When the Laws Fall Silent

Eric K. Yamamoto, In the Shadow of Korematsu: Democratic Liberties and National Security.  New York: Oxford University Press, 2018.

In his book, In the Shadow of Korematsu, Professor Yamamoto analyzes the legacy of Korematsu v. United States[i].  His critique is sobering. 

Korematsu’s holding is troublesome if one believes that Constitutional rights are sacrosanct:  The United State Supreme Court held that a U.S. citizen’s Constitutional rights can be abridged in times of war if it is deemed to be necessary to preserve national security.  Executive Order 9066 authorized the collection and relocation of Japanese American citizens even though no one had committed any crime.  The government pushed the narrative that Japanese Americans had an inherent loyalty to Japan, a loyalty stronger than their citizenship to the U.S., and that loyalty would pose a danger to everyone living on the west coast.  That argument convinced the Court that national security was their prime concern, not racism, and successfully persuaded the Court that keeping the nation safe trumped the rights of citizens. 

In retrospect, legal scholars, historians, law professors, and judges all acknowledge that in a blatant act of racism, the government exaggerated the dangers posed by citizens with Japanese ancestry to support the necessity of Executive Order 9066.  Justice Jackson in his dissent pointed out, “But here is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign.[ii]”  Justice Murphy, in a separate dissent, stated plainly, “Such exclusion goes over ‘the very brink of constitutional power,’ and falls into the ugly abyss of racism.[iii]” 

The unfortunate legacy of Korematsu is that many have taken this case to mean that courts are likely to abridge civil rights protections in times of war.  Professor Yamamoto points out throughout the book that many people since then have tried using fear as motivation to curtail the rights of minority groups and those with limited power to fight back.  But this misapplication of the holding by the government and special interest groups is only one of Professor Yamamoto’s conclusions.

His second conclusion is that, when at war, the judiciary is loath to challenge actions taken by the other branches of government, and that this is one area where the courts intentionally do not assert their independence.  Rather, it is the opposite:  in times of war, the courts will defer to the expertise of the President and the Legislature.  And he is not the only scholar to make this assertion.  In 2014 Justice Antonin Scalia was asked if the government might relocate Muslims like they did Japanese Americans.  He said,

Korematsu was wrong … But you are kidding yourself if you think the same thing won’t happen again … There was panic about the war and the invasion of the Pacific and whatnot.  It was wrong, but I would not be surprised if it happened again in time of war.[iv]

In response to the question, what would the Court do today if faced with a similar situation, Justice Scalia answered, “inter arma enim silent legis,” or translated, “in times of war, the laws fall silent.”  

Judge Richard Posner of the Seventh Circuit Court of Appeals, known for applying economic analysis in deciding the law, posits that in a cost-benefit analysis, the courts would likely lean towards supporting public safety over an individual’s rights.  Professor Owen Fiss’s analysis of recent court cases, specifically Holder v. Humanitarian Law Project[v], supports the author’s conclusion that war, and for this case, specifically the war on terror, is the cause of judicial deference to the other branches of government. 

To be fair, not all judges and not all government officials are this dismissive of our Constitutional rights.  Many judges have taken pains to distinguish the circumstances that surrounded Korematsu from current cases, and they use a stricter standard of scrutiny to make sure that discrimination is not the result of government overreach.  Perhaps this kind of careful examination is the first step in ensuring that Korematsu’s legacy of social injustice is not repeated.

[i] Korematsu v. United States, 323 U.S. 214 (1944).

[ii] Korematsu, at 243.

[iii] Korematsu, at 233.

[iv] Debra C. Weiss, Scalia: Korematsu was Wrong, but “You’re Kidding Yourself” if You Think It Won’t Happen Again,” ABA J. Feb 4, 2014, as cited in Eric K. Yamamoto, In the Shadow of Korematsu: Democratic Liberties and National Security.  New York: Oxford University Press, 2018, p. 5.

[v] Holder v. Humanitarian Law Project, 561 U.S. 1 (2010).


Who’s Packing?

Jeff Shesol, Supreme Power: Franklin Roosevelt vs. The Supreme Court. New York, N.Y. : W.W. Norton & Company, 2010.

