the interrogation scenes, which don’t require maps.

Convicting the Innocent: Where Criminal Prosecutions Go Wrong
By Brandon L. Garrett
Harvard University Press, 2011, 376 pages
Hardcover $32.48

We’ll never know how many people are convicted of crimes they did not commit (while the guilty walked free), but it’s safe to say they are many. In the past two decades, DNA testing has not only exonerated wrongfully convicted citizens, some on death row; but also shown a spotlight on widespread prosecutorial abuse and corruption, errors and manipulation by forensic experts, the unreliability of eyewitnesses testimony, and incompetence among some court-appointed criminal defense lawyers.

In January 1984, for example, Earl Washington—defended for all of 40 minutes by a lawyer who had never tried a death penalty case—was found guilty of rape and murder in Virginia and sentenced to death. After nine years on death row, DNA testing cast doubt on his conviction and saved his life. He spent another eight years in prison, however, before more sophisticated DNA technology proved his innocence and led to the conviction of the guilty man.

Brandon Garrett, a professor at the University of Virginia School of Law, analyzed the trial transcripts and evidence in 250 such cases of wrongfully convicted people to be exonerated by DNA testing, and the results are unsettling. Evidence corrupted by suggestive eyewitness procedures, coercive interrogations, unsound and unreliable forensics, shoddy investigative practices, cognitive bias, and poor lawyering illustrate the weaknesses built into our current criminal justice system.

Garrett proposes practical reforms that rely more on documented, recorded, and audited evidence, and less on idiosyncratic human memory.

False Justice: Eight Myths That Convict the Innocent
By Jim Petro and Nancy Petro
Kaplan Publishing, 2011, 304 pages
$16.49 hardcover

Myth #6: “Conviction Errors Get Corrected On Appeal.”

No, they don’t, says Jim Petro, a former attorney general of Ohio. Petro was a Republican who ran on a conservative, law-and-order platform. “Haunted by the thought of imprisoned innocent people,” he now crusades against wrongful criminal convictions, and in this book he shows how citizens can prevent this “terrifyingly common miscarriage of justice.” (Petro’s wife Nancy helped him with editing and research.)

The eight myths come at the end of False Justice. Were you inclined to believe the following statements?

• Everyone in prison claims innocence.
• Only the guilty confess.
• Wrongful convictions are caused by innocent human error.
• An eyewitness is the best kind of testimony.
• It dishonors the victim to challenge a conviction.
• If the justice system has problems, the professionals (judges, lawyers, administrators, police, etc.) will fix them.

Regarding that last myth, Petro says, “True justice requires constant vigilance on the part of every citizen.”

Actual Innocence: When Justice Goes Wrong and How to Make it Right
By Barry Scheck, Peter Neufeld, and Jim Dwyer
NAL Trade Publishing, 2003, 432 pages
$16.00 paperback

Schenck and Neufeld (co-directors of the Innocence Project ), and Dwyer (N.Y. Times reporter) place the blame for wrongful convictions squarely on lying prosecutors, slumbering defense attorneys, sloppy investigators, and biased eyewitnesses. Not to mention the great majority of citizens who feel better when someone—anyone—is locked up.

Reading List
The Innocence Project’s website has a list of 17 books, published since 1996, on the subject of wrongful conviction.

A broad interpretation of the Commerce Clause has been the constitutional basis for sweeping civil rights legislation, environmental protection regs, and Obama’s health care reform. Not everyone believes the Commerce Clause should be interpreted so broadly.

The Commerce Clause gives Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” It is one of the 16 enumerated powers in Article I, Section 8 of the Constitution.

