Recommending Books for Purchase (Bulletin 8 - January 2018) - Choice Review: Law

Spitko (Santa Clara Univ.) offers a remarkable book about why certain “role-model” occupations—professions frequently viewed as admirable, prestigious, and fundamental to society—systemically restrict access by lesbians and gays. Spitko focuses on occupations such as law, the military, education, public office, professional athletics, and religion and identifies key assumptions that prohibit lesbians and gays from participating and excelling in these occupations, e.g., the assumption that lesbians and gays will disrupt workplace relationships and military unit cohesion or, if serving as judges, will not be able to provide impartial legal rulings about sexual orientation (a heterosexual judge’s heterosexuality is often considered irrelevant) or the fear that lesbian and gay primary and secondary school teachers have direct access to vulnerable and impressionable youth (and may convince children that homosexuality is OK). Throughout, Spitko argues that restricting lesbians and gays from these occupations reinforces the perception that lesbians and gays are inferior to heterosexuals, contributes to hostile understandings of homosexuality, and demonstrates the need for a federal statute that prohibits employment discrimination based on sexual orientation.

This very enigmatic title refers specifically to the dissolution of US banking giants as an appropriate penalty for their perpetration of fraud on the US public. The authors, law professors, indict the US government for not indicting the US megabanks and their senior executives, who have never been prosecuted for their role in the global financial crisis of 2007/2008. They are careful not to claim that fraud has occurred, because none of the potential violators have been brought to trial. But that is their very concern. In detailing the cases of Countrywide Financial, AIG Financial Products Group, JP Morgan Chase, and Goldman, Sachs, among others, Ramirez and Ramirez find ample evidence to proceed with criminal indictments. They suggest that the government’s reluctance even to prosecute stems from the existence of a government-financial industry complex that protects the megabankers and their institutions. Similar concerns but different explanations may be found in Judge Jed S. Rakoff, “The Financial Crisis: Why Have No High-Level Executives Been Prosecuted?” The New York Review of Books (January 9, 2014); Matt Taibbi, “Why Isn’t Wall Street in Jail?” Rolling Stone (March 3, 2011), and PBS Frontline, "The Untouchables."

The emphasis of this edited volume is on specific laws and judicial decisions regarding antitrust issues. In a book looking to the challenges of privatization, new public management, and public-private partnerships, there are features worth noting: the chapters are free standing, so taking full advantage of a chapter does not require reading any other chapter; also, most of the chapters deal with very specific topics (e.g., public-private infrastructure partnerships; court decisions). Various chapters provide case studies of national experiences, which are useful. In addition, the volume examines one of the most highly controversial policy issues within the competition and regulatory sphere--the role of competition law in the financial sector. However, this is not a book for those not already versed in antitrust theory, and several chapters feature naïve statements, such as “One of the main characteristics of bureaucracy is a separation from politics and ideology," and "... even when an existing regulation was introduced to address a different type of market failure that competition law does not adequately cover." As antitrust veterans know, such laws usually come about not to eliminate “market failure," but rather as the result of lobbying by special interest groups interested in government protections from competition.

Carnes (government, Georgetown Univ.) undertakes an ambitious exploration of Latin America’s labor laws over the past several decades. Utilizing cross-national data from 18 major Latin American economies, the author presents qualitative and quantitative analyses that conclude that two factors—labor’s organizational capabilities and the distribution of worker skills—determine the extent of labor reforms adopted by Latin American countries. The book includes three case studies (Peru, Chile, and Argentina) that offer readers historical and theoretical perspectives on the variations in labor laws across Latin America. Carnes’s conclusions can be summarized as follows: first, there is significant variation in the extent to which countries have embraced labor reforms in the face of liberalized global economic relations; second, Latin American labor regulation in general has not been restructured to the extent or in the manner one would expect given the transition to a global economic order. Though Carnes finds the failure to restructure surprising, this result is consistent with analyses made by earlier scholars of the Latin American labor movement, notably Ruth Berins Collier and David Collier in their book, Shaping the Political Arena (CH, May'92, 29-5337).

Buying a hard copy of a book has different implications for the ability to lend or resell, or even for duration of use, than buying an e-book or kindle version. The conversation a four-year-old has with a listening Barbie Doll is subject to digital rights claims by the manufacturer. Perzanowski (Case Western Law School) and Schultz (New York Univ. School of Law) consider legal and policy ramifications of the proliferation of the digital economy as suggested by these examples. The domain of this economy ranges from markets in digital music to that of physical objects such as cars, garage door openers, and even pacemakers currently subject to digital control. The book advocates concerns for consumer rights and access in the digital economy, and is grounded in the authors’ experiences as legal experts in digital rights cases. It is not a rant but develops a coherent argument convincingly supported throughout by compelling examples; it is engaging yet thorough while avoiding either legal or technological complexities. The authors conclude that the concept of ownership should be preserved even if some aspects of that concept will inevitably continue to evolve.

In undergraduate classes, students often turn discussions of mass media to sports and celebrities, subjects all students know, and often know better than any other subject. This observation alone makes the topic of this book a worthy one. Fields takes the reader on a tour of lawsuits on the subject, all of which concern rights of publicity as they evolved from rights of privacy. She profiles six cases that together show that the legal picture regarding a celebrity’s right to control his or her image is muddy. This might be unsatisfying for an undergraduate seeking clear answers about who can do what when, but it ensures that there will be plenty of lawsuits (and scholarship) to come. Fields’s effort is characterized by entertaining biographical vignettes and background stories, almost in the style of sports writing, followed by description of the legal cases and outcomes. At the end of the book, she almost teases the reader when she says that were she writing a law-review article, she would offer her own opinion. This reader thinks such analysis would have been a welcome addition to the book.