This 2010 book attracts interest for its coverage of a subject that arose during last year’s presidential campaign.  On the issue of court packing, author Jeff Shesol describes political and legal events of the 1930s related to the New Deal and the Supreme Court.  The author explains difficult topics in detail, specifically the viability of the New Deal, the economic order during the depression, and Roosevelt’s attempts to pack the court to sway its rulings in favor of his programs.  As the story unfolds, the parallels to current political and legal events are apparent, and not solely on the issue of court packing.

The author explains the 1930s legal background and historical framework.  While the Constitution is silent on the size of the Supreme Court, the number can be changed by Congress.  In fact, the number of justices has changed over the past centuries: in 1789 there were six justices; in 1801 there were five; in 1837 there were nine; and in 1863 it rose to ten to secure the Court’s support for Lincoln’s war policies.  The shifting number of justices reflected the political power of the congressional and the executive branches.  In 1866, there were nine justices on the court, and that number has remained ever since. 

The depression of the 1930s fostered Roosevelt’s New Deal, and with it, new political initiatives that had major ramifications for the nation, especially as they impacted laissez-faire, federal control (and the emerging welfare state), and the interplay of congressional decisions and court action.  The ensuing battle with the Supreme Court, which Roosevelt feared would strike down various components of the New Deal, also engendered questions about the rigidity or flexibility of the constitutional landscape.  As Shesol reveals, in 1937 Roosevelt devised a strategy to save his progressive proposals—by increasing the number of justices on the court from nine to fifteen and thereby securing a more liberal majority of justices who would favor his policies.  This proposal became increasingly disdainful among many individuals including those Roosevelt considered his supporters.  The court packing bill was ultimately eliminated by the Senate Judiciary Committee.

The many parallels to current events include the following:

National EmergencyThe Great DepressionThe Global Pandemic
Federal Legislative InitiativeThe New DealBuild Back Better
State Legislative Initiatives   The Mortgage MoratoriumMortgage/Eviction Moratorium
Supreme Court Split DecisionsChief Justice in fluxChief Justice in flux

The mortgage moratorium of the thirties had ties to Minnesota.  A major court case originated when John H. Blaisdell was sued by the Home Building Association regarding a new Minnesota law that was passed as an emergency measure to place a moratorium on mortgage payments and foreclosures.  The Loan Association argued that the law violated the contract and due process clauses of the Constitution.  The U.S. Supreme Court, however, ruled that the Minnesota legislature was justified in enacting the moratorium law as an emergency measure under the police power of the state (see Home Building and Loan Ass’n. v. Blaisdell, 290 U.S., 1934).  Shesol notes that this was the first of the New Deal cases that came before the Supreme Court (p. 65).

As far as who might pack the court in the thirties despite a more evenly divided Supreme Court, Roosevelt directly strategized to pack the court to ensure that his New Deal policies would advance.  His efforts met with great opposition.  In comparison, today’s Court is more conservative than its 1930s counterpart and is one of the reasons President Biden received many questions about court packing during his presidential campaign.  While President Biden has skirted the issue about court packing, it’s likely to re-emerge with the Court’s conservative decision-making.  For an understanding of court packing and The New Deal, Shesol gives a detailed and well-documented perspective about the individuals and the processes involved.


Richard D. O’Brien (1923-1939)

Richard Dillon O’Brien was born on August 16, 1874 in St. Paul, Minnesota to parents Christopher Dillon and Susan E. (Slater) O’Brien.  He was educated in the St. Paul public school system and graduated from St. Paul Central High School in 1894.

O’Brien enrolled in law school at the University of Minnesota, but his legal studies were interrupted when he left to serve as a regimental quartermaster sergeant of the Fourteenth Minnesota Infantry in the Spanish American War.  After serving, he returned to finish law school and graduated in 1900.  His first job as an attorney was with the firm owned by his father, Christopher D. O’Brien, and his uncle, Thomas D. O’Brien, located in the Globe Building in St. Paul. 

He led a distinguished political career as well as a legal one.  Soon after joining his father’s firm, he was elected to the St. Paul City Council, and then, in 1907, he was elected to be Ramsey County Attorney (an office that his father, uncle, and later, his brother, Christopher D. O’Brien, Jr., also held).  During his tenure as County Attorney, Governor A.O. Preus also appointed O’Brien to the Board of Trustees for the Soldiers’ Home. 

