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Our Real Constitution—And What Happened to It

In American History, Arts & Letters, Book Reviews, Books, Conservatism, History, Humanities, Jurisprudence, Law, liberal arts, Philosophy, Politics, Scholarship, Western Philosophy on January 25, 2017 at 6:45 am

Allen Mendenhall

This review originally appeared here in The University Bookman.

Conservatism lost a giant when George W. Carey passed away in 2013. Thanks to Bruce Frohnen, his longtime friend, we’re able to hear anew Carey’s prudent admonitions in these strange and interesting times.

Before his death, Carey completed drafts of chapters on progressivism and progressive constitutional reform that later became substantial portions of two chapters in Constitutional Morality and the Rise of Quasi-Law, the book that Frohnen has now completed. The final product is an impressively collaborative effort that substantiates the idea of constitutional morality, which Carey spent years developing.

The two men had planned to split the chapters in half. Having few disagreements between them, they reserved the right to approve and edit each other’s contributions. Carey’s untimely passing changed these plans. To honor his friend, Frohnen consulted Carey’s work carefully, downplaying his own more “antifederalist” positions to accommodate Carey’s more federalist leanings. If Jefferson and Hamilton would have agreed that the size and scope of the American government has become dangerous and unmanageable, then it’s no surprise that Frohnen and Carey found common ground.

Constitutional morality denotes “the felt duty of government officials … to abide by the restrictions and imperatives imposed on them by a constitution.” It contemplates the “unwritten constitution,” a concept central to Frohnen and Carey’s argument that’s drawn from Russell Kirk and Orestes Brownson, both of whom Frohnen in particular has interpreted thoughtfully and skilfully. Kirk defined the unwritten constitution as “the body of institutions, customs, manners, conventions, and voluntary associations which may not even be mentioned in the formal constitution, but which nevertheless form the fabric of social reality and sustain the formal constitution.” To maintain their authority and gain general acceptance in a community, written constitutions and positive laws must reflect the norms and values of the people they bind. Frohnen and Carey’s narrative is about how quasi-law in the form of executive decree and the administrative state have become divorced from the people they govern.

The narrative runs something like this. Rule by executive command and administrative agencies has resulted in a decline of the rule of law in the United States. Odd, extratextual interpretations of the United States Constitution have dislocated its content from the common understandings of reasonably prudent Americans. The Progressive Era facilitated a shift in our approach to law that was qualitatively different from the teachings of checks-and-balances, decentralization, separation-of-powers, and other such doctrines alive in the minds of our Founders, even those like Hamilton and the young Madison (as against the later Madison) who favored a strong national government. Consequently, we have found ourselves in a crisis of constitutional morality, there being little institutional and systemic accountability to curb the broad powers of bureaucracy, reckless and unelected federal judges, a delegating congress beholden to lobbyists and corporations, and the expansion of executive privilege, prerogative, and patronage.

Political rhetoric of limited government, common among Republican leaders, does not square with the manifest reality of the ever-growing managerial state. Heated discourse alone won’t suffice to roll back federal programs and agencies. “What is required,” say Frohnen and Carey, “is a retrenchment of the federal government into a much smaller but more detailed and legalistic form that allows more actions to be taken by other institutions, be they states, localities, or associations within civil society.” In short, these men call for devolution and subsidiarity. They make the case for localized control based on clear rules that are consistent with common norms and expressed in a shared idiom.

Championing the rule of law involves the recognition that, although morality does or should underpin laws, “we cannot use the tool of law to achieve perfect virtue, or freedom, or any other moral good.” Without denying the importance or reality of natural law, which is antecedent to human promulgation, Frohnen and Carey approach it cautiously, stating that it “is not a rigid code demanding that human law force all human beings into a straightjacket of specific individual conduct.” Seemingly skeptical of grand schemes for the magnificent systematization and organization of natural-law principles, they humbly submit that humans “can only do our best to develop practical lawmaking and interpreting virtues such that the laws we make will be efficacious in spelling out and enforcing duties in such a way as perhaps to encourage people to pursue virtue.” This nomocratic mode of thinking recalls Hume, Burke, Oakeshott, Kirk, and Hayek with its awareness of the limitations of human knowledge and its attention to the historical, institutional, and cultural embeddedness of standards and values.