Gibbons v. Ogden: John Marshall, Steamboats, and the Commerce Clause
By Herbert A. Johnson
University Press of Kansas, 2010, 198 pages
$17.95 paperback

The first U.S. Supreme Court decision to interpret the Commerce Clause was Gibbons v. Ogden (1824). Gibbons began as a standoff between competing steamship entrepreneurs, one of whom (Ogden, a former partner of inventor Robert Fulton) enjoyed a monopoly granted by the state of New York. The decision in 1824 struck down the monopoly grant, promoting competition and free enterprise. It brought into sharp relief the ongoing tug-of-war for power between individual states and the federal government in regulating commerce. By applying the Commerce Clause, the court set a key precedent that led to the supremacy (if not exclusivity), and the defeat of concurrency, of federal authority over interstate commerce.

The opinion was written by Chief Justice John Marshall, who presided from 1801 to 1835. Other key Marshall Court decisions served to protect the sanctity of contracts (Fletcher v. Peck) and corporate charters (Dartmouth v. Woodward); and create powerful institutions, such as a central bank, to promote economic development (McCulloch v. Maryland)—resulting in the growth of the American economy into the world’s largest.

Federalism and Liberty
Gibbons provided the foundation, along with other Marshall Court decisions, that the early union needed to develop a strong economy that could compete internationally, while consolidating power in the national government. The Court’s “aggressive nationalism”* influenced the course of American federalism by diminishing state sovereignty, causing alarm among states’-rights and anti-Federalist interests. On the other hand, strengthening the power of the national government not only cohered the union at a critical time in the young nation’s history, but also was essential to preserve liberty, especially with respect to minority and individual rights.

One thing is certain: we cannot have it both ways. That is, we can’t have both (a) global economic supremacy and (b) a decentralized national government that preserves state sovereignty and concurrent regulation of commerce.

See also:
Gibbons v. Ogden, Law, and Society in the Early Republic, by Thomas H. Cox, Ohio University Press, 2009 (264 pages, paperback).
Constitutional Law: The Commerce Clause, by Daniel T. Coenen, Foundation Press, 2003 (413 pages, paperback).

* Aggressive Nationalism: McCulloch v. Maryland and the Foundation of Federal Authority in the Young Republic, by Richard E. Ellis, Oxford University Press, 2007.

Masters of the Game: Inside the World’s Most Powerful Law Firm
By Kim Eisler
Thomas Dunn Books, 2010, 352 pages
$26.00 hardcover, $12.99 Kindle

Reviewed by Jonathan Groner, freelance legal writer and PR consultant, Washington, DC.

Kim Eisler certainly has a way with the anecdote. Here he treats his readers to the inside story of the Oliver North case, the Monica Lewinsky scandal, the trial of U.S. Senator Ted Stevens (Alaska), and other famous cases of the last 25 years or so.

This account of how Williams & Connolly became as powerful as it is today takes up the story more or less where Evan Thomas’ outstanding biography of Edward Bennett Williams (see below) leaves off: at Williams’ death in 1988.

This book is a great read. My only reservation is that it tells the story through the careers of five leading partners (who are interesting individuals, to be sure), but doesn’t really tackle the firm as a whole. Other partners are often bit players in the story of the five central characters. Perhaps it’s my many years as a legal reporter, but I would have enjoyed learning more about the administrative and management decisions that firm leaders made over the years, the conflicts and strains that no doubt accompanied the firm’s growth to a size of 250 lawyers, the interesting issues (I assume) of ensuring the success of minority and women lawyers in the firm, and so on.

Eisler has obtained as much access as any other journalist, or more, to the notoriously publicity-shy partners at the firm, including Brendan Sullivan, who almost never discusses his cases publicly. (Click on the book images for more details or to purchase.)

The Man to See: Edward Bennett Williams
By Evan Thomas
Simon & Schuster 1992, 592 pages
$35.95 paperback

Reviewed by Dave Freedman, freelance legal and financial journalist, Chicago.

This is a superb biography of Williams (1920-1988), the brilliant Washington, DC, trial lawyer whose clients included sleazy politicians (Joe McCarthy), Hollywood stars (Frank Sinatra), underworld figures (Jimmy Hoffa), media moguls (Hugh Hefner), and felonious billionaires (Michael Milken). In his day he was the highest-paid lawyer in America, with fees reaching $1,000 per hour. He owned the Washington Redskins and Baltimore Orioles. A champion of civil liberties, he was at the top of President Nixon’s enemies list—even though he was an arch-conservative who support Robert Bork’s nomination to the Supreme Court. According to the author, he was “addicted to fame, power, and wealth.”

