This blog provides a space for conversations about articles and ideas found in AALL Spectrum
, the monthly magazine of the American Association of Law Libraries. The previous blog was located at aallspectrum.wordpress.com
3/21/2013 9:47:05 AM
Book Review: More Essential Than Ever: The Fourth Amendment in the Twenty-first Century
Book Review--More Essential Than Ever: The Fourth Amendment in the Twenty-first Century, By Stephen J. Schulhofer. Oxford University Press, 2012. 199 pages, hardcover, $21.95.
The Fourth Amendment to the United States Constitution prohibits unreasonable searches and seizures, requiring a finding of probable cause before a search can take place. The amendment allows for governmental invasion of privacy but it also requires that it be justified and that the government be held accountable for its actions. Seemingly straightforward when originally drafted by our Founding Fathers, technological advances, changes in police work, and threats to national security have had a profound effect on the Court’s Fourth Amendment jurisprudence. In More Essential Than Ever: The Fourth Amendment in the Twenty-first Century, author, Stephen J. Schulhofer, takes the reader through a concise retelling of Fourth Amendment jurisprudence, hoping to reconcile the historically held belief that governmental intrusions into the public’s private matters cannot be allowed in a free society; even when so doing my lead to the increased risk of danger and harm to the public. Accordingly, Mr. Schulhofer argues that the protections provided by the Fourth Amendment as it was originally conceived can be, should be and must be adhered in today’s modern society. A person’s right to privacy and the “right to be secure in their persons, houses, papers, and effects” is that essential to democracy.
After an introduction that outlines the four myths that fuel skepticism about the Fourth Amendment, the author begins, in Chapter Two, by discussing the historical tenets of the Fourth Amendment, outlining the Framers strongly held belief that unconstrained governmental discretion cannot be allowed and that judicial oversight is needed to prevent improper governmental actions. In this chapter, Mr. Schulhofer argues that the present day courts should focus on the principles and values laid out by the Court in early Fourth Amendment jurisprudence when deciding cases, rather than relying on a strict adherence to the specific rules established by the Court’s Fourth Amendment jurisprudence. The author calls this “adaptive originalism.” This concept is explored further in Chapter 3, as well as in the next chapter where he examines the changing nature of everyday police work. In both of these chapters the author discusses the exceptions to the Fourth Amendment that were necessitated by the nature of illegal activity and the need for the police to protect the public from criminal activity while still adhering to the spirit of the Fourth Amendment. The author continues to discuss the need for flexibility in Chapter 5, when he discusses administrative searches, those searches that take place outside the realm of traditional police work. In these special circumstances, for example, searches done to insure public health and safety, the Court has relaxed the traditional warrant and probable cause requirements. Although this allows for flexibility, the author argues that this threatens the traditional notions of privacy requiring the need for governmental accountability and oversight. Again, the author is calling for flexibility while still recognizing the need for actions that promote the Fourth Amendments original ideals.
In Chapter 6, the author examines the privacy implications resulting from the development of modern technologies, including the effect wiretapping, electronic eavesdropping and increased access to personal information has had on our Fourth Amendment jurisprudence. Chapter 7 looks at national security and how the events of 9/11 have affected Fourth Amendment jurisprudence. In this final chapter, Mr. Schulhofer discusses the effect the events of 9/11 had on our Fourth Amendment rights, arguing that the assumption that security and prevention of future tragedies outweighs the protections afforded to us by the Fourth Amendment is misconceived. All decisions have risk and to alienate the millions of law abiding Muslims in the U.S. in order to protect us from the few that mean us harm is more damaging. Governmental transparency and checks on governmental power will generate the societal trust needed to better protect our society from the dangers we now face. In conclusion, Mr. Schulhofer argues in the last chapter that despite the many societal advances and changes the Framers couldn’t possibly have anticipated when the Fourth Amendment was drafted, the notion of individual privacy continues to be the most vital component of individual freedom and democracy, making the protections offered by the Fourth Amendment are vital in today’s society.
More Essential Than Ever: The Fourth Amendment in the Twenty-first Century, is an excellent resource for any undergraduate or academic law library. It is an excellent starting point for students or scholars doing research involving the Fourth Amendment. The author provides the reader with an excellent section of Notes at the end of the book, with citations to relevant cases discussed by the author as well as an excellent index allowing subject entry into the book. Finally, the author also includes a “Further Readings” list with suggestions to other relevant resources. This book provides an excellent history of the Fourth Amendment and convincingly argues for a flexible approach when applying Fourth Amendment protections in today’s increasingly complex society.
Christine I. Hepler is the Interim Director of the Garbrecht Law Library at the University of Maine School of Law.
 U.S. Const. amend. IV.
 These myths revolve around changes in the conception of privacy and how this affects the application of the Fourth Amendment. See pages 6-15 for the author’s detailed discussion on these issues.
 See page 44 for the author’s definition of “adaptive originalism.”
Posted By 3/21/2013 9:47:05 AM
3/20/2013 5:18:36 PM
Book Review: The Mind and Method of the Legal Academic
Smits, Jan M. The Mind and Method of the Legal Academic. Northampton, Mass.: Edward Elgar, 2012. 192p. $110. ISBN: 978-0-85793-654-7.