If there is one take-home point from this book, it’s that government is not the instrument through which to facilitate the good, the true, or the beautiful. We should avoid the “new dispensation” that consists in “a government ruled not by formal structures and procedures but by the pursuit of putatively good policy through broad statements of programmatic goals and the exercise of broad discretionary power.” Disempowering the central government may be the obvious counter to this new dispensation, but we’ve been advocating that for decades. In fact, Frohnen and Carey believe that “there can be no simple return to the original dispensation,” which involved “the Framers’ constitutional morality, emphasizing procedure, caution, and restrained defense of one’s institutional prerogatives.”

With no quick and easy remedy at the ready, Frohnen and Carey encourage something less magnificent and extraordinary: civic participation in local associations and mediating institutions such as “families, unions, clubs, schools, and religious groups,” the kinds of little platoons that struck Alexis de Tocqueville, during his tour of America, as bulwarks against tyranny. “More important than any particular policy,” Frohnen and Carey aver, “is the attitude toward law and policy making that must be recaptured.” Although they suggest that some form of separation or secession may become inevitable, the corrective they envision is rhetorical and discursive. We must, in their view, shape the political discourse through private associations, which, in the aggregate, engender the bottom-up processes of rulemaking that reflect the normative orders of local communities rather than the top-down commands of a faraway, massive, impersonal sovereign.

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Free Exchange with Dr. Donald Livingston of Emory University

In America, American History, Arts & Letters, Books, Conservatism, Economics, History, Humane Economy, Humanities, Law, liberal arts, Liberalism, Libertarianism, Philosophy, Politics, Scholarship, Southern History, The South, Western Civilization, Western Philosophy on January 18, 2017 at 6:45 am

In 2014, Dr. Donald Livingston sat for an interview for “Free Exchange,” a program of the John W. Hammond Institute for Free Enterprise at Lindenwood University.  The interview appears below. Dr. Livingston is Professor Emeritus in the Philosophy Department at Emory University, President of the Abbeville Institute, and Fellow of the Institute for Advanced Studies at the University of Edinburgh.

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Richard Posner is a Monster

In Academia, Arts & Letters, Book Reviews, Books, History, Humanities, Jurisprudence, Law, Legal Education & Pedagogy, liberal arts, Oliver Wendell Holmes Jr., Pragmatism, Scholarship, Writing on January 11, 2017 at 6:45 am

Allen Mendenhall

This review originally appeared here in the Los Angeles Review of Books.

William Domnarski is probably right when he writes that Richard Posner, like his hero Oliver Wendell Holmes Jr., “seemed destined for a literary life.” Holmes modeled himself on Emerson; he was the class poet at Harvard and earned his reputation as a thoughtful if controversial man of letters who could write with panache.

Posner, who majored in English at Yale, modeled himself on Holmes. “Holmes,” Posner declared in a missive, “is the greatest jurist, at least of modern times, because the sum of his ideas, metaphors, decisions, dissents, and other contributions exceeds the sum of contributions of any other jurist of modern times.” Posner’s writing similarly stands out for its flair and confidence.

Both men extended their influence beyond their legal opinions and have contributed to philosophy, becoming provocative historical figures in their own right. Posner has correctly invoked Holmes as a pragmatist, even if Holmes avoided the designation and referred to William James’s pragmatism as an “amusing humbug.” A member of the short-lived Cambridge Metaphysical Club that birthed pragmatism in the 1870s — and which also included James and C. S. Peirce — Holmes at least imbibed the pragmatism that was, so to speak, in the Boston air. Posner’s pragmatism, however, is only tangentially related to the thinking of Peirce and James, and so one hesitates to call it pragmatism at all.

In a move that must irritate University of Miami professor, Peirce supporter, and Richard Rorty critic Susan Haack, Posner distinguishes his variety of pragmatism — what he calls “everyday pragmatism” — from philosophical pragmatism. His thesis is most pronounced in his book Law, Pragmatism, and Democracy(2005). The quotidian pragmatism that inheres in the law is, in his view, practical and forward-looking and based on “reasonableness.”

It’s not always clear how this mode of pragmatism intersects with, or diverges from, the so-called traditional or classical pragmatism, though it differs markedly — and refreshingly — from what Haack labeled “vulgar Rortyism,” that Frenchified variety of structuralism that dispensed with truth as a meaningful category of discourse.

