Ramsey County Law Library Blog

We would like to end 2021 on an uplifting note.  The Hill We Climb is a poem composed and read by Amanda Gorman at the inauguration of President Biden on January 20, 2021.  As she stood before the audience, she was a shining sun in a bright golden-yellow coat – a sun amongst the more soberly dressed crowd (except for Bernie Sanders’ mittens).  And then she read her poem aloud.

Reading her poem in print is no less electrifying than hearing the spoken words.  The words look like prose until you hear the words in your head as you read to yourself, and you find the hidden couplets in thought and rhyme. 

It may be trite to say that a poem is poetic, but how else can one describe this verse, which catches both the eyes and ears of the listener?

We’ve braved the belly of the beast.

We’ve learned that quiet isn’t always peace,

And the norms and notions of what “just is”

Isn’t always justice.

The poem encourages us to keep going, keep trying, because the mistakes of the past do not define us.  Instead, we can choose to begin a new chapter for our nation.  She told the New York Times, that she wants her words to, “envision a way in which the county can still come together and can still heal.”  Her final message is that if we want a better nation, then we must earn it.  

The new dawn blooms as we free it,

For there is always light,

If only we’re brave enough to see it,

If only we’re brave enough to be it.

Amanda Gorman, The Hill We Climb, an Inaugural Poem for the Country.  New York, NY: Viking, 2021

Amy Klobuchar, Antitrust: Taking on Monopoly Power from the Gilded Age to the Digital Age.  New York: Alfred A. Knopf, 2021.

Senator Amy Klobuchar has written a definitive, modern-day treatise on antitrust law.  Not only does Klobuchar describe riveting instances of monopolistic abuse, but she also provides a scholarly and well-documented history of antitrust action “(and inaction)” in the courts and Congress.  As the head of the Senate’s antitrust subcommittee, Klobuchar is vitally interested in the topic and has proposed legislation directed at big tech and big business combinations (the “BIG”).  By reining in BIG corporate power, Klobuchar seeks to strengthen competition, the Sherman Act, and, ultimately, workers’ wages.

In her introduction, Klobuchar describes a medical event that arose in a Minnesota children’s hospital regarding a drug used to treat newborn infants with heart defects.  The cost of the drug had increased twenty times its original cost, creating an exorbitant burden for both families and hospitals.  A cause for the spike in price, Klobuchar recounts, was the ability of the drug manufacturer to buy up its competition and create a monopoly on a critical heart valve drug for newborns.  According to Klobuchar, “our current antitrust laws, at least as applied by the federal courts, were unable to check them.”  In a subsequent statement, Klobuchar explains: “That’s why I have written this book.” (p. 9)

While a compelling overview about antitrust may seem a challenging and daunting endeavor, Klobuchar doesn’t shrink from the task and produces a 100-year history on the topic that offers a legal overview with specific cases arising from corporate America.  She cites the Standard Oil Trust case as well as examples from Minnesota such as James J. Hill, the American railroad titan who consolidated multiple railroads across the country.  Starting in the late 1800s, Congress enacted legislation to create competition, such as the Sherman Act (which prohibits agreements unreasonably restraining competition and monopolization), the Clayton Act (which prohibits all types of acquisitions that may substantially lessen competition), the Robinson-Patman Act (which prohibits certain discriminations in pricing and services), and the Federal Trade Commission Act (which prohibits unfair methods of competition).  These statutes are enforced by the Antitrust Division of the United States Department of Justice, the Federal Trade Commission, state attorneys general, and private parties injured by antitrust violations.

Yet, according to Klobuchar, historic attempts to control anti-competition consolidation have met with federal court exemptions, political reframing of the need for antitrust regulation, and the growth of current corporate giants such as Amazon, Apple, Facebook, and Google.  In her final two chapters, she defines a detailed action plan to reinvigorate antitrust policy.  A major strategy involves creation of legislation that updates the nation’s antitrust laws.  However, she concludes that antitrust policy impacts everyone and is “a topic that can no longer be relegated to the realm of law schools and antitrust agencies; more citizens must start voicing their concerns about BIG to their elected officials so that those officials take it much more seriously.” (p. 354) Klobuchar’s book is a great first step in gaining a decisive perspective on the harms of monopolies and consolidated corporate power.

