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Recent Publications — January 2016

THE LAW OF THE LAND: A GRAND TOUR OF OUR CONSTITUTIONAL REPUBLIC. By Akhil Reed Amar. New York, N.Y.: Basic Books. 2015. Pp. xii, 357. $29.99. The third book in Professor Akhil Reed Amar’s sweeping yet still-developing series on the American constitutional project, The Law of the Land examines the Constitution from the perspective of various states. Each of the book’s twelve chapters tells a particular story intimately connected with a specific state, ultimately forming a mosaic that spans every major region of the republic. Amar’s twelve essays cover as much intellectual ground as they do geographic ground: divided into three parts, the chapters explore a diverse collection of constitutional interpreters, cases, and principles from every era of the Unites States’s history. Amar’s tour through states’ legal landscapes illustrates how their status as “territorial units, defined by their unique geographic features” (p. 267), helped form fundamental constitutional principles, and how regional perspectives on law and justice have continued to reshaped these principles — and the nation as a whole — throughout history. In this way, The Law of the Land complements perfectly the textual and interpretive per-spectives on the Constitution offered in Amar’s previous works, helping collectively to provide a comprehensive overview of our country’s founding document.

THE SAFEGUARD OF LIBERTY AND PROPERTY: THE SUPREME COURT, KELO V. NEW LONDON, AND THE TAKINGS CLAUSE. By Guy F. Burnett. New York, N.Y.: Lexington Books. 2015 Pp. vii, 167. $80.00. In this in-depth examination of Kelo v. New London, 545 U.S. 469 (2005), Professor Guy F. Burnett provides an interesting, well-written illustration of Supreme Court commentator Jeb Rubenfeld’s claim that takings law (along with the right to privacy) is the area of constitutional doctrine most in need of a principle. Burnett’s analysis begins by laying out the facts — including a detailed description of New London’s development plans and of the plaintiff whose name swept headlines in the wake of the Supreme Court’s unpopular decision. After analyzing the constitutional questions raised in state-court opinions, Burnett devotes a chapter to each of the four Supreme Court opinions in Kelo — including the majority opinion, which Justice Stevens recognized as his most unpopular opinion. The Safeguard of Liberty and Property excels in its thought-provoking and thorough comparison of these opinions. This case study concludes by examining reactions to the Court’s decision, and raises important questions about the case’s legacy, constitutional interpretation, and the popular perception of property law in the modern United States.

DO GUNS MAKE US FREE?: DEMOCRACY AND THE ARMED SOCIETY. By Firmin DeBrabander. New Haven, Conn.: Yale University Press. 2015. Pp. xix, 274. $30.00. After the Sandy Hook mass shooting left twenty-six dead in December of 2012, gun-control advocates, including President Obama in his 2013 State of the Union Address, thought that the time had finally come for stronger gun control regulations. It had not. Do Guns Make Us Free? is a timely examination of the politics of the pro-gun movement and our gun culture.

Rather than critiquing the constitutional arguments for gun ownership or marshaling shocking statistics to demonstrate the dangers of American gun ownership, DeBrabander takes a different tack. The book argues that rather than enhancing freedom, as so many advocates claim, guns instead make us less free. Our gun culture, rather than promoting individual rights, instead tramples over them roughshod. DeBrabander addresses the arguments ad-vanced by pro-gun advocates and rebuts them, focusing in turn on the relationship between guns and fear, guns and the risk of government tyranny, and ultimately, guns and democracy. This sharply written book challenges prevailing arguments about the relationship between guns and freedom, answering its titular inquiry — Do Guns Make Us Free? — with a resounding “no.”

WHAT’S WRONG WITH COPYING? By Abraham Drassinower. Cambridge, Mass.: Harvard University Press. 2015. Pp. xi, 272. $39.95. Copyright law is often conceptualized as an economic balancing between incentivizing authorship and the dissemination of ideas. But in What’s Wrong with Copying?, Professor Abraham Drassinower challenges this common view as an insufficient external justification that fails to account for the most basic and intuitive pillars of copyright except as the happenstance of a cost-benefit calculation. Drassinower offers a theory of copyright on its own terms. His central proposition is that an author’s work, insofar as we should and do seek to protect it through copyright, is a communicative act. Properly understood, unlawful copying is wrongful to the author because it disposes of her speech without her authorization. What follows from this understanding is that the protections afforded by copyright must be consistent with the communicative rights of others and must be limited to communicative uses of the author’s work, making lawful copying as much an intrinsic part of copyright theory as unlawful copying. Drawing on philosophy, psychology, and literature, Drassinower’s illuminating and provocative book offers fresh insights into — and suggests important limitations for — such copyright mainstays as originality, the idea/expression dichotomy, fair use, and the public domain.