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One suspects, given his outsized ego, that Posner delights in having placed his stamp on legal pragmatism, thereby forcing perplexed students in philosophy departments to come to terms with his ideas and square them with not only Peirce and James but also John Dewey, George Herbert Mead, and W. V. Quine.

Posner’s self-importance can be charming or off-putting. You might see him as an erudite, spirited dandy playing the part of flamboyant intellectual; or, more cruelly, as a bitter sophist bent on celebrating his own idiosyncratic views and maliciously dismissing his opponents with callous words and harsh indictments. Certainly his gratuitous rhetorical attacks on the late Antonin Scalia warrant this latter take.

And yet the man speaks with a high, soft voice; loves and spoils his cat; and spends most of his time reading and writing. It’s hard to condemn such things.

Posner is on record as having fancied himself as not just equal to, but more intelligent than, Learned Hand and Henry Friendly — two giants of American law — because he considered himself more informed about economics. This is surprising, chiefly because his self-assessment occurred before he became a judge.

As a judge, Domnarski tells us, “he could seek to persuade his new judicial colleagues to follow him, so as to further shape the law as he saw it — in his own image.” He continues to shape everything, it seems, in his own image, including, perhaps, Domnarski’s biography, which he read both in draft form and as a final manuscript.

One wonders how heavily he edited his own biography — how much latitude he enjoyed in fashioning his story. He sat for interviews and emailed with Domnarski, which wouldn’t be unusual or improper had he not been a primary source of his own legend, as he certainly appears to have been. As a young man, Posner exercised his authority as president of Harvard Law Review to include certain content over the objections of his peers. Might he have done this with his biographer?

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Posner, an only child, is used to promoting himself, and his acquaintances at different stages of his life often note his arrogance. As early as high school, he would say “the Poze knows,” and called himself “the mighty one,” writing in yearbooks that he “welcomes you as a High Priest of Posner Worship.” You can write this off as playful, but you can’t write off the fact that he cites himself in cases more than any other judge — though not by name, Domnarski points out, as if to acquit him of unseemly motivations.

An editor of a peer-reviewed journal once complained that Posner had cited himself too often in a paper, to which Posner rejoined that self-citation was necessary because he had produced most of the relevant literature on the subject. “The Poze knows,” the footnotes might have read. Another time an exasperated Posner wrote to editors at Cambridge University Press, “Don’t you know who I am?” — the same remark that landed Henry Louis Gates Jr. in hot water under different circumstances.

Although Domnarski connected with over 200 people to piece together this book, Posner’s personal opinion of himself seems to control the narrative and crowd out contrary valuations that critics may have offered. It’s not that Posner’s accomplishments and reputation are unearned. He’s worked hard to become perhaps the best-known and most prolific federal circuit judge in our nation’s history, and his talents and learning are unquestionable and impressive. The person who emerges in these pages is exceptional at what he does, but difficult to like. He graduated first in his class at Harvard Law School but was not popular. He remains good with ideas — just not with people. He’d rather disseminate brilliant theories than keep them to himself, even when they’re in bad taste or poor form. Whether that’s a virtue or vice depends upon one’s priority for manners and decorum.

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Posner’s most remarkable and admirable quality, it seems to me, is his ability — even willingness — to accept constructive criticism in stride. He doesn’t take evaluations of his work personally, and he invites opposition to fine-tune and improve his ideas. He instructs his clerks to criticize his draft opinions line by line so that he can perfect his rationale. “[W]e should want” and “insist upon,” he wrote to a colleague, “challenge and criticism; the rougher the better; for one of the great dangers of achieving eminence is that people are afraid to criticize you and then you end up inhabiting a fool’s paradise.”

Posner has referred to himself as a “monster,” a characterization he’s also reserved for Wagner, Tolstoy, Nietzsche, Wittgenstein, Proust, Kafka, and Michelangelo. The term thus seems like an odd form of self-approbation rather than regret or self-loathing. It accords with his grand notion that he is “a Promethean intellectual hero,” not just some federal judge who happens to be well read.