The law library has additional practitioner treatises on antitrust law.  They include Callmann on Unfair Competition, Trademark and Monopolies, Kintner’s Federal Antitrust Law, and Antitrust Basics. Titles also available on Westlaw include Antitrust Adviser, Corporate Counsel’s Antitrust Deskbook, Corporate Counsel’s Guide to Unfair Competition, Health Care & Antitrust Law, and many other titles.

Rosa Brooks, Tangled Up in Blue: Policing the American City. New York: Penguin Press, 2021.

While Tangled Up in Blue is not an academic work, author Rosa Brooks explains that her use of participant observation is a valid research methodology that provides a close-up perspective on urban policing.  Brooks learned this methodology firsthand. She’s the daughter of Barbara Ehrenreich of Nickel and Dimed fame.  While Brooks dedicates the book to her political activist mother, she also cites the mother-daughter conflicts that accompanied Brooks’ transition from Georgetown law professor to part-time reserve officer with the Washington, D.C. Metropolitan Police Department (MPD).  Written after the George Floyd killing, Brooks’ book gives a personalized account of her own messy, complicated experiences that come from patrolling the very poorest sections of D.C.  As for the books’ title, “Tangled Up in Blue” comes from a Bob Dylan song released in 1975.

Brooks graduated from the police academy as a reserve officer in 2016.  She highlights this experience by stating that “The chief lesson learned at the academy was this:  Anyone can kill you at any time.” (p.79) She further describes the academy as a place where students had a great deal and even obsessive exposure to dangerous scenarios through instructional videos and lectures as well as physical training in defensive tactics. Brooks, who reports that the academy taught the thousands of ways that cops could be hurt or killed, leaves the reader with the impression that police training creates a cadre of hypersensitized, new officers who are hypervigilant about letting their guard down. 

In the section of the book titled “The Street,” Brooks describes the wide variety of situations she’s encountered as a new reserve patrol officer in the 7th District MPD.  This impoverished area of the city breeds domestic abuse and family disturbances, assaults, missing children, and mental and medical health related issues.  Brooks offers her personal stories of life as a patrol officer and the individuals she’s connected with—her text gives a firsthand view of their “unvarnished lives.”  She sees into their humanity as “angry people, weeping people, frightened and hurt people.”  (p.255) It’s in this section of the book that the reader gets the most insight into the world of policing in D.C.

In the chapter “Baked Into the System,” Brooks addresses the criminal justice system and the racial disparities that stem from poverty as well as race.  The author states that “this is why racism seems like a nonissue to many street cops; it’s baked so deeply into the system that it’s invisible.” (p. 272)  When she attempts to offer an academic and sociological perspective to her police colleagues, she initiates a clash of two worlds when they react to her insights with disinterest or derision. 

As for Brooks’ earlier description of life in the academy and its obsession with survival, she later struggles with this concept after months of actively working the streets of D.C.  She confides, in contrast to her expectations from her training, that she found policing not to be that violent.  Brooks concludes with a question: “What if instead of telling officers they have a right to go home safe, police training focused instead on reminding officers that members of the public have a right to go home safe?” (p 319)

With regard to policing, Rosa Brooks offers an inside view that is palpable and informative.  Her book represents a well-rounded effort at immersive journalism.  The book is available for loan from the Ramsey County Law Library.

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.

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[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).

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:

Event	1930s	2020
National Emergency	The Great Depression	The Global Pandemic
Federal Legislative Initiative	The New Deal	Build Back Better
State Legislative Initiatives	The Mortgage Moratorium	Mortgage/Eviction Moratorium
Supreme Court Split Decisions	Chief Justice in flux	Chief 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.

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. 

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.” 

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 13^th, 14^th, and 15^th 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 14^th 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 15^th 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.