As County Attorney, O’Brien oversaw many cases covering a variety of crimes, such as bank robbery, election fraud, and of course, murder.  The most famous criminal case he tried was against Frank Dunn for the murder of his wife Alice, see 140 Minn. 308 (1918).  The case was quite scandalous, as Mr. Dunn had apparently hired hit men from Kansas City to kill his wife because local criminals did not want to take the job.  

O’Brien was a fervent advocate of abolishing the death penalty in Minnesota.  The death penalty had long been a controversial subject since the death of Ann Bilansky in 1860.  In 1906, the circus-like atmosphere of the botched hanging of William Williams (which led to his suffering for 15 minutes until he died), and the subsequent lawsuit against the newspapers that reported the hanging meant that the death penalty was at the forefront of Minnesota politics.  O’Brien felt that the death penalty would have a negative impact on convictions due to moral objections that potential jurors would have against the death penalty. 

O’Brien served as Ramsey County Attorney for 16 years until 1923 when Governor Preus appointed him to the Ramsey County District Court to replace Judge Louis Kelly upon his retirement.  Judge O’Brien served on the bench for the next 16 years until his death in 1939.  As an attorney and judge, he was known for his scrupulous preparation for his cases. At a memorial service, friends said that he was calm, had courage of conviction, and had a strong sense of justice.  His colleagues on the bench remembered his belief that “justice delayed is justice denied”; thus he strove to keep the court calendar up to date and to give all litigants a speedy trial.

In addition to his work as a judge, he also taught at the St. Paul College of Law.  His area of expertise was criminal law and procedure.  In 1937, he was elected to the law school’s Board of Trustees.

On February 23, 1939, Judge O’Brien fell suddenly ill and died in St. Paul at a friend’s home.  He was buried in St. Paul, Minnesota.  His wife, Edith, preceded his death, but he was survived by their four daughters.

Judge O’Brien’s portrait was one of the 29 portraits of District Court Judges commissioned by the Ramsey County Bar Association in 1930.  The artist, Edward Brewer, painted these portraits as well as the portraits of many prominent Minnesota families – the Cargills, the Daytons, and both Governors C. Elmer Anderson and Elmer L. Anderson.  To see a very interesting photo of the artist Edward Brewer painting Judge O’Brien’s portrait with the half-finished portrait displayed, please see Patricia Condon Johnson’s article, “Edward Brewer:  Illustrator and Portrait Painter” published in Minnesota History


Anne E. Cowie, “Two Horses and One Buffalo Robe: All the Frailties of Human Nature:  The Ramsey County Attorney’s Office and Its 150 Years”, Ramsey County History, Fall 2000, Vol 35, #3, pp. 4-16.


Patricia Condon Johnson, “Edward Brewer:  Illustrator and Portrait Painter,” Minnesota History, Spring 1980, pp. 2-15.  


Memorial Services for Deceased Members of the Ramsey County Bar held at the Courthouse on April 8, 1939http://www.minnesotalegalhistoryproject.org/assets/Ramsey%20Mem%20-%201939.pdf


Life Beyond the Mountains

Khoua Thao, Beyond the Mountains. Coppell, TX: Publisher not identified, 2021.

The beginning of Khoua Thao’s memoir, Beyond the Mountains, is a familiar scene reminiscent of Vietnam and more recently, Afghanistan:  Desperate people crowding the airport in Long Cheng, Laos, struggling to board US military planes to evacuate to safety.  Thao and his family were among the many Hmong of Laos who weren’t on the planes.  However, his father found a way to get his family, consisting of his wife and five young children out of Laos into Thailand, and then eventually to the United States. 

Most of the book is a recollection of his childhood life before his family left the familiarity of life in the Laotian mountains.  In all the small villages and enclaves where he lived, Thao had good memories of his life, despite living in what we modern Americans would consider to be very poor conditions.  His father was a valued elder of the community, and neighbors worked collectively to survive and live, which they did with joy and dignity.