Posner remains “a writer first and a lawyer second.” He’s correct that, as he told one correspondent, “the modern practice of law does not offer a great deal of scope for the poetic imagination.” Law schools have divided faculty into fields and sub-fields, and specialists in different areas of practice are increasingly unable to speak to one another in a common idiom or with shared vocabularies. Posner studied at Yale under Cleanth Brooks, who directed Posner’s research on William Butler Yeats, so he knows a thing or two about the poetic imagination and memorable expression.

But maybe the law is not about poetic imagination. Maybe it requires a prosaic and mechanical mind that can dispassionately and without fanfare adjudge the soundness of legal arguments presented by the parties to a case. If so, Posner may have been better suited for a different profession, one he would have loved and within which he could have more appropriately flaunted his creativity. Being an English professor, though, would’ve been out of the question; he dismisses much of what English literature departments regard as scholarship as “bullshit.” He uses the same word to describe work in the legal professoriate, of which he was once a seminal figure. By age 30, in fact, he had achieved the rank of full professor at the University of Chicago Law School. He cultivated the image of an iconoclastic rabble-rouser willing to subject all human activity to cost-benefit analysis. He popularized the law-and-economics movement and eagerly imparted that economic efficiency supplied the right methodology for describing and delineating common-law judging, which involved practical resolutions to concrete problems. The doctrinaire Posner of this period drifted far from the Communist roots of his mother. More recently, though, he’s alleged that capitalism is a failure and moved decidedly to the left on key issues.

Perhaps because of his haughtiness, the law can seem boring and routine without him. There’s something to be said for the color and liveliness he brings to his office, and for his belief that “the law really is a very limited field for a person of literary bent.” Domnarski’s treatment may seem deferential, but it doesn’t cover up Posner’s naked, sometimes brutal honesty. Posner is willing to say what others aren’t, and able to say it more eloquently.

If, as Domnarski avers, Posner considers the average lawyer to be like Bartleby or Ivan Ilych — fancifully tragic figures — then he must disdain or pity those lawyers who come before him in the courtroom and submit their briefs for his relentless scrutiny. The 1987 Almanac of the Federal Judiciary states that lawyers who argued before Posner found him to be “arrogant, impatient, dogmatic,” and “opinionated,” and that he “dominates arguments” and “cross-examines lawyers as if they were 1-Ls in a Socratic exchange with a professor.” The man is important, no doubt, but never learned how to play nicely.

Ever the Darwinian, Posner has suggested that great books prove their merit over time in the competition of the marketplace; perhaps his reputation will too.

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Seth Vannatta on Conservatism and Pragmatism in Law, Politics, and Ethics

In Academia, American History, Arts & Letters, Book Reviews, Books, Conservatism, History, Humanities, Jurisprudence, Law, liberal arts, Philosophy, Politics, Pragmatism, Scholarship, The Academy, Western Philosophy on December 28, 2016 at 6:45 am

Allen 2

At some point all writers come across a book they wish they had written. Several such books line my bookcases; the latest of which is Seth Vannatta’s Conservativism and Pragmatism in Law, Politics, and Ethics.

The two words conservatism and pragmatism circulate widely and with apparent ease, as if their import were immediately clear and uncontroversial. But if you press strangers for concise definitions, you’ll likely find that the signification of these words differs from person to person. Maybe it’s not just that people are unwilling to update their understanding of conservatism and pragmatism—maybe it’s that they cling passionately to their understanding (or misunderstanding), fearing that their operative paradigms and working notions of 20th century history and philosophy will collapse if conservatism and pragmatism differ from some developed expectation or ingrained supposition.

I began to immerse myself in pragmatism in graduate school when I discovered that its central tenets aligned rather cleanly with those of Edmund Burke, David Hume, F. A. Hayek, Michael Oakeshott, and Russell Kirk, men widely considered to be on the right end of the political spectrum even if their ideas diverge in key areas. In fact, I came to believe that pragmatism reconciled these thinkers, that whatever their marked intellectual differences, these men believed certain things that could be synthesized and organized in terms of pragmatism. I reached this conclusion from the same premise adopted by Vannatta: “Conservatism and pragmatism . . . are methods . . . guided by various common norms.” As such, they can lead to different political policies despite the consistently conservative character of their processes and techniques.

