JURIST: Books-on-Law is edited by Ronald K.L. Collins and David Skover of the Seattle University School of Law

Editorial Consultants:

We invited three legal scholars to read Beyond All Reason and to prepare questions to which the authors might reply, or begin to reply.  In addition to the editors of Books-on-Law, the questioners are Professors Nancy S. Marder (USC Law), John O. McGinnis (Cardozo Law) and John Henry Schlegel (SUNY Buffalo Law).  The online exchange, titled "Reason & Radicalism," is one of a number of innovative things that we have in store for you.  In that spirit, we now invite you to contribute to the Beyond All Reason exchange by clicking onto Talkback at the end of the Book Review section.

Who would ever have imagined that U.S. Const. Art. I. sec. 8, cl. 11 (the "letters of marque and reprisal" clause) might inspire a thriller novel and follow-up Disney movie?  Well, San Diego lawyer James W. Huston did, and his new book is Balance of Power (Morrow, 1998).

The plot pits a hawkish Republican Speaker of the House against a dovish Democratic President.  The conflict arises when the Commander-in-Chief fails to retaliate against Indonesian terrorists who hijack an American freighter and torture its crew -- all on live TV, of course.  Outraged by this, the Speaker calls for impeachment, while his young aide (Jim Dillon) discovers how his boss can take matters into his own congressional hands by invoking Art. I, sec. 8, cl. 11 to wage war with pirates armed with the best in high-tech air and sea weapons.  (Colonel Oliver North should have been cast for the movie.)  All sorts of things follow, including a multi-dimensional constitutional crisis.

Apart from Huston's novel, the letters of marque and reprisal clause is archaic. Congress has not commissioned private warriors in over a century-and-a-half.  See C. Kevin Marshall, "Putting Privateers in Their Place: The Applicability of the Marque and Reprisal Clause to Undeclared Wars," 64 U. Chi. L. Rev. 953 (1997).

Have you noticed?  Professor Akhil Amar (Yale Law) has been doing quite a bit of book publishing lately.  Two books in the last year or so: For the People: What the Constitution Really Says About Your Rights (Free Press, 1998) (co-authored with Alan Hirsch) and The Constitution and Criminal Procedure: First Principles (Yale University Press, 1997).  Now, in the blink of a digital screen, there is yet another:  The Bill of Rights: Creation and Reconstruction (Yale University Press, 1998) (cloth: $30:00; pp. 428).  Already, the soon-to-be-published book has been picked as an alternate selection by the History Book Club.

In this new book, replete with 121 pages of notes, Professor Amar examines the text, structure, and history of individual clauses of the 1789 Bill of Rights.  He also looks at their intended relations to one other and to other constitutional provisions.   Then, he shifts his focus to examine the constitutional work-product of the anti-slavery activists who profoundly changed the meaning of the Bill of Rights in the Reconstruction era.  With the Fourteenth Amendment, Amar posits, Americans underwent a new birth of freedom that transformed the old Bill of Rights.  His conclusion: We must hearken to both the Founding Fathers who created the Bill of Rights, and to their sons and daughters who reconstructed it.

An excellent and highly informative companion to Amar's most recent work is The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (Oxford University Press, 1997) by Dean Neil H. Cogan (Quinnipiac Law School).

If only Professor William Winslow Crosskey were available, we'd invite him to review Amar's book.  Absent Crosskey's return, we'll have to look elsewhere.  (Speaking of Crosskey, in a forthcoming issue we will reprint a 1953 book review of his Politics and the Constitution in the History of the United States (1953) -- a review by, of all people, Professor Arthur Linton Corbin, the great contracts scholar.  Corbin's review will be followed by a commentary.)

In a first-of-its-kind book, history professor Melissa Macauley (Northwestern University) tenders a bold assertion:  Litigation in late imperial China was a form of documentary warfare.  (Rather like the United States in the late twentieth century, don't you think?)

In Social Power and Legal Culture: Litigation Masters in Late Imperial China (Stanford University Press, 1998), Professor Macauley offers a social analysis of the men who composed the great Chinese legal documents.  She introduces her readers to "litigation masters" -- those legal facilitators ranging from professional complaint-masters to simple but literate men to whom people turned for assistance.   These "litigation masters" emerged as central players in many of the most scandalous cases in eighteenth-century and nineteenth-century China.  Such cases, maintains Macauley, reveal the power of scandal to shape entire categories of law in the popular and official imaginations.

The author characterizes litigation masters as entrepreneurs of power, intermediaries who typically emerge in the process of limited state expansion to provide links between local interests and the state.  These power-mongers routinely acted in the interests of the local elite and the male lineage.  But cases preserved in criminal archives also reveal a clientele surprisingly composed of the subordinate actors in legal disputes -- widows fighting in-laws and other men, debtors contesting creditors, younger brothers disputing older ones, and common people charging the rich.

Challenging earlier scholarship claiming that the Chinese legal system simply maintained the hegemony of elites and the patriarchal order, Professor Macauley maintains that the legal tools of domination were often transformed into weapons of social resistance and revenge.  Her book also examines the various ways in which legal practice, Confucian ideology, and popular entertainments like opera and storytelling coalesced into Chinese legal culture.

Social Power and Legal Culture: Litigation Masters in Late Imperial China will be available this December.

The September issue of Books-on-Law turns to Niko Pfund, the much talked-about editor of New York University Press.  We did an extended interview with Mr. Pfund, discussing a variety of topics ranging from how to get published to his views on alternative presses.  The interview will be in transcribed and audio form.

Ronald K.L. Collins & David M. Skover, Editors, Books-on-Law

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JURIST: Books-on-Law™ is edited by Ronald K.L. Collins and David M. Skover of the Seattle University School of 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 California at Berkeley School of Law (Boalt Hall); 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, 1998. —————————————————————————————
JURIST: The Law Professors' Network™ is directed by Professor Bernard J. Hibbitts, Associate Dean for Communications & Information Technology, University of Pittsburgh School of Law, Pittsburgh, Pennsylvania, USA, in consultation with an international Advisory Board. E-mail JURIST at JURIST@law.pitt.edu.

© Bernard J. Hibbitts, 1998. All rights reserved. These pages may not be copied, reposted, or republished, in whole or in part, electronically or in print, without express written permission.

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