Many of these stories describe events that show how resourceful and well-respected Thao’s father was.  With very little, he managed to keep his family safe from animal as well as human predators.  Thao also writes with clear detail how he and his family appreciated everything they had, from the small scoop of rice and chicken leg or fried grubs that he would have for lunch, to the mementos that his family tried to take with them as they fled their mountain village (two blankets from a family friend), as they secretly tried to escape Laos by pretending to be traveling to visit family in Viengchan.  The blankets did not make it with them to the United States; they were confiscated by the military at a roadblock.

This detail does much to prepare the reader for the culture shock that the author and his family experienced once they were able to successfully emigrate from the mountains of Laos to the stark, modern streets of Selma, Alabama.  This section is the shortest in the book, but the reader can really understand the amazement and gratitude that the family felt as they were introduced to indoor plumbing, soft beds, and a refrigerator that kept food cool and fresh.  Khoua Thao’s memoir is an excellent resource for anyone wishing to know more about the Hmong people and their refugee experience. 


The Case for Reparations in America

William A. Darity Jr. and A. Kirsten Mullen, From Here to Equality: Reparations for Black Americans in the Twenty-First Century. Chapel Hill: University of North Carolina Press, 2020.

This book is about reparations — and so much more.  The authors Darity and Mullen explain how the 1800s were a time when Americans both perpetrated racial harm and gained from the harm, whether or not they inflicted it.  The authors offer two criteria for those who would qualify for reparations: first, U.S. citizens would have to establish that they had at least one ancestor who was enslaved after the formation of the American republic. In addition,

they would have to prove that they self-identified as “black,” “Negro,” Afro-American,” or “African American” at least twelve years before the enactment of the reparations program or the establishment of a congressional or presidential commission “to study and develop reparations for African Americans”—whichever comes first. 

Page 258

Historically, various attempts to redress grievances were made and included “40 acres and a mule”, a promise made to blacks during the Civil War but which the federal government failed to provide. Granting land, education, free housing, and paid employment were also considered as compensation to blacks.  Unfortunately, most efforts were met by overt, white opposition.  In the South, black schools and churches were burned.  Moreover, President Andrew Johnson’s hostility toward blacks became a key factor of obstruction and sowed the seeds for the Jim Crow period that followed Reconstruction.

While the authors focus on past efforts to offer reparations, the text overwhelmingly details abuses to blacks during the Civil War and Reconstruction periods of American history.  The authors include rarely described events such as those that took place in the North during the Civil War when anti-black riots occurred in New York City.  The riots were caused by prominent white supremacist and anti-draft participants.  At the same time, black troops increasingly became vital to the Union cause, and a total of 180,000 black men had served the Union army by the end of the war.

In a comparatively short chapter on how to make reparations work, the authors call upon the U.S. Congress to authorize payments from the U.S. Government. They cite H.R. 40, a resolution originally introduced in 1989 by the late Congressman John Conyers and now sponsored by Representative Sheila Jackson of Texas.  House Resolution 40 is entitled “Legislation to Study and Develop Slavery Reparations Proposals.”  The authors also describe various methods by economists to construct estimates (totaling in the trillions) to achieve an appropriate remedy.  As a political strategy to advance reparations, the authors state that colleges and universities should sponsor a national effort to compensate for harms.

According to the authors, their book offers contrasting information about the black experience in America—one that counters a sanitized and inaccurate version of American history.  In their narrative, Darity and Mullen make a comprehensive case for black reparations in America.  Academic and scholarly, this notable book includes detailed notes and references that comprise about one third of the content.  This well-documented work is a pivotal contribution to black history and the path “From here to Equality.” 


A Historic Look at African American Voting Rights

On Account of Race

On Account of Race: The Supreme Court, White Supremacy, and the Ravaging of African American Voting Rights by Lawrence Goldstone.  Berkeley, California: Counterpoint, 2020.

In this well-documented book, Lawrence Goldstone describes post-Civil War efforts to reverse many of the rights gained by African Americans through the 13th, 14th, and 15th amendments.  While many former Confederates remained opposed to the rights of Blacks, Goldstone details the demoralizing erosion of rights for the Freedmen that resulted from governmental and non-governmental actions.  Most disconcerting is the role that the U.S. Supreme Court played in the process.  In a series of decisions the Supreme Court laid “the groundwork for taking back from black people almost every right of citizenship that had been promised to them by the nation that had enslaved them.” (page 78)  Using many primary sources to describe the post-Civil War social, political, and legal climate, Goldstone weaves a theme highlighting the erosion of voting rights for Blacks. 

