The Florida Bar
www.floridabar.org
The Florida Bar Journal
March, 2011 Volume 85, No. 3
Books

Page 49

Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices
By Noah Feldman
Reviewed by Mark F. Lewis
You might think that four men, all politically connected to Franklin Roosevelt, would project a united liberal front during their days on the Supreme Court. But as the title of this book — taken from a quote by Frankfurter’s clerk Alexander Bickel — and some chapter headings (e.g., “Betrayal” and “Fracture”) suggest, this was hardly the case.

In this very readable book, Harvard Law professor Noah Feldman traces the paths that took Hugo Black, Robert Jackson, Felix Frankfurter, and William O. Douglas to the High Court and how “beginning as allies, they would become enemies, each with his own theory of how to understand the Constitution.”

Feldman first discusses each man’s pre-Court experience and their Senate confirmations, which were conducted far differently than those of recent years. He then examines some of their most famous — though not necessarily greatest — opinions, against the backdrop of both their historical settings and the personal battles that were raging among them.

World War II did not bring out the best of the justices. They ruled against Jehovah’s Witnesses who refused to recite the pledge of allegiance (a decision later reversed) and, in perhaps their most infamous decision, upheld the internment of Japanese citizens. They fared little better in the early post-war years when dealing with the threat of communism. Yet these opinions planted the seeds for later, more judicious ones, as they introduced the now standard phrases of “strict scrutiny” and “clear and present danger.”

In addition to his excellent legal analysis, Feldman discusses the human side of the justices. Jackson, who went to Nuremburg to prosecute Nazis, lost his lifelong dream of becoming chief justice, an outcome aided by Black, who helped block the nomination as payback for a previous personal affront. Douglas’ presidential ambitions often seemed to get in the way of his judicial responsibilities and his relationships with his brethren on the court. Justices take sides at times based on personal animosities, some not talking to each other for years.

In spite of all their differences, Earl Warren was able to use his political acumen to get Frankfurter, a man who championed judicial restraint (often to the detriment of causes he believed in), Black, a former Klan member, and the other justices to attain greatness for the Court through its unanimous decision in Brown v. Board of Education.

As Feldman so eloquently shows in the book, the answer to the classic social studies question, “Are we a government of laws or men?” is clearly “both.”

Mark F. Lewis is an assistant state attorney in the 13th Judicial Circuit, Tampa.


Aviation Law after September 11th
By Timothy M. Ravich
Although airplane travel is a routine part of contemporary life, the contest between customer service and convenience, on the one hand, and safety and security, on the other hand, has never been more challenging. Airline passengers fume at airline automation, overbooking practices, delays, congestion at airports, and invasive security protocols, including profiling initiatives and “no-fly” lists.

At the same time that passengers demand an expansion of rights in the form of an “airline passengers’ bill of rights,” lawmakers are pressured by circumstance to restrict travel rights in order to avoid a repeat of the terrorist attacks of September 11.

In Aviation Law after September 11th, Timothy M. Ravich, chair of The Florida Bar Aviation Law Committee and a Florida Bar board certified aviation lawyer, introduces the topic of aviation law with emphasis on the subject post-September 11, 2001.

In the book, Ravich presents the main legal, business, and political aspects of the nation’s air transportation system. Although a definite set of laws and regulations exists with respect to the ownership, operation, maintenance, and use of aircraft, airports, and airspace, “aviation law” is contextual, involving and requiring the study of other areas of substantive and doctrinal law, including administrative, bankruptcy, constitutional, contract, labor, procedural, property, and tort law, as applied in a specific industry. Aviation Law after September 11th features each of these subject areas under the broader heading of aviation law.

Additionally, Ravich incorporates a business perspective into his legal text by juxtaposing the major tensions in the commercial and general aviation marketplace: consumer protection versus the corporate bottom-line, regulation versus deregulation, private enterprise and positive government, price versus convenience, liberty and privacy interests versus national security, internationalism versus nationalism, democracy versus terror, and fundamentally, life and death.

Aviation Law after September 11th is segmented into six chapters — aviation travel rights, deregulation and federal preemption, aviation economics, labor and management, aviation security, and accident litigation — and provides end-of-chapter notes and problems for further study.

The book presents more than legal precedent for judges, lawyers, and students of aviation law. It features primary literature of the evolution of the law governing a critical transportation system for the e-commerce era and captures the reaction of a nation founded upon the rule of law to unprecedented opportunities and threats. At its core, then, Aviation Law after September 11th offers a historical narrative of the “war on terror” through court opinions, regulations, and statutory law; the circumstances in which air passengers travel today; and the policies that lawmakers are implementing to optimize and protect the global mobility of its citizens.