This “brutally honest” (NY Times) book reveals a lot about not only Williams the man, but also American politics and the legal system. The author Thomas was Newsweek’s Washington Bureau chief.

The End of Lawyers? Rethinking the Nature of Legal Services
By Richard Susskind
Oxford University Press, 2010, 303 pages
$25 paperback, $21.32 Kindle

Reviewed by Jonathan Groner, freelance legal writer and PR consultant, Washington, DC.

Richard Susskind, a British IT consultant and futurist, is not necessarily predicting the end of the legal profession, in this thought-provoking but overly long and convoluted book. (Note the question mark in the title.) He does predict that within a couple of decades, lawyering will have changed in ways that the typical law firm partner of 2010 can hardly envision.

The engine of change, says Susskind, is the Internet and information technology in general.

Originally published in 2007 and updated for the 2010 paperback, Susskind points to 10 “disruptive technologies” — among them ideas as prosaic as automated document assembly and as visionary as the provision of legal advice through open-source technology — that will alter the face of the profession in the USA and UK.

“Disruptive legal technologies are too important to be left to technologists,” Susskind says. They “bring great cost savings and new imaginative ways of managing risk.”

Susskind believes, for example, that except for the most customized, top-of-the-line engagements, legal work done by top firms will soon be largely standardized through the use of intelligent document assembly programs, the deployment of more paralegals and nonlawyers, and other innovations. Even high-end corporate work, he says, can benefit from standardization. The result will be lower costs to clients, a broader availability of legal services to the public, and possibly the end of the big law firm as we know it today.

Susskind is quite aware of the cutting edge of legal marketing. One of his “disruptive” techniques is “the electronic legal marketplace,” which includes online ratings of individual lawyers, online auctions, bulk purchasing, and readily available price comparisons. He foresees the multi-sourcing of legal services, increased confidence by clients that they are getting the best value for their money, greater choice, and of course lower costs.

The book can be slow going (Susskind has not learned how to write in short paragraphs), it can be repetitious, and Susskind’s examples are taken almost entirely from British life, law, and experience and may be quite foreign to the American reader. For example, Her Majesty’s Stationery Office, a government agency that Susskind regards as a key player in the legal Internet, sounds quaint to American ears.

Regardless, anyone who wishes to understand where the profession has been and where it is going should read this book.

Susskind is the author of The Future of Law (1996) and Transforming the Law (2000), both published by Oxford U. Press.

Unbound: How Entrepreneurship is Dramatically Transforming Legal Services Today
By David Galbenski
Self-published, 2009, 250 pages
$24.95 hardcover

Reviewed by Dave Freedman, freelance legal and financial journalist in Chicago.

David Galbenski is the founder and CEO of Lumen Legal, a legal staffing and consulting firm with headquarters in Royal Oak, Michigan, and offices in 17 other cities in the USA and India. He is also a lawyer who briefly practiced in the area of commercial litigation for a Detroit firm after he got his law degree in 1993. From 2008 to 2009 he served as chairman of the Entrepreneurs’ Organization, which has 7,000 members in 38 countries.

Like many consultants who have been fairly successful for a decade or two, Galbenski decided he needed to be an author. This is the book he wrote and self-published. You can often tell when a book is self-published, because it’s badly in need of direction from a professional editor. This one is a vague, superficial hodgepodge.

Galbenski touches lightly on seven trends in the legal profession, including consolidation, globalization, niche marketing, and alternatives to the billable hour. This is not news to you, if you’re the marketing director or CMO of a mid-size or large law firm, which is the book’s intended audience. Lawyers in small and solo firms who haven’t read a marketing book in a few years may learn something here.