The post-President Grant era saw a shift in political power, and Republicans began opposing integration efforts despite the passage of the 1875 Civil Rights Act which was supposed to enforce equality as defined in the 14th amendment.  The Act provided for equal enjoyment of accommodations, public conveyancers, and other social amenities.  Ultimately, the expansion of rights for Black citizens that encouraged integration into mainstream life created fear and resistance with many White voters.  These fears even existed among people who once favored Black suffrage.  Consequently, implementing integration policies drove many hesitant White businesses to exclude Black customers, despite the imposition of fines for violators.  In both the North and the South, voting registrars ignored the law and denied Blacks the right to vote.

The erosion of rights for Black Americans failed to garner attention in the federal courts.  The Supreme Court remained idle for several years and failed to hear any appeals of federal cases related to equal rights until 1875.  In U.S. v. Reese, 92 U.S. 214 (1875), the defendant refused to accept the poll tax from William Garner, a person of African descent, thereby prohibiting him from voting.  The question before the Court was whether the Enforcement Act of 1870 was a valid exercise of Congress’ power to enforce the 15th amendment.  The Court concluded that the amendment didn’t confer the right to vote, but it rather criminalized the denial of the right to vote based on race.  However, there was no legislation defining the punishment, consequently the defendants remained unaccountable:

We must, therefore, decide that Congress has not as yet provided by ‘appropriate legislation’ for the punishment of the offence charged in the indictment; and that the Circuit Court properly sustained the demurrers, and gave judgment for the defendants.  Reese, 92 U.S. at 221. 

Interestingly, the case, which originated in Kentucky, was prosecuted by John Marshall Harlan, a Republican and former slaveholder, who became a U.S. Supreme Court Justice in 1877.  In 1896, Justice Harlan was the lone dissenting voice in Plessy v. Ferguson, 163 U.S. 537 (1896).

Goldstone also describes a shadow government, or “the Invisible Empire” (page 48) that was the Ku Klux Klan.  He explains that the Ku Klux Klan began when six young Confederate veterans began targeting Black people.  These activities evolved into more terrifying tactics that ultimately impacted elections when Black voters became fearful of the Klan and were discouraged from voting.  In areas where they were not deterred by the presence of the U.S. Army, the shadow government kept newly-freed Black citizens from exercising their voting rights through fear and intimidation.

While Goldstone’s narrative focuses on the post-Civil War era, he also highlighted modern efforts.  The 1965 Voting Rights Act signed by President Johnson banned tactics used in the South to deny people of color the right to vote, and Goldstone claims that the law was successful in getting increased numbers of African Americans to vote.  It begs the question as to why its passage took 100 years after the Civil War.  However, Goldstone also describes the 2013 Supreme Court case Shelby County Alabama v. Holder, 570 U.S. 529 (2013) which is construed by many as an anti-voting rights case pertaining to provisions of the Voting Rights Act of 1965.  A more perplexing (albeit political) question is the Court’s affirmation of measures to weaken voting rights that have taken so long to attain in the first place.

The book is available for loan from the Ramsey County Law Library.


Don Lemon Brings the Heat

CNN’s Don Lemon is now out with his second book, This Is the Fire: What I Say to My Friends About Racism. The title pays homage to James Baldwin’s classic work, The Fire Next Time. In the tradition of writers such as Baldwin and Ta-Nehisi Coates, Lemon opens with a letter to his nephew, dated May 25, 2020—the day Minneapolis Police officers killed George Floyd. While Lemon pulls from interviews, conversations, and his childhood, the book is primarily placed in the events of the last year: the COVID-19 pandemic; police killings of Black Americans; and the 2020 presidential election. Through these current events, Lemon presents his stance on issues such as the Defund the Police movement, Confederate monuments, reparations, and what individuals can do about the white supremacist system in which we find ourselves today.