Law schools have dual and sometimes competing identities. They are striving to both provide professional training to would-be attorneys and produce legal scholarship. Managing this tension between these roles as professional schools and scholarly institutions is a major challenge for legal education. Smits, a law professor in the Netherlands, argues for an independent academic identity for law, or legal science. Smits sees law's claim as an independent academic discipline being challenged.
Smits tries to explain what makes law distinctive a field of academic study. He concludes that law seeks to answer the question, "what ought we to do legally?" Legal studies are inherently normative, and definitive answers are impossible without knowing the jurisdictional and factual context. This means that seeking definite answers about "what the law is" (analogous to what Americans call black-letter law) is less legal scholarship than trade craft.
Smits' question also reflects his view on the nature of law. He rejects both theories of natural law (law exists independently of humans and society) and positive law (law is constructed by society). He views law as the product of natural selection. As traits persist or disappear in species, depending on how well they adapt to the environment, so legal solutions to problems will be adopted or rejected, depending on how well they fit with the circumstances in various jurisdictions.
In Smits's view, legal academics should seek not to find definitive answers to legal questions, but rather articulate and analyze all relevant arguments for deciding how people should behave legally. This open-ended inquiry invites all types of research methods, so no particular methodology should be regarded as intrinsically better than another. Good legal scholarship should be creative and challenge conventional wisdom. While Smits thinks interdisciplinary research should be encouraged, he is concerned that law is limiting itself by focusing on empirical research methods; theoretical and doctrinal methods are also worthwhile.
A professor at Maastricht University, The Netherlands, Smits is mostly thinking of the European legal academy, which is different in some respects from the American legal education system. Law can be studied at the undergraduate level, and research programs are evaluated at both the national and super-national (European Union) levels. American law schools are mentioned a few times, mainly as contrasting examples.
The book has some relevance to American law schools, though, and provides an articulate argument for the value of legal scholarship. Given the pressure on law schools to produce more "practice-ready" graduates, Smits's view of law schools as more of academic institutions than professional training centers will be in the minority for some time.
Overall, the book will fit well in academic collections on legal scholarship or European legal education. Page count should not be a decisive factor for collection development, but at $110 for less than two hundred pages, the book is too expensive for what it offers. The book is not essential for any collection, but it is worth watching for at a lower price.
Benjamin J. Keele, Research and Instructional Services Librarian, Ruth Lilly Law Library, Indiana University Robert H. McKinney School of Law
Posted By 3/20/2013 5:18:36 PM
3/18/2013 1:01:16 AM
Book Review: A Legal Framework for Emerging Business Models: Dynamic Networks as Collaborative Contracts
Book Review: A Legal Framework for Emerging Business Models: Dynamic Networks as Collaborative Contracts. Weitzenboeck, Emily M. Edward Elgar, 2012. Hardcover, ISBN: 978-1-78100-465-4. $145. 363 pages.
The first chapter of Emily M. Weitzenboeck’s treatise A Legal Framework for Emerging Business Models: Dynamic Networks as Collaborative Contracts lays the framework for the chapters that follow, describing dynamic networks, explaining organizational evolution trends, and defining the related terminology. I’d say this is the most important part of the book, as these terms and overall concepts are going to be unfamiliar to most U.S. law students, professors, and practitioners without some serious background in theoretical business studies, with an emphasis on technology and a specific interest in international business.
Dynamic networks are relatively recent organizational forms that include “an increased use of joint ventures, subcontracting and licensing activities,” all of which “can be assembled and reassembled in order to meet complex and changing competitive conditions” (9, quoting a cited 1986 article by Miles and Snow). They all include vertical disaggregation, brokers, market mechanisms, and full-disclosure information systems. In much-needed layman's terms, these are business arrangements in which large firms outsource major aspects of their operations to other companies, which puts them at an advantage in competitive markets with multiple organizations battling it out in the same fields.
Weitzenboeck, a Postdoctoral Scholar at the University of Oslo, Norway, in the Norwegian Research Center for Computers & Law, is obviously an expert in the field, but I found myself struggling with the abstract concepts she presented until she turned to more concrete examples with a series of case studies on dynamic networks in various European nations in Chapter 2.
Chapter 3, “The Precontractual Stage,” refers to United States law for the first time in the book, citing the Uniform Commercial Code, the Restatement of Contracts Second, and even a law review article by the venerable contracts treatise author E.A. Farnsworth, all dealing with the obligation of good faith imposed in the performance of every contract. At that point, I can say I’ve never been so relieved to read some U.S. contract law, after encountering so many unfamiliar jurisdictions and their own unique laws, to say nothing of the high-tech business-speak. The “good faith doctrine” comes up throughout the book, including as the focus of a later chapter, as a common factor in most nations’ versions of contract law.
In the end, despite its discussions of contract law, partnership law, and contractual networks, there are so few relevant United States law examples that the majority of U.S. law libraries would not refer to it much, if at all. A typical academic law library would not find much use for this title, unless the law school had an LLM program or other classes in international business law. Law firms engaged in any sort of international business dealing with contracts, especially in highly technical industries, may find it more relevant for their libraries or offices, as would universities with international business and MBA programs. European law libraries and firms would find Weitzenboeck’s book more useful as well.
Louis Rosen is a Reference Librarian and Assistant Professor of Law Library at Barry University School of Law in Orlando, Florida.
Posted By 3/18/2013 1:01:16 AM