Click on the book images for details.

After the Constitution was drafted and approved by the Constitutional Convention in 1787, it still had to be ratified by at least nine of the 13 states. Ratification was not a slam dunk, but turned out to be an intense and vitriolic struggle, especially in Virginia and New York. Failure to ratify the Constitution and form a new government may have resulted in the bankruptcy and/or dissolution of the union, intensified interstate conflict, and vulnerability to foreign attacks.

Triumvirate: The Story of the Unlikely Alliance That Saved the Constitution and United the Nation
By Bruce Chadwick
Sourcebooks, 2010, 352 pages
$15.99 paperback

James Madison (the primary author of the new Constitution, which replaced the Articles of Confederation), Alexander Hamilton, and John Jay teamed up to campaign vigorously for ratification from late 1787 through June 1788. Among other lobbying efforts, this “triumvirate” authored 85 essays that were later compiled in The Federalist Papers.

The Articles of Confederation did not allow the federal government to collect taxes directly from citizens, raise a standing army to defend the country (relying instead on state militias), or establish a unified economy. It did not establish an executive branch of government to serve as a check upon the power of Congress, such as it was. And amending the Articles was almost impossible. The new Constitution cured those deficiencies.

Anti-Federalists—Virginia legislator Patrick Henry and New York governor George Clinton chiefly among them—argued that the Constitution would concentrate too much power with the central government, taking sovereignty from the states and fostering tyranny; the blood that was lost in the Revolution, in a fight for liberty, would be wasted. The new Constitution also lacked a bill of rights, which seven of the 13 state constitutions included. The Federalists struggled to overcome these fears.

Triumvirate captures the drama and intrigue surrounding the effort by the Federalists to get all 13 states, not just the required nine, to ratify the Constitution. If New York or Virginia were to vote against ratification (even after New Hampshire became the ninth state to ratify), the young union might splinter into smaller confederations. Most seriously, if Virginia failed to ratify, the country would be deprived of the hero whom everyone expected would be the first president. George Washington did, in fact, exert tremendous behind-the-scenes influence on behalf of the triumvirate in the ratification struggle. (Washington did not participate in the state ratification convention, lest he be perceived as campaigning for president, which he considered a conflict of interest.)

Madison, Hamilton, and Jay were brilliant, talented, and valiant men. Chadwick gives each a mini-biography in Triumvirate. Their alliance was not unlikely, as the book’s subtitle claims.

Triumvirate is frequently repetitive and inelegantly written. But it offers a broad perspective on the struggle for ratification and the political division that still defines federalism in America.

James Madison and the Struggle for the Bill of Rights
By Richard Labunski
Oxford University Press, 2008, 352 pages
$15.95 paperback, $8.36 Kindle

The first 30 percent of Labunski’s book covers the ratification of the Constitution in Virginia in 1788, where the soft-spoken but brilliantly logical Madison squared off against the histrionic Patrick Henry.

That’s followed by Madison’s candidacy for U.S. Senate in 1789 and, after he lost that race, for the U.S. House of Representatives. The district in which he ran for office was gerrymandered by Henry to make it almost impossible for Madison to win. Nevertheless, Madison beat his friend (and future successor in the Presidency) James Monroe for the seat in the House. To get elected to Congress, he essentially had to pledge that he would lead Congress in adding a bill of rights to preserve individual liberty.

After the election, Madison persuaded another friend, George Washington, to support a bill of rights in his inaugural address to Congress in April 1789.

When the first Congress met, after a few weeks of administrative work, Madison shepherded the amendments through the House. Some Federalists felt the bill of rights was unnecessary because the Constitution gave the government no express power to abridge individual rights. But as some moderate Federalists admitted, the “necessary and proper” clause in Article I did create a loophole that a tyrant might exploit. Many anti-Federalists opposed any legislation regarding a bill of rights, calling instead for a second constitutional convention to restore sovereignty to the states.

