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Recent Publications – May 2015

Hate Crimes in Cyberspace. By Danielle Keats Citron. Cambridge, Mass.: Harvard University Press. 2014. Pp. 343. $29.95. Hate Crimes in Cyberspace elucidates why the stalking and harassment that occurs over the Internet is qualitatively different from what happens in life offline and offers thoughtful prescriptions on how to reform the legal system to better protect victims of such misconduct. Professor Danielle Keats Citron begins by demonstrating how cyber harassment differs from the offline variety in its effects on victims. The Internet allows people to behave in a more polarized fashion than they could offline, and search engines give harassment and untrue content lives of their own beyond a victim’s control. After painting this picture of online turpitude, Professor Citron presents a multipronged proposal for updating a broad spectrum of laws to combat this problem. For example, specific new criminal statutes should be drafted to address the problem of revenge porn, which can slip through cracks in current law. Another one of Professor Citron’s proposals is to encourage the use of pseudonymous litigation in order to increase access to the court system for victims, while not raising the profile of their online harassment any further. Professor Citron’s exhaustive treatment of the problem of hate on the Internet promises to be a touchstone for reform.


Covering the United States Supreme Court in the Digital Age. Edited By Richard Davis. New York, N.Y.: Cambridge University Press. 2014. Pp. xi, 269. $99.00. The Supreme Court is in many respects the antithesis of what a modern journalist hopes to see in a government institution: electronics are often forbidden, off-the-record interviews and leaks are nearly nonexistent, and the material is arcane. Yet by virtue of the Court’s great importance in American law and life, the press corps is driven to report on the happenings at One First Street. Professor Richard Davis’s volume provides insights from both scholars and journalists on the multifaceted relationship between the Court and the media. The book examines various Justices’ individual relations with the press throughout their lives, ranging from relatively innocuous book tours to more stormy encounters bordering on blows. In other chapters, the coverage of the Court is examined, both in how the Court can focus the media’s (and thereby the public’s) attention on a topic and, conversely, in how the media can control how Americans receive the Court’s message. In an age of 140-character news stories and ever-faster delivery of the latest scoop, Professor Davis’s compendium provides fascinating analysis of how new media and the Supreme Court can be expected to interact in the future.


American Justice 2014: Nine Clashing Visions on the Supreme Court. By Garrett Epps. Philadelphia, Pa.: University of Pennsylvania Press. 2014. Pp. x, 177. $16.95. The Supreme Court is composed of individuals, and thus understanding the Supreme Court requires understanding its nine members. In American Justice 2014, Professor Garrett Epps paints a portrait of each Justice, and the Court as a whole, through the lens of the 2013 Term. By examining one opinion written by each Justice during the most recent Term (except for Justice Scalia’s opinion in United States v. Windsor) with biographical anecdotes, personal observations, and legal analysis, Professor Epps presents both a concise summary of the Term’s most important cases and a close look at each Justice’s background and worldview. These individual perspectives reveal that justice in the nation’s highest court has ultimately become “red and blue” (p. 145), where, “for perhaps the first time ever” (p. 147), party identity appears to be the foremost determinant of how the Justices vote. While writing for a broad audience, Professor Epps’s deep insight and engaging style create a captivating narrative of the personalities behind the Supreme Court’s decisions even for those who are already familiar with the 2013 Term.


Restitution: Civil Liability for Unjust Enrichment. By Ward Farnsworth. Chicago, Ill.: University of Chicago Press. 2014. Pp. ix, 178. $25.00. Whereas tort law is commonly described as seeking to remedy the losses suffered by one person because of another’s conduct, the law of restitution distinguishes itself as addressing the gains a person makes at another’s expense. Professor Ward Farnsworth uses the intersections between tort and contract as a starting point in drawing out the doctrine of civil liability for unjust enrichment. With illustrative hypotheticals, discussion of case law, and integration of prior scholarship, Professor Farnsworth builds a comprehensive and illuminating approach to the doctrinal contours of restitution. For example, in taking up mistaken payments, Professor Farnsworth frames the “puzzle” as in part economic and interrogates the idea that “the actual cost to the world of a mistaken payment — the social cost of it — may bear no relationship to how large a payment it was” (p. 15). Later, Professor Farnsworth explores the complexities of remedies in restitution suits, such as “the right to take back specific property from the defendant” (p. 104). Grappling with restitution’s puzzles and discussing ways in which a plaintiff might successfully bring a restitution claim and obtain a remedy, Professor Farnsworth examines and further develops the doctrine of restitution.


Checking the Courts: Law, Ideology, and Contingent Discretion. By Kirk A. Randazzo and Richard W. Waterman. Albany, N.Y.: State University of New York Press. 2014. Pp. xii, 203. $80.00. In the United States, two institutions have overlapping power to say what the law is: the legislature, by writing statutes, and the courts, by interpreting them. Checking the Courts undertakes an ambitious empirical study of the interplay between the interpretive discretion Congress leaves in its statutes and the extent to which judges interpret statutes based on ideology rather than the plain meaning of the text. Positing that judges will interpret a law in line with their ideological preferences contingent on the level of discretion the statute permits, Professors Kirk A. Randazzo and Richard W. Waterman outline a model that uses statute length as a proxy for the degree of detail provided by legislatures. After testing the model against a sizeable dataset gleaned from federal and state appellate courts, the authors confirm their hypothesis and reach intriguing secondary results along the way. Checking the Courts presents a way of conceptualizing how both the expressed preferences of lawmakers and a judge’s own ideology influence judicial behavior, an idea that will interest any student of the judiciary.