Recent Publications

Harvard Law Review, June 2010 | Go to article overview

Recent Publications

INVISIBLE HANDS, INVISIBLE OBJECTIVES: BRINGING WORKPLACE LAW & PUBLIC POLICY INTO FOCUS. By Stephen F. Befort & John W. Budd. Stanford, Calif.: Stanford University Press. 2009. Pp. xviii, 308. $32.95. Contemporary American workplace law is a patchwork of rules and standards with conflicting premises and objectives, many of which are based on unspoken assumptions. In Invisible Hands, Invisible Objectives, Professors Stephen F. Befort and John W. Budd argue that making these assumptions explicit will facilitate efforts to understand, analyze, study, and reform workplace law. The authors propose frameworks for discussing the objectives and models of workplace law and public policy, using these frameworks to create a scorecard for evaluating the current state of American workplace law. They also make the normative argument that "employment systems in practice must move beyond today's focus on productivity, competitiveness, and the effective use of scarce resources" and "must promote employment with a human face" (p. 118). Along these lines, Professors Befort and Budd offer specific policy recommendations that would balance workplace law and public policy's three objectives--efficiency, equity, and voice. Even if the reader does not finally agree with the book's recommendations for reform, he or she will no doubt find use in the author's clear and open discussion of what is often left unsaid about the goals and models of workplace law.

BAD ADVICE: BUSH'S LAWYERS IN THE WAR ON TERROR. By Harold H. Bruff. Lawrence, Kan.: University Press of Kansas. 2009. Pp. vii, 403. $34.95. The Bush Administration's "War on Terror" raised cloudy questions about the legal parameters of executive power. In his assertive new book, Professor Harold Bruff explores the duty of legal advisers to "bind[] presidents to the dictates of right and conscience" (p. 60) and the failure of the Bush Administration's lawyers to fulfill this vital role. After opening with an overview of the historical successes and failures of executive advisers, Professor Bruff turns to a critical analysis of the legal opinions underlying the war on terrorism. He argues that a "reliable flow of supportive advice" (p. 120) to a perilously aggressive executive branch neglected "to ensure that the laws be not silent but heard" (p. 129). Developing case studies of National Security Agency surveillance, the detention and trial of enemy combatants, and the interrogation of terrorist suspects, he concludes that the Administration's strained legal justifications for evading checks on executive power led not only to poor decisions, but also to counterproductive ones. This thoughtful book formulates an honest set of recommendations for future executive advisers and for the institutions that might oversee them.

JUSTICE KENNEDY'S JURISPRUDENCE: THE FULL AND NECESSARY MEANING OF LIBERTY. By Frank J. Colucci. Lawrence, Kan.: University Press of Kansas. 2009. Pp. xi, 243. $34.95. Justice Anthony M. Kennedy is often viewed as a legal pragmatist or centrist. In Justice Kennedy's Jurisprudence, Professor Frank Colucci examines the Justice's collected writings and speeches and finds a coherent judicial philosophy centered on a deep moral commitment to an "individualistic conception of human dignity" (p. 170). This philosophy, Professor Colucci notes, differs from the views of other liberty-minded jurists such as Justice William J. Brennan, Jr., insofar as it does not rest on broad notions of egalitarianism. Professor Colucci explores how this conception of liberty is manifest in a wide range of opinions, touching upon issues such as abortion, separation of powers, and free speech. In discussing Justice Kennedy's abortion jurisprudence, for example, Professor Colucci finds the Justice struggling with "his moral opposition to abortion within the larger moral conception of liberty that characterizes his jurisprudence" (pp. 71-72). By focusing on Justice Kennedy's language and reasoning, as opposed to merely analyzing his voting patterns, Professor Colucci provides valuable insight into the philosophy of one of the most influential jurists of our time. …

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