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Tuesday, July 21, 2009

Review of Hamburger's Law and Judicial Duty

Marc DeGirolami has already written on this page about Philip Hamburger's wonderful recent book Law and Judicial Duty.  I've written a short (and favorable) review of that book for Engage: The Journal of the Federalist Society's Practice Groups.  It can be found here.  The introductory sentences give some sense of what I think of the book:

Philip Hamburger’s Law and Judicial Duty is an incredible book. Of the books I have reviewed in these pages in the last two years, it is simply the richest and best of the lot. Every constitutionalist, everyone interested in the history of the Anglo-American judicial craft, and everyone who cares not only about history but about contemporary debates over the nature and legitimacy of judicial review must read this book.

A couple of additional notes.  First, I would be equally happy to write reviews for either the FedSoc or the ACS (I'm a member)!  But the FedSoc is the one that asked me first, and they've done a great job with my reviews (anyone who is interested in writing reviews for Engage should contact Peter Aigner, who is a great editor and, in my experience, a mensch).  ACS folks, you're welcome to follow suit.  After all, the review will be the same regardless of the audience.  Second, I note with dismay that SSRN does not collect book reviews on an author's index page or count downloads, and thus they are harder to search for.  I understand the decision but I think it's wrong, and I hope SSRN revisits it, especially in light of recent discussions here about the value of book reviews in the law and the importance of finding alternative places to put them, places that ideally should be easily accessible.  I would also note that the policy is all the more unfortunate given that it is inconsistently applied.

Finally, although I heap praise on Hamburger's book, I do add some caveats.  It's a shame in particular that Hamburger doesn't pursue his project past Marbury, especially in light of some of the broader normative statements he wants to make about law and judicial duty in the present day; perhaps he will consider a second book that does just that, but until then we should take his normative conclusions with a grain of salt.  Still, this is one of the must-reads of legal publishing in the last year, especially for constitutional scholars.  Enjoy the review.  As always, comments are welcome.

Posted by Paul Horwitz on July 21, 2009 at 10:49 AM in Paul Horwitz | Permalink


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Marc, thanks for the kind words and the question. My short answer is, read the draft I just sent you! And my just as short answer is, read the draft I'll eventually send you of "The History and Meaning(s) of the Federal Judicial Oath," when I get around to writing it. Seriously, I hope to explore these issues in much greater detail in ongoing work, including the review essay I sent you last week and will soon post on SSRN. My sense is that for the oath to function in a robust fashion, as it once arguably did (or so Hamburger argues, a little too optimistically in my view but not without justification), it will require the revival of the values that surrounded it, including the sense of honor that was closely tied to both the oath and the making and breaking of public reputations in the early republic. But it is impossible to simply revive a lost virtue, torn from its context (religious and otherwise) without adapting and rethinking it to fit into a modern context. Hence the passage you quote.

Posted by: Paul Horwitz | Jul 21, 2009 2:54:58 PM

Paul, it's a lovely review, written with your usual grace and artfulness. I think a lot of the book as well. I wanted to ask you (certainly not to "press" you -- I hope very much that this ungainly phrase is rapidly abandoned from the conference lexicon) about one of your final thoughts. You write that if the oath is to be revived (assuming that it needs reviving for a moment) in the consciousness of American judges, "it will take an act of imaginative reconstruction, building a new sense of the oath on a mix of ancient and decidedly modern values[.]"

I wondered what you meant by this point -- both the "imaginative reconstruction" part and the "decidedly modern values" part (not just modern, but *decidedly* modern!). I know your work on the oath and oath-taking, and was interested to know how you think that this antiquated -- dare one say, decidedly antiquated :) -- practice, laden as it is with the whiff of anachronism, could be revivified and transmuted for modern sensibilities.

Perhaps this is too large a question for this format, but even a few little thoughts would be interesting. Thanks for the very good review.

Posted by: Marc DeGirolami | Jul 21, 2009 2:08:32 PM

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