Recent Publication 130 Harv. L. Rev. 2277

Recent Publications — June 2017



The Timeless Lessons for the Issues of Our Era. By Akhil Reed Amar. New York, N.Y.: Basic Books. 2016. Pp. vii, 454. $29.99. Collecting twenty years of articles and essays within a fresh narrative structure, Professor Akhil Reed Amar brings together much of his frequent writing for popular audiences in his new book The Constitution Today. He begins and ends the effort recounting the chaotic first minutes after the Supreme Court decided National Federation of Independent Business v. Sebelius, when network news anchors botched their coverage of the fate of the Affordable Care Act, having failed to understand the alternative methods for preserving the individual mandate presented by the case. Those widespread misunderstandings — despite the importance of the issues that day — frame the book’s exhortation to the profession: be constitutional journalists, not just scholars. Amar’s “overarching mission is, quite simply, to help readers today understand our current Constitution” (p. 6). He starts with the structure of the modern federal government, turns to the role of the Constitution in the culture wars, and then concludes by exploring key constitutional moments in the presidencies of Bill Clinton, George W. Bush, and Barack Obama. Throughout, the blend of Amar’s past and present writings offers compelling arguments on many enduring constitutional questions.

Constitutionalism, Executive Power, and the Spirit of Moderation. Edited by Giorgi Areshidze, Paul O. Carrese, and Suzanna Sherry. Albany, N.Y.: State University of New York Press. 2016. Pp. xvi, 399. $95.00. There are few better ways to celebrate an individual than to contribute to his or her life’s work. In Constitutionalism, Executive Power, and the Spirit of Moderation, Professor Murray P. Dry’s past students do just that, weaving together a masterful collection of essays that “light upon . . . questions of constitutional, legal, and philosophical balance” (pp. 4–5) and channel Dry’s deep commitment to political moderation. The book begins with several essays grappling with the proper role of the courts in our society, touching on topics as varied as judicial activism, legal realism, the “judicialization” of politics, and remedies for constitutional violations. The collection then turns its attention to the executive, with three pieces on the increasing struggle between a Constitution that envisioned coequal branches and a presidency that seems to grow in power with each administration. The collection closes with several contributors opining on our country’s philosophical underpinnings, discussing the ways various philosophers influenced — and continue to influence — our nation’s development. Throughout these essays, the writers’ affection for Dry shines as they pay homage to one of political science’s great thinkers, writers, and teachers.

Waging War: The Clash Between Presidents and Congress, 1776 to ISIS. By David J. Barron. New York, N.Y.: Simon & Schuster. 2016. Pp. xiv, 560. $30.00. Since the start of the Revolutionary War, the United States has grappled with an enduring question: “Who decides how America wages war?” (p. xi). Charting 240 years of American history, Judge Barron shows that Congress has consistently tried to shape the President’s exercise of the nation’s war powers, and presidents, rather than openly defy these restrictions, have generally learned to live with them. Taking readers through interbranch disagreements over conflicts from the Revolution and the War of 1812 through Korea, Vietnam, and Iraq, Barron finds — perhaps contrary to readers’ assumptions — “that for most of our history our presidents have chosen not to assert a sweeping power to run the wars in which they have led the country however they have seen fit” (p. 426). For example, George Washington complied with the order of the Continental Congress not to set fire to New York City; Dwight Eisenhower relied on the secret services to avoid congressional opposition to his Cold War tactics; and Barack Obama accepted the Authorization for Use of Military Force to undergird his operations against ISIS. The story that Judge Barron tells is sure to have continued resonance in the coming years.

Passing Wealth on Death: Will-Substitutes in Comparative Perspective. Edited by Alexandra Braun & Anne Röthel. Portland, Or.: Hart Publishing. 2016. Pp. xix, 381. $136.00. Thanks to the innovations of creative legal minds around the world, a significant amount of wealth transfer now occurs outside the rules of succession. This process is largely accomplished through the use of will-substitutes: legal tools that are “functionally equivalent to wills” (p. 327) but need not submit to the strict laws normally applicable to the transfer of wealth upon death. This category includes mechanisms such as life insurance, retirement plans, and foundations. While this phenomenon has received some attention in the United States and Italy, it has largely flown under the radar elsewhere. In this collection of essays from contributors around the world, Professors Alexandra Braun and Anne Röthel document the proceedings of an international conference in Oxford that shed some light on will-substitutes in other jurisdictions. Part I of their project examines will-substitutes in twelve countries, including Canada, Australia, France, and Germany. Part II then considers how the use of will-substitutes impacts a range of stakeholders, such as business owners, investors, creditors, and family members. In acknowledging and exploring the realities of wealth transfer upon death, Braun and Röthel call upon the international legal community to reconsider the scope of succession laws and whether they are achieving their underlying goals.