While agreeing that we must change how we think about policing in America, Lemon admits that calls to defund the police have made him “cringe,” arguing that the movement is unrealistic and alienating. He insists that the movement is “for those who are willing to fight for change but can’t stomach the long haul.” However, Lemon equally excoriates those who continue to tell Black people to “go slow” in pushing for police reform, asking, “But how much more slowly could we have gone? And what has been the reward for the virtue of patience?” Furthermore, Lemon points out that while police brutality is a racial issue, it’s not the entire picture. Violence against Black people happens in Congress in the form of legislation disproportionately affecting Black citizens, in CIA operations which purposely put drugs in Black neighborhoods in the 1980s, and in the overincarceration of Black men, women, and children for petty crimes and nonviolent drug offenses. Racial violence happens at all levels and areas of government, and we must fight it in all its forms.

Lemon also finds reparations improbable. After doing some back-of-the-napkin math regarding what economic reparations for slavery would look like (figuring about $655,200 per enslaved person), he concludes that “there is no paying this back,” arguing that we must instead focus on creating greater economic opportunity for Black Americans going forward.

Lemon’s expertise really shines in Chapter 5, the book’s discussion of racism in media and what should be done about it. Lemon clearly knows cinema, a passion that he shares with his mother. He explains that they have a complicated relationship to the representation of Black people in classic films, such as Hattie McDaniel and Butterfly McQueen’s performances in Gone with the Wind. However, Lemon staunchly disagrees with efforts to remove films deemed racist, dubbing those efforts “censorship” and “cancel culture,” writing that “if we erase those images…we create gaps in the essential story of how an economic system based on White supremacy developed in the United States and maintained its choke hold on us well into modern times.” He instead praises efforts like that done by HBO Max to place those films in context via introductions by scholars.

Another chapter in the book is devoted to the ways money can be used to influence change, titled “About the Benjamins.” He provides an overview of the economic history of Black people: brought to America for money; excluded from stores and community centers in the Jim Crow era; and suspiciously followed by security in stores today. Lemon shares a story about experiencing discrimination as a customer himself and details his decision to return his purchase. He asks the reader to think carefully about who and what they are supporting when they spend money, assuring readers that the market will respond with more progressive politics.

In one instance, Lemon recounts the story of General Williams Carter Wickham, a “reluctant rebel” in the Confederacy whose statue was erected in Monroe Park in Richmond, Virginia in 1891. Lemon figures into the picture when he interviews two of Wickham’s descendants, a White descendant and a Black descendant. In the interview, both descendants agreed that the statue should be removed, and they petitioned for its removal. However, three years after the petition, what finally resulted in the removal of the statue was the actions of protestors in 2020, who tore it down themselves. The story illustrates the kind of healing that can be done by talking about and acknowledging the past but underscores the fact that at the end of the day, actions speak louder than words.  

One may wonder to whom Don Lemon is speaking when he says this book is what he says to his “friends” about racism. Throughout the book, Lemon specifically addresses either his White or Black audience members with different exhortations. He asks White readers to “pocket that But I’m Not Racist! Card,” insisting that “It doesn’t matter if you are racist or not racist or anti-racist; our society is racist.” When he speaks to his Black audience, it’s to ask them to “swallow our righteous wrath, making it clear that we will do our best to forgive, though we dare not ever forget.” Whoever the audience is, Lemon pushes the reader to do something, using the momentum of the current outrage against racial injustice to propel us forward.

This book is available for check out at the Ramsey County Law Library.

Don Lemon, This is the Fire: What I Say to My Friends About Racism. New York: Little, Brown and Company, 2021.


Why Do the Innocent Plead Guilty?

Several years ago, Judge Jed Rakoff began writing articles for the New York Review of Books.  The revised essays are the basis for his recent book, Why the Innocent Plead Guilty and the Guilty Go Free, where he concisely shares his views on problems with the current legal system. 

It seems counter intuitive for someone who knows he is innocent to agree to a plea, but Judge Rakoff lays out a pretty clear and compelling reason why this happens so often.  It starts off with good intentions.  Judge Rakoff explains that our desire to crack down on crime and be consistent with sentencing led to the creation of the Sentencing Guidelines, which mandate a specific amount of jail time for a conviction.  However, that change inadvertently led to prosecutors gaining quite a bit of leverage for plea negotiations.  It is common for an unrepresented defendant to feel that the best option is to plead guilty to a lesser crime and receive only a short prison sentence so as to avoid being convicted of a more serious crime, which carries a much longer prison sentence. 

