Academic

Legal Theory Bookworm

By Lawrence Solum

The Legal Theory Bookworm recommends Law and Judicial Duty by Philip Hamburger.  Here is a description:

Almost every day, a judge in the United States holds a statute unconstitutional. This power of the judges is known as ?judicial review,? and it often seems the central feature of American constitutional law. The authority and scope of this power, however, have long remained unclear, and because historical accounts have tended to suggest that the judges themselves largely developed judicial review, the history has given credence to the view that judges enjoy considerable discretion over the extent and exercise of this power.

Law and Judicial Duty presents a very different history and a very different conception of the power of the judges. Drawing upon previously unexplored evidence, Philip Hamburger reveals the familiar notion of judicial review to be largely an illusion produced by modern assumptions, and he shows that what today is called ?judicial review? was once understood more simply as part of the duty of judges to decide in accord with the law of the land. His book challenges many modern assumptions about the extent of judicial power, and by exploring judicial duty in its social context, the book raises sobering questions about the nature of law and the possibility of government under law.

And from the reviews:

A work of exemplary scholarship that sheds abundant new light on a complex and controversial subject. --Charles F. Hobson, editor of The Papers of John Marshall

Law and Judicial Duty is legal history on a grand scale.The book will reshape the scholarly debate about the origins and nature of judicial review. --R. Kent Newmyer, author of John Marshall & the Heroic Age of the Supreme Court

Full post as published by Legal Theory Blog on November 15, 2008 (boomark / email).