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This series serves as a biography of the U.S. Constitution, surveying the congressional history behind its development. In a rare examination of the role that both the legislative and executive branches have played in the development of constitutional interpretation, the series shows how the actions and proceedings of these branches reveal perhaps even more about constitutional disputes than Supreme Court decisions of the time. The centerpiece for the fourth volume in this series is the great debate over slavery and how this divisive issue led the country into the maelstrom of the Civil War. From the Jacksonian revolution of 1829 to the secession of Southern states from the Union, the book provides an unrivaled analysis of the significant constitutional events—the Wilmot Proviso, the Compromise of 1850, the Kansas-Nebraska Act, the Lincoln-Douglas Debates, and “Bleeding Kansas”—that led up to the war. Exploring how slavery was addressed in presidential speeches and debated in Congress, the book shows how the Southern Democrats dangerously diminished federal authority and expanded states' rights, threatening the nation's very survival.

Some describe civil litigation as little more than a drag on the economy; others hail it as the solution to most of the country’s problems Stephen C. Yeazell argues that both positions are wrong. Deeply embedded in our political and economic systems, civil litigation is both a system for resolving disputes and a successful business model, a fact that both its opponents and its fans do their best to conceal. Lawsuits in a Market Economy explains how contemporary civil litigation in the United States works and how it has changed over the past century. The book corrects common misconceptions—some of which have proved remarkably durable even in the face of contrary evidence—and explores how our constitutional structure, an evolving economy, and developments in procedural rules and litigation financing systems have moved us from expecting that lawsuits end in trial and judgment to expecting that they will end in settlements. Yeazell argues that today’s system has in some ways overcome—albeit inconsistently—disparities between the rich and poor in access to civil justice. Once upon a time, might regularly triumphed over right. That is slightly less likely today—even though we continue to witness enormous disparities in wealth and power. The book concludes with an evaluation of recent changes and their possible consequences.

This is a study of Justice Oliver Wendell Holmes Jr.’s original contribution to both legal logic and general logical theory. Conventional legal logic has focused on the operation of judges deciding the immediate case. Holmes (from analogies with natural science) came to understand law as an extended process of inquiry into recurring problems. The role of the legal profession is thereby recast by Holmes to recognize the importance of input from outside the law—the importance of the social dimension of legal and logical induction. Lawyers and judges perform an important but often largely ancillary role, one that must nevertheless be evaluated from the standpoint of a logical method prioritizing experience over general propositions. Addressing the nature of the difficult case, Holmes emphasized an aspect of uncertainty distinct from that commonly envisioned for the deciding judge. Rather than unclarity or contradiction within the settled law, or vagueness in the meaning or application of an applicable rule, Holmes focused instead on the relation of a novel or unanticipated fact to an underlying and emergent social problem. The appearance of legal uncertainty, where opinions and authorities are sharply divided in a controversial case, signals the early stage of a broader social continuum of inquiry. It is not then strictly a legal uncertainty, and it is a mistake to expect that judges alone can immediately resolve the larger problem.

Technological revolutions have had an unquestionable, if still debatable, impact on culture and society—perhaps none more so than the written word. In the legal realm, the rise of literacy and print culture made possible the governing of large empires, the memorializing of private legal transactions, and the broad distribution of judicial precedents and legislation. Yet each of these technologies has its shadow side: written or printed texts easily become static and the textual practices of the legal profession can frustrate ordinary citizens, who may be bound by documents whose implications they scarcely understand. This book offers an exploration of the impact of three technological revolutions on the law. Beginning with the invention of writing, continuing with the mass production of identical copies of legal texts brought about by the printing press, and ending with a discussion of computers and the Internet, it traces the journey of contracts, wills, statutes, judicial opinions, and other legal texts through the past and into the future.

The Search for Justice is a study of the role of lawyers in the Civil Rights Revolution. The work focuses on school desegregation from 1950 to 1975 and includes counsel on both sides of the struggle in the courtroom and in Congress, the federal and state judges and justices, and law school constitutional authorities. Key cases include Sweatt v. Painter, Brown v. Board of Education, and NAACP v. Alabama. Key players include Thurgood Marshall, Robert L. Carter, John W. Davis, Earl Warren, James Patterson, Strom Thurmond, Richard Russell, Alexander Bickel, and Herbert Wechsler. The argument is that the outcome of the struggle was never inevitable: lawyers for segregation did an able job of representing their clients, and in some sense were successful with resegregating neighborhood schools.

Even as unemployment rates soared during the Great Depression, FDR's relief and social security programs faced attacks in Congress and the courts on the legitimacy of federal aid to the growing population of poor. In response, New Dealers pointed to a long tradition—dating back to 1790 and now largely forgotten—of federal aid to victims of disaster. This book recovers this crucial aspect of American history, tracing the roots of the modern American welfare state beyond the New Deal and the Progressive Era back to the earliest days of the republic, when relief was forthcoming for the victims of wars, fires, floods, hurricanes, and earthquakes. Drawing on a variety of materials, including newspapers, legal briefs, political speeches, the art and literature of the time, and letters from thousands of ordinary Americans, it shows that while this long history of government disaster relief has faded from our memory today, it was extremely well known to advocates for an expanded role for the national government in the 1930s, including the Social Security Act. Making this connection required framing the Great Depression as a disaster afflicting citizens though no fault of their own. Dauber argues that the disaster paradigm, though successful in defending the New Deal, would ultimately come back to haunt advocates for social welfare. By not making a more radical case for relief, proponents of the New Deal helped create the weak, uniquely American welfare state we have today.

This book argues that policy responses to financial crises are similar across time and place and are generally ineffective or counterproductive. Political actors, hoping to avoid blame for a financial crisis, create a “market failure narrative” arguing that misbehavior by securities market participants, rather than prior policy errors, was the primary cause of the crisis. Regulatory reforms are therefore designed to solve problems that are either non-existent or tangentially related to the crisis. The reforms often decrease competition and concentrate the market share of leading financial firms. The book illustrates the point primarily but not exclusively with evidence from the New Deal-era securities reforms in the United States. Contrary to the widespread belief among economists, historians, lawyers, and journalists that the New Deal securities reforms are a quintessential example of “good” regulation that addressed clearly-identified shortcomings in the U.S. securities markets of the late 1920s and early 1930s in a sensible and durable manner, the book provides evidence that Congress’s diagnoses were systematically inaccurate and its remedies reduced competition in the securities industry. It uses the analysis to draw lessons for more recent reforms, particularly the Sarbanes-Oxley Act of 2002 and the Dodd-Frank Act of 2010.