Good intentions seem to play a part in explaining how those responsible for some of the more egregious crimes, such as the people who worked for the banks and perpetuated mortgage fraud in the early 2000s, never got near a courtroom, much less a prison cell.  The DOJ, tasked with investigating and prosecuting this large-scale fraud, decided that it would be too difficult to prove that the high-level executives intended to commit these criminal acts.  Moreover, the DOJ also believed that even if they were successful at prosecuting these large banking institutions, the disruption to the business would have a detrimental effect on the economy, an effect worse than the crimes allegedly done.

The result was that the very largest institutions, banks and corporations, were fined and tasked with self-policing to prevent future criminal acts (rehabilitation as it were), all with the hope that the criminal activity would stop.  The hope was that a better, more ethical culture within the corporation could grow and replace one that was corrupt.  Meanwhile, the individuals responsible for the fraud were never punished.

Other chapters in the books discuss the procedures and processes we have implemented to be better: to rely on scientific methods, even if they might be faulty; to find ways to be more efficient; to focus on catching and prosecuting terrorists.  The unexpected result is that we have slowly eroded away the protections for defendants so carefully laid out in the Constitution. 

The last chapter of the book, ominously titled, “You won’t get your day in court,” outlines the many ways low and middle-income people are frozen out of a fair judicial resolution of their case.  The biggest cause is the expense of a hiring a lawyer. The average person can’t pay for an attorney. Many attorneys won’t take cases on contingency because the payout would be too low to be worthwhile.  Other examples include forced arbitration clauses, or settlement agreements.  The result is that for citizens, “the courts are not an institution to which they can turn for justice, but simply a remote and expensive luxury reserved for the rich and powerful.”

The judge’s frustration is clearly displayed throughout the book, and he concludes that change should come from the legislature. He speculated that might be difficult to do, since most legislators are reluctant to make changes that are seen as “soft on crime.”  Nevertheless, he remains hopeful.  Recently, Congress was pressed by voters to pass the First Step Act, which lowered mandatory minimum sentences on some drug crimes.  He remains cautiously optimistic that American voters will once again rise to the challenge and make other fixes to our legal system.

Jed S. Rakoff, Why the Innocent Plead Guilty and the Guilty Go Free and Other Paradoxes of Our Broken Legal System. New York: Farrar, Strauss and Giroux, 2021.


Here’s an update about a couple of core legal resources that all attorneys used in law school.  They are the Restatements of the Law and the Uniform System of Citation, (the Bluebook). These long-established titles have undergone some changes in the past few years.  Regarding the Restatements, the new publishing plan has caused the law library to rethink where the materials should be placed in the collection.

Published by the American Law Institute (ALI), the Restatements of the Law include many titles and their respective supplements, appendices, and numbered new versions.  Various titles cover major areas of law such as contracts, torts, property, judgments, conflict of laws, and others.  ALI began the system in 1923 to issue “restatements” that would promulgate one highly authoritative source stating the common law, with rule-like content and explanatory material.  In recent years, they devised a new numbering system in 2014, and they converted their more specialized “Principles of the Law” series to Restatements in 2015.  The narrower topics appear in more recent restatement titles which reflect ALI’s decision to publish new titles without any numbers.

It’s possible that only a law librarian would savor delving into the details about the changes.  However, our users should know that we’ve departed from our customary scheme of placing all the Restatements in one section of the library.  Our new scheme involves keeping the older Restatements, with their broad subject coverage, in the north reading room where they’ve always been.  The newer, more specialized, topical restatements are dispersed into the collection where similar subject matter is located.  That way, users who are browsing an area (i.e. employment law) will find that a restatement was published for the topic.  The law library continues to acquire the Restatements in print, and they are also available on our Westlaw service.