Read my review of Vannatta’s book in University of Dayton Law Review by downloading it from SSRN at this link.

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Oliver Wendell Holmes Jr., Pragmatism, and the Jurisprudence of Agon

In America, American History, American Literature, Arts & Letters, Books, History, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Research & Writing, liberal arts, Literary Theory & Criticism, Literature, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Rhetoric, Scholarship, The Supreme Court, Western Philosophy, Writing on December 7, 2016 at 6:45 am

Allen 2

My latest book, scheduled for release next week through Bucknell University Press, is about United States Supreme Court Justice Oliver Wendell Holmes Jr.  The book continues my work at the intersection of law and the humanities and should interest scholars of literary theory, American literature, jurisprudence, and pragmatism.

I argue in the book that Holmes helps us see the law through an Emersonian lens by the way in which he wrote his judicial dissents. Holmes’s literary style mimics and enacts two characteristics of Ralph Waldo Emerson’s thought: “superfluity” and the “poetics of transition,” concepts ascribed to Emerson and developed by literary critic Richard Poirier. Using this aesthetic style borrowed from Emerson and carried out by later pragmatists, Holmes not only made it more likely that his dissents would remain alive for future judges or justices (because how they were written was itself memorable, whatever the value of their content), but also shaped our understanding of dissents and, in this, our understanding of law. By opening constitutional precedent to potential change, Holmes’s dissents made room for future thought, moving our understanding of legal concepts in a more pragmatic direction and away from formalistic understandings of law. Included in this new understanding is the idea that the “canon” of judicial cases involves oppositional positions that must be sustained if the law is to serve pragmatic purposes. This process of precedent-making in a common-law system resembles the construction of the literary canon as it is conceived by Harold Bloom and Richard Posner.

The book is available for purchase here:

Click here to purchase

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The Trial Scene in Shakespeare’s “Merchant of Venice”

In Arts & Letters, Books, British Literature, Fiction, History, Humanities, Jurisprudence, Justice, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Shakespeare, Theatre, Western Civilization on August 31, 2016 at 6:45 am

Allen 2

The following excerpt is adapted from my essay “A Time for Bonding: Commerce, Love, and Law in The Merchant of Venice,” which may be downloaded at this link.

Act IV, Scene I of William Shakespeare’s Merchant of Venice involves the climactic court scene in which Shylock and Antonio confront one another, in person, before Portia, who will determine Antonio’s fate.

At this point Portia has already revealed to Nerissa, her lady-in-waiting, her plan to “wear my dagger with the braver grace / And speak between the change of man and boy / With a reed voice, and turn two mincing steps / Into a manly stride, and speak of frays / Like a fine bragging youth.” She and Nerissa will cross-dress, in other words, and once “accoutred like young men” will act as though Portia is a doctor of laws, or a law clerk, administering justice and adjudicating disputes in the Duke’s Venetian courtroom.

Bassanio attempts to settle the case on Antonio’s behalf by tendering Shylock double and then triple the amount of the original loan, but Shylock unmercifully insists on exacting a pound of Antonio’s flesh. Portia appears to support Shylock, saying, “[T]here is no power in Venice / Can alter a decree established: ‘Twill be recorded for a precedent, / And many an error by the same example / Will rush into the state: it cannot be.” Although she says that Shylock’s “suit” is “[o]f a strange nature,” she submits that “in such rule that the Venetian law / Cannot impugn you as you do proceed.”

Praising Portia as a “Daniel come to judgment,” Shylock demands that a judgment be entered against Antonio immediately: “When [the bond] is paid according to the tenour. / It doth appear you are a worthy judge; / You know the law, your exposition / Hath been most sound: I charge you by the law, / Whereof you are a well-deserving pillar, / Proceed to judgment: by my soul I swear / There is no power in the tongue of man / To alter me: I stay here on my bond.” Antonio himself conveys a preference for swift judgment: “Make no more offers, use no farther means, / But with all brief and plain conveniency / Let me have judgment and the Jew his will.”

Portia readies the others for the judgment by telling Antonio to “prepare your bosom for [Shylock’s] knife.” That the bond calls for the pound of flesh to be exacted “nearest [Antonio’s] heart” draws attention to the metaphorical implications of the judgment and the plural meaning of the bond: it is not