Aviation Law after September 11th is a 928-page hardcover book available for $99.95 from Vandeplas Publishing at www.vandeplaspublishing.com and www.barnesandnoble.com.


Raised by the Courts
By Irene Sullivan
When the U.S. Supreme Court ruled in May 2010 that juveniles could not be sentenced to life without parole for crimes short of homicide, Judge Irene Sullivan breathed a sigh of relief. She then promptly continued to build a case for the reforms necessary for aligning America’s juvenile system with international human rights standards.

Raised by the Courts: One Judge’s Insight into Juvenile Justice represents a career’s worth of lessons Sullivan has learned on the bench as a circuit judge in Florida’s unified family court. Sullivan has met thousands of children, at-risk, and teenage offenders.

She has seen case after case of young people who have made their way from abuse victimization to foster care to juvenile justice to adult corrections. In the book, Sullivan provides a “do what works” manifesto for juvenile justice in the U.S.

Sullivan traces the process by which she came to her understanding of American juvenile justice, from the awakening offered by her earliest cases to her despair over problems to enlightenment afforded by today’s most effective prevention and rehabilitation programs.

Along the way, she highlights some of the biggest challenges — a growing and underserved population of girls in the justice system, cyclical domestic violence, inadequate education, and substance abuse at an early age. She tells compelling stories of young men and women in her courtroom who are by turns charming and maddening.

Sullivan also discusses the crucial facts that played a role in the Supreme Court’s decision earlier this year: That kids and teenagers are not simply undersized adults; their brain development not only mandates a different set of sentencing guidelines, but also a different approach to intervention and rehabilitation.

Drawing on national and state studies of cost-effective juvenile redirections, Sullivan examines a host of programs that are providing real benefit for relatively modest costs, including whole-family interventions, multi-systemic therapy, innovative youth courts, and diversion from corrections for low-risk cases.

Raised by the Courts (hardcover) is offered through Kaplan Publishing for $24.99.


Torture, Terror, and Trade-Offs
By Jeremy Waldron
A professor of law at the New York University Law School, Jeremy Waldron details the potential problems facing the Obama administration and the government of the United Kingdom since President George W. Bush left the White House.

Torture, Terror, and Trade-Offs offers insight into the U.S. reaction to terrorism since 9/11 and what the author considers to be the major controversies of the war on terror. Waldron covers the morality and legality of torture, whether security can be “balanced” with liberty, and the relationship between public safety and individual rights. This volume is a collection of Waldron’s works, including two previously unpublished essays and a new introduction.

Waldron’s collection is available from Oxford University Press (hardcover, 400-pp.) for $30.


The Writer’s Guide to the Courtroom: Let’s Quill All the Lawyers
By Donna Ballman
Florida Bar member and Ft. Lauderdale attorney Donna Ballman offers a reference point to legal fiction writers for the research stage of the writing process. Ballman describes:

• The inner workings of wrongful termination;

• The ins and outs of sexual harassment, discrimination, arbitration, and mediation; and

• The definitions of a variety of legal terms.

Ballman delivers The Writer’s Guide to the Courtroom in basic terminology, producing a text designed to help writers insert the law realistically and seamlessly into their stories. She covers nearly every aspect of the civil court system so authors can sue, litigate, and process their characters in their fictional worlds. The guide (softcover, 281 pp.) can be purchased online through Amazon for $18.95, and more information about the author can be found at www.ballmanfirm.com.


Liberty of Contract: Rediscovering a Lost Constitutional Right
By David N. Mayer
Is economic liberty the same as personal liberty? In his new book, Liberty of Contract: Rediscovering a Lost Constitutional Right, David N. Mayer examines the history of the liberty of contract — the right of Americans to bargain over the terms of their own contracts — and shows how this right, our economic liberty, has been diminished by court decisions.

Mayer, a professor of law and history at Capital University, traces the foundations of the liberty of contract and illustrates its demise. The history Mayer presents begins at the onset of the 20th century with the Lochner decision.

In this decision, the Supreme Court ruled against a law that interfered with the freedom of people to bargain over the terms of their own contracts. Mayer discusses how he believes society has transitioned from “special rules” for particular persons and groups to “general, more abstract rules for all” and highlights passages from several notable Supreme Court cases that may have influenced this transition.

The author also covers the New Deal revolution and the Fifth, 10th, and 14th amendments to the Constitution, discussing their relevance to economic liberty and property rights.

Liberty of Contract (188-pp.) is published by the Cato Institute and is available at www.cato.org in hardback for $21.95 and in paperback for $9.95.


Bar members can submit book reviews of approximately 500 words for publication. The reviews should be related to law but may be practical, esoteric, entertaining, or fiction. Reviews should include the number of pages, the publisher, and cost.

Book reviews may be e-mailed to ajones@flabar.org.

[Revised: 02-10-2012]