A new edition of the Uniform System of Citation (aka the Bluebook) is published about every five years.  The library has the current and several previous print editions.  The Bluebook is a combined effort of law review editors at four law schools–Yale, Columbia, University of Pennsylvania, and Harvard.  The 21st edition came out in 2020 and is noticeably smaller than its recent predecessors.  The decrease in size is due the elimination of Table T2, which accompanies Rule 20 on “Foreign Materials,” from the print version.  Table T2 is now online only.

The Bluebook not only describes how to cite to various electronic resources, but it is itself available in electronic format and includes access on mobile devices.  There is a cost for the online version.  The Bluebook editors would like feedback from attorneys and judges and comments can be sent to editor@legalbluebook.com.

For those who would like a very condensed overview of the new Bluebook, the law library also has the User’s Guide to the Bluebook: Revised for the twenty-first edition, by Alan L. Dworsky.


Are We More than the Sum of Our Parts?

Heather McGhee’s recent book, The Sum of Us: What Racism Costs Everyone and How We Can Prosper Together, dispels the myth that righting the wrongs caused by institutional racism and discrimination is a zero-sum game, that is, what is good for someone else, is bad for me.  Instead, she illustrates many times over how discriminatory policies not only hurt and diminish the target group, but she also writes how these bad policies and practices hurt the community as a whole. 

The book covers many historical and current instances of laws that are aimed at Black people or other minorities.  Each event was followed by how other people, usually poor, White people, are also adversely affected.  For example, just after the Civil War, a critic of slavery named Hinton Rowan Helper wrote a book that asserted that slavery impeded the economic growth of non-slaveholders in the South.  Slavery, which enriched a few, politically powerful landowners, meant that there was little investment in public benefits like schools, libraries, and similar institutions.  His research found that states in the North, such as Maine, had 236 public libraries, while Georgia in the South, had only 38 public libraries.  Similarly, the small state of New Hampshire had over 2300 public schools; Mississippi had only 782.  The net result was that economy in the North was growing, but in the South, the economy was stagnant.  The lack of investment in these public amenities not only hurt the suddenly free but extremely poor ex-slaves but also poor White people as well.

In more recent times, McGhee recalls a case from 1971, Palmer v. Thompson, where the U.S. Supreme Court decided that closing the public swimming pool rather than operating a racially integrated pool did not deprive Black citizens equal protection under the law.  The Court’s reasoning was that Black residents did not suffer any discrimination because they were not singled out by not having access to public pools – White residents were equally deprived.  No pools for anyone. 

There was much resistance in trying to rectify these inequities, because opponents persuaded the public that reforms that gave benefits and resources to one group meant that there were fewer resources for everyone else – that is, they would suffer while others would prosper.  And that did not seem fair.

So how does McGhee propose we move forward?  Her theory is that solidarity is the answer.  In the chapter where she talks about unions, she describes the history of one of the first labor unions, the Knights of Labor.  Their working theory was to include everyone, no matter one’s race, ethnicity, or gender.  All were welcome to join.  They believed that if everyone united behind a single cause, say, an eight-hour workday, or limits on child labor, then management could not use one group of people against the other.  And for a while, that worked.  Many benefits workers receive today are due to the work on unions. 

But as union membership decreased, so did their power.  To illustrate this point, McGhee describes the attempt at starting a union at a Nissan plant in Mississippi that failed.  While many workers wanted the protections from a union, enough people in management, people with longevity with the company, or people who had a chance at upward mobility at the company viewed the start of a union as a threat, and they managed to thwart the creation of the union. 

In the last chapter of the book, she describes the revival of a town in Maine, which was in danger of withering away after the textile industry slowly closed down.  In the late 1990s an influx of Somali immigrants helped revive the economy.  Despite some ugly protesting by White Supremacists, the community, a mixture of long-time White residents and newer immigrants, thrived.  In fact, the combined African immigrant population in the state added over $190 million in state revenue through taxes in 2018.

McGhee concludes her book with these inspirational words:

Since this country’s founding, we have not allowed our diversity to be our superpower, and the result is that the United States is not more than the sum of its disparate parts.  But it could be.  And if it were, all of us would prosper.  In short, we must emerge from this crisis in our republic with a new birth of freedom, rooted in the knowledge that we are so much more when the “We” in the “We the People” is not some of us, but all of us.  We are greater than, and greater for, the sum of us.