Madison compiled a list of individual rights and protections from the seven state constitutions that provided for such limitations on the power of the state governments, and from those ratifying conventions that had submitted them in 1788 as recommendations for the first Congress. Legislators debated, adapted, condensed, and weeded that list down to 12 amendments. For example, the Senate combined two House amendments related to (a) freedom of religion and (b) freedom of speech, the press, assembly, and petition into one, which became the first amendment. The Senate also weakened the House’s ban on establishment of religion. Congress wrestled over whether to insert amendments variously into the body of the constitution or to attach them all together at the end.

Madison served on the conference committee that resolved the differences between the House and Senate bills. At Madison’s insistence, the establishment clause was revived in the first amendment. In the final vote in each house, anti-Federalists opposed the amendments as being too narrow and weak (they also wanted to add an amendment curbing direct taxation), but Congress finally achieved the two-thirds super-majority required to pass the bill. President Washington submitted 12 amendments to the states for ratification in October 1789.

The Bill of Rights became effective in 1791 after three-fourths of the 13 states (NC and RI had ratified the Constitution and joined the union in 1789 and 1790, respectively) ratified 10 of the 12 amendments.

Labunski, a journalism professor, fills his book with “sonorous oratory and colorful details of 18th-century politicking. The result is a lively look at the rickety early republic and Madison’s great balancing act” (PW).

The Second Amendment states: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” Some lawyers, judges, and historians (and lobbyists) interpret it narrowly, contending that the Second Amendment confers a restricted right applying only to service in state militias. Others interpret it broadly to mean an unlimited individual right, for the purpose of hunting, self-defense, collecting, and other sport, in addition to government militias. The following two books present those opposing views: Patrick Charles argues for restricted rights, and Stephen Halbrook argues for unlimited rights. (Click on the book covers for details via Amazon.com.)

The Second Amendment: The Intent and Its Interpretation by the States and the Supreme Court
By Patrick J. Charles
McFarland, 2009, 230 pages
$39.95 paperback, $14.99 Kindle

Charles examines the Second Amendment and the contentions of opposing groups, and concludes that the Second Amendment is meant only to protect the right of an individual to keep and bear arms for the purpose of defending the country in a militia force against standing foreign armies, or against domestic armies led by tyrants.

Charles received the 2008 Judge John R. Brown Award for Excellence in Writing, for his research on the Second Amendment and the right to bear arms in state constitutions. He is a former sergeant with the Marine Security Guard Battalion.

The Founders’ Second Amendment: Origins of the Right to Bear Arms
By Stephen P. Halbrook
Ivan R. Dee Publisher, 2008, 448 pages
$28.95 hardcover, $15.92 Kindle

The U.S. Supreme Court’s 2008 decision in District of Columbia v. Heller overturned the city’s handgun ban, and held that the Second Amendment protects an individual’s right to possess functional firearms for self-defense. Halbrook sees this case as part of a “trend toward an unlimited individual right.”

Halbrook, a research fellow at the Independent Institute (a libertarian think tank in Oakland, CA), examines the ideas underlying the Second Amendment during the Revolutionary generation (between 1768 and 1826), and how the founders may have regarded the issue of gun control. He notes that attempts by search-and-seizure to control the flow of guns was regarded as the typical tyrannical behavior of a standing army, so that liberty hinged on free ownership.

(Click on the book images for details via Amazon.com.)

The USA is the most punitive of all wealthy countries. One American adult in 100 is locked behind bars—that’s five times the incarceration rate in Britain, nine times the rate in Germany, and 12 times the rate in Japan. Unfortunately, higher incarceration rates do not necessarily result in lower crime rates.

Some people believe order is more important than justice—until they’re arrested for a crime they didn’t commit (or that they didn’t realize they committed).

Three Felonies a Day: How the Feds Target the Innocent
By Harvey A. Silverglate
Encounter Books, 2009, 325 pages
$25.95 Hardcover, $14.27 Kindle

Modern federal criminal laws have not only exploded in number, but also become so broad and vague that you have probably committed three felonies today, says Silverglate. He reveals how prosecutors can pin arguable federal crimes on any one of us, for even the most seemingly innocuous behavior. No social class or profession is safe from this form of social control by the government, warns Silverglate, who is a Boston criminal defense lawyer.

