Rehabilitating Lochner: Defending Individual Rights against Progressive Reform Review

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Rehabilitating Lochner: Defending Individual Rights against Progressive Reform ReviewIn my constitutional law class, my understanding of Lochner was as follows: The Supreme Court essentially made up the right to liberty of contract around 1900, and used that right to subvert needed economic reform while ignoring the rights of minorities and others. Wise Justices like Holmes saw right through the majority, and revealed that they were simply trying to impose the Justices' anti-labor preferences on the country at large. Meanwhile, Holmes and his colleague Brandeis started to redirect the Fourteenth Amendment away from the protection of property and contract rights toward the protection of civil liberties. In the 1930s, the anti-Lochner forces won, and Holmes and Brandeis's Progressive vision came to dominate constitutional law.
The thrust of Rehabilitating Lochner is that all of this is conventional wisdom, yet it is wrong in almost every detail. It's a short, readable book, but manages to convey an incredible amount of information about the real story of Lochner, its supporters, its Progressive critics, and the continuing influence of Lochner on modern constitutional law. It's too rich to try to sum up in a short review, so just read it!Rehabilitating Lochner: Defending Individual Rights against Progressive Reform OverviewIn this timely reevaluation of an infamous Supreme Court decision, David E. Bernstein provides a compelling survey of the history and background of Lochner v. New York. This 1905 decision invalidated state laws limiting work hours and became the leading case contending that novel economic regulations were unconstitutional. Sure to be controversial, Rehabilitating Lochner argues that the decision was well grounded in precedent—and that modern constitutional jurisprudence owes at least as much to the limited-government ideas of Lochner proponents as to the more expansive vision of its Progressive opponents. Tracing the influence of this decision through subsequent battles over segregation laws, sex discrimination, civil liberties, and more, Rehabilitating Lochner argues not only that the court acted reasonably in Lochner, but that Lochner and like-minded cases have been widely misunderstood and unfairly maligned ever since. (20110627)

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Arrest-Proof Yourself: An Ex-Cop Reveals How Easy It Is for Anyone to Get Arrested, How Even a Single Arrest Could Ruin Your Life, and What to Do If the Police Get in Your Face Review

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Arrest-Proof Yourself: An Ex-Cop Reveals How Easy It Is for Anyone to Get Arrested, How Even a Single Arrest Could Ruin Your Life, and What to Do If the Police Get in Your Face ReviewI almost cannot believe this book was written by a cop. If Hunter S. Thompson were not dead before the publication date, I would swear this was ghost-written. When he advises the reader to consider SOILING his or her PANTS to avoid being taken into custody, I can't vouch for the quality of the advice, but I have to admire the author's balls. Other bits of advice are undoubtably real gems; when the author recommends to always ask the cop for a Notice to Appear in court (or "NOA" - this is to be attempted before resorting to the pant-pooping) he is dispensing uncommon practical wisdom. His discussion of racial profiling, and direct advice to young black and hispanic men, is jaw-droppingly frank. Not unlike Thucydides, the author says, in effect: "Let us have no talk of just and unjust."
The bulk of this book is not unlike the various "Know Your Rights" resources published by groups like the ACLU, but it is vastly better. Those other resources give sound advice in the form of "rules," but it is abstracted from 4th and 5th Amendment case law. The truth is that the justice system exists primarily in the cracks between the laws - in the form of police and prosecutorial discretion. The subjective aspects of an encounter with the police - namely police incentives and psychology - are at least as important to your outcome as the positive law is. Any student of the Supreme Court can tell you what to do in a police encounter (e.g. "shut up"), but without any understanding of why you are doing it, it may be VERY difficult advice to follow.
Following the old adage "know your enemy in order to defeat him," the author shows you what a police encounter looks like from the cop's perspective. Police, the author emphasizes, are NOT "just people" - they are "Great White sharks" (his words) trained to churn as many arrests and seizures as possible. But -like sharks- they share certain natural tendencies that make them predictable, (to a limited extent) manipulable, and (above all) avoidable.
Another way it differs from the ACLU brand of rights books and videos is in its urgency. The author argues that, in the electronic panopticon that is today's justice system, an arrest is effectively as damning as a conviction. Computer databases mean that today, not just your penal interests, but also your future employment and your credit can be ruined by an arrest. This is why you - the citizen - must read this book. Not even the best attorney can get you "un-arrested" - you must help yourself by staying free in the first place.
That said, I think the author overstates this point a bit. The class of the offense and your age at the time still matter a great deal. Not even the CIA can afford to exclude everyone with a blemish on their record. Moreover, the panopticon is not really all that efficient (yet). If your name is "Joe Smith," from "Los Angeles," your legibility to the system is still pretty minimal.
Carson limits his advice to those bits helpful to the "clueless" petty criminal - the people most likely to be arrested in a random police encounter. This book tells you only how to navigate what the law calls a "Terry" stop. He's not interested in helping dangerous and/or professional criminals - who are in any event much more likely to be arrested pursuant to a warrant of some sort. (If your house is going to be raided, get a book on prisons, because this won't be of much help.)
This brings us to the author's very interesting editorial thesis: namely, that economics keeps petty offenses criminal. On this account, simple possession of marijuana remains a criminal offense primarily because courts and cops need something to do while they are between rapists and murderers. Petty crime is the daily bread of the justice system. This is a very interesting hypothesis, and while it probably deserves a more scholarly treatment than it recieves here (any U of Chicago grad students in the room?), it seems to me intuitively correct. This beast must eat a steady diet of petty offenders so that it's still in shape when we really need it. But this obviously sucks for the petty offenders (who, when you think about it, are really doing a public service) and Carson is interested in teaching them how to avoid the beast's jaws.
Sadly, the few people who really need this book are unlikely to have the foresight to read it. But, if you are at risk of being arrested this book is for you. If you look weird, are a young male, belong to a racial minority group, travel on foot, drive after midnight, use illegal drugs, have a prior record, or have friends or family who do any of the above, this book is worth taking a look at. Also highly recommended for people who work in the CJ system (except cops, who know this stuff).Arrest-Proof Yourself: An Ex-Cop Reveals How Easy It Is for Anyone to Get Arrested, How Even a Single Arrest Could Ruin Your Life, and What to Do If the Police Get in Your Face OverviewThis essential "how not to" guide explains how to act and what to say in the presence of police to minimize the chances of being arrested and to avoid add-on charges-which can often lead to permanent disqualification from jobs, financing, and education. Citizens can learn how to avoid arrest both on the street and when pulled over in a vehicle and are alerted to basic tricks cops use to get people to incriminate themselves. Sprinkled with absurdity and humor, this urgent, eye-opening book is a guide to criminal justice for all Americans.

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