McGinley (Univ. of Nevada) examines employment discrimination cases from a social science perspective, specifically multidimensional masculinities theory. She illustrates how the use of this complex approach to encompass multiple aspects of identity could allow courts to investigate cases “because of sex,” according to Title VII law. Multiple relevant court cases are evaluated to reflect how courts struggle with issues such as establishing “disparate treatment” versus “disparate impact” of discrimination experienced by plaintiffs. Through extensive analysis of how gender functions in different job environments and application of the theory to actual court cases, McGinley calls for the use of social scientists’ expert testimony (whether “pure” or “applied”) to help judges and juries question “common sense” approaches to gender discrimination in the workplace. This book could be incorporated into upper-level undergraduate and graduate courses in criminal justice, sociology, women’s studies, and psychology. It could also contribute to research and faculty collections. Because of Race (CH, Mar'09, 46-3975) would pair well with this book to offer another perspective of how school-based discrimination cases have been negotiated in the US Department of Education's Office of Civil Rights.

The Microsoft Corporation has been subjected to various antitrust investigations and litigation for over two decades. Utilizing this history as an extended case study, Gavil (Harvard Law) and First (New York Univ. School of Law) provide a comprehensive account of the Microsoft antitrust experience as a means of evaluating the effectiveness of competition laws and enforcement efforts. This insightful analysis is both an excellent introduction to the complexities of antitrust law and a thoughtful discussion of the ideological disagreements involving competition policy. The concluding chapter, addressing lessons from the Microsoft cases, is especially compelling. Questions addressed include whether the enforcement institutions were adequate, the legal doctrines worked, the remedies were appropriate, and, most significantly, whether the decades of antitrust enforcement dulled Microsoft’s innovative edge. The authors counsel that the most important question for competitive policy enforcers in the future will be to determine whether the dominant firm is the purveyor of disruptive innovation or whether its rivals are. Although the text will appeal primarily to those learning, teaching, and enforcing antitrust laws, this is an accessible book for nonlawyers as well.

Most consumers are familiar with mandated disclosure, even if few know it by name. Every time consumers sign an agreement for a credit card or a cell phone contract, or download the newest version of iTunes to their phone or computer, they read and agree to a mandated disclosure. Or, what is more likely, they do not read the disclosure but agree to it anyway. Because consumers continue to overlook mandated disclosures, opting instead to scroll quickly through screen after screen of seemingly irrelevant legalese, this book by Ben-Shahar (Univ. of Chicago) and Schneider (Univ. of Michigan) is especially pertinent. Mandated disclosure does matter, as will attest everyone who has been surprised by mysterious changes to their interest rates, or been made unwitting participants in a Facebook research study. However, as the authors demonstrate, mandated disclosure ultimately fails as a regulatory attempt to level the informational discrepancies that are inherent in many complex purchases. Who understands mandated disclosures? Who uses them to make better choices? This book puts the regulatory problem in human terms.

Progressive unions, both independent and those allied with the Congress of Industrial Organizations (CIO), and carrying with them the radical potential of American liberalism, flourished in the 1930s. By the early 1950s, this movement was for all intents and purposes dead. Scholars have pointed to the rise of domestic anticommunism and the influence of southern conservatives in Congress as key factors in the demise of progressive unions. Using the union organizing drives in the Pacific canneries in the 1930s and 1940s as a case study, Romney (Univ. of Arkansas at Little Rock) argues that the main reason progressive unions were stopped in their tracks was the New Deal state’s focus on legal procedure. The establishment of the National Labor Relations Board (NLRB) put in place a set of legal procedures for dealing with employer refusals to bargain, determination of the appropriate bargaining unit, and competition between rival unions, among other things. Eventually employers and conservatively oriented unions allied with the American Federation of Labor (AFL) and took advantage of the slow pace of decision-making under these procedures to nudge out the more “dangerous” progressive unions. Some progressive unions also contributed to their own downfall by failing to disassociate themselves from communist sympathies.

What do corruption and unaccountability mean in today's world? The subtitle of this book mirrors anthropologist Wedel’s subtitle in her previous work, Shadow Elite: How the World’s New Power Brokers Undermine Democracy, Government, and the Free Market (2009). In a world increasingly dominated by gossip columns and television reality shows, from the New York Post's Page Six to TMZ and tweets, the author’s chapter titles seemingly fit: two of them, “High Priests and the Gospel of Anti-Corruption” and “Spies, Company Men, and the Melded Company-State,” complement book jacket descriptors such as "groundbreaking exposé" and “chilling." With 100 pages of endnotes (but no bibliography) and an index largely composed of a names list, the book resembles more the work of an investigative reporter than that of a scholar. Dramatis personae are the usual suspects: think tanks, retired military, prominent economists and government officials, and talking heads from Wall Street and K Street. For political junkies and those in the Left and Right tails, there will be plenty to like in this book that will confirm their worst fears. Repetitive to a fault, the book is nevertheless engaging—and frightening.