Ordinary Injustice: How America Holds Court
By Amy Bach
Metropolitan Books, 2009, 320 pages
$27.00 hardcover, $9.99 Kindle

Too many people don’t give a damn about preserving the rights and protections of criminal defendants, because the people accused and incarcerated tend to be poor and minorities. Do we really care what happens to them?

Be very careful. The rights and protections afforded criminal defendants form one of the cornerstones of freedom in America. Many people are arrested and charged for crimes they didn’t commit. If we let them be victims of prosecutorial abuse, we would not be free. That is, if we let them rot in the shoddy and corrupt criminal justice system, how much time before we (or someone close to us) are wrongfully prosecuted too?

Bach, a lawyer and journalist, compellingly portrays the people who suffer from the shoddiness of the system. She is a good storyteller. But she is short on practical solutions.

“Amy Bach takes us into courtrooms, judges’ chambers, and prosecutors’ offices and reveals what years of bias, neglect, and indifference have left: a system where the accused, victims, and their families get little or no individual attention, are often bewildered by the process and, at the end of the day are left without justice.” —Reverend Joseph E. Lowery, co-founder and president emeritus of the Southern Christian Leadership Conference

One Nation Under Arrest: How Crazy Laws, Rogue Prosecutors, and Activist Judges Threaten Your Liberty
By Paul Rosenzwieg and Brian W. Walsh
The Heritage Foundation, 2010, 268 pages
$14.95 paperback

America is in the throes of “overcriminalization”: We are making and enforcing far too many criminal laws that “create traps for the unwary” and “threaten to make criminals out of those who are doing their best to be respectable, law-abiding citizens.”

The authors urge us to “[take] the steps necessary to ensure that American criminal law once again routinely exemplifies the right principles and purposes.” The alternative, they warn, “is to squander the great treasure that is the American criminal justice system.” The Heritage Foundation, which published this book, is a conservative think tank based in Washington, DC.

The Tyranny of Good Intentions: How Prosecutors and Law Enforcement Are Trampling the Constitution in the Name of Justice
By Paul Craig Roberts and Lawrence M. Stratton
Three Rivers Press, 2008, 288 pages
$14.95 Paperback, $9.99 Kindle

Of the four books reviewed here, this is the only one I’d call extreme. It’s an alarmist, libertarian polemic, warning of a “police state that is creeping up on us from many directions…We the People have vanished.” The authors suggest that America, barring “an intellectual rebirth,” may go the way of “German Nazis and Soviet communists.”

Roberts and Stratton warn that our cherished individual rights are being destroyed by overzealous prosecutors, malevolent bureaucrats, law enforcement agents run amok, and pandering politicians who (indeed) compete to see who can be toughest on crime.

Their credibility suffers when they characterize J. Edgar Hoover as a paragon of morality and law enforcement restraint, qualities that they feel are lacking in American leaders today.

Publishers Weekly said, “Lost in the rhetoric of the authors’ call to arms is a useful analysis of how to balance competing individual and societal interests without sacrificing fundamental rights.”

Supreme Power: Franklin Roosevelt vs. the Supreme Court
By Jeff Shesol
W.W. Norton, 2010, 656 pages
$18.45 hardcover, $15.37 Kindle

In Franklin Roosevelt’s first term, which began in 1933 in the depths of the Great Depression, the Supreme Court struck down a series of his New Deal programs as unconstitutional. After his landslide re-election in 1937, FDR attempted to “pack” the Court by adding six more justices, to make sure his legislative agenda would not be destroyed further. His attempt, codified in the Judiciary Reorganization Bill of 1937, was interpreted by some legal scholars as a declaration of war against the Court, whose chief justice was Charles Evans Hughes. Some call it “the Constitutional revolution of 1937.” It was a severe political miscalculation by the President.

Although the bill failed, the “revolution” nevertheless may have influenced the older members of the Court to be more lenient toward FDR’s bills over the ensuing  years.

The author, Jeff Shesol, is a historian (he wrote Mutual Contempt, about the relationship President Lyndon Johnson and Robert Kennedy) and former speechwriter for Bill Clinton.

Shesol’s book is “a fascinating reconstruction of one of the great political and legal battles of the twentieth century,” said Jeffrey Toobin, author of The Nine: Inside the Secret World of the Supreme Court (2008). It is “an easy-to-read tale that unfolds like a thrilling novel,” said Christopher Malone, political science professor at Pace University.

Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices
By Noah Feldman
Twelve (Hatchette Book Group), November 2010, 528 pages
Hardcover $19.80

Four larger-than-life justices who served under FDR, despite their mutual animosity (or perhaps because of it), helped to steer the USA through the Great Depression, World War II, the Cold War, and the civil rights movement. Feldman calls them the “founding fathers of the Constitution we have today.” Each was a self-made man who came from humble beginnings. Each was, in his own way, a genius. They are:

• Louis Brandeis, a tiny, ebullient Jew who started as America’s leading liberal and ended as its most famous judicial conservative.

• Hugo Black, a Ku Klux Klansman who became an absolutist advocate of free speech and civil rights.

• William O. Douglas, a tall-tale Westerner who narrowly missed the presidency but expanded individual freedom beyond what anyone before had dreamed.

• Robert Jackson, a back-country lawyer who started off trying cases about cows and went on to conduct the Nuremberg trial, the most important international tribunal ever.

Scorpion tells the story of these four great justices, their relationship with Roosevelt, and with each other. Feldman is a professor at Harvard University, a contributing writer for the New York Times Magazine, and an adjunct senior fellow at the Council on Foreign Relations. He is the author of Divided by God: America’s Church-State Problem—and What We Should Do About It.

Click on the book images for details or to purchase.

Freedom for the Thought That We Hate: A Biography of the First Amendment
By Anthony Lewis
Basic Books, 2010, 240 pages
$10.85 paperback, $9.77 Kindle

I don’t know if most Americans appreciate how extraordinary our right to a free press is. Our news media are relatively free to criticize, hold accountable, and disclose secrets of the government and politicians, corporations and business leaders, organizations and public figures, celebrities, alleged criminals, and big shots. This freedom enables the press to act as an independent watchdog against abuse of power, and as an open marketplace of ideas. The USA has the freest press on earth, according to Pulitzer-prize winning author Lewis (author of Gideon’s Trumpet).

The book’s enigmatic title can be explained by a quote from an article by Hendrik Hertzberg, writing in The New Republic (July 14, 1986):

“The First Amendment contains no requirement that the speech it protects is harmless. On the contrary, speech that somebody thinks is harmful is the only kind that needs protecting.”

The language in the First Amendment is clear: “Congress shall make no law…abridging the freedom of speech, or of the press.” But its application involves many gray areas and legal quagmires, as Lewis demonstrates in his lucid legal history of free speech in the USA, starting with the 1798 Sedition Act (which criminalized criticism of President Adams). The history involves issues such as the difference between ordinary speech, commercial speech, and political speech; artistic expression, libel, privacy, obscenity, hate speech, and incitement to terrorism; and the press’s shielding of confidential sources.

Characters in this story include Oliver Wendell Holmes, Louis Brandeis, and others whose bold and stirring decisions on the Supreme Court have advanced and protected freedom of speech.

Freeing the Presses: The First Amendment in Action
Edited by Timothy E. Cook
Louisiana State University Press, 2006, 187 pages
$18.95 paperback

Six political communication scholars draw on history, sociology, political science, legal philosophy, and journalism to analyze the freedoms and privileges given to the news media and to reporters, and whether those freedoms actually help produce the kind of news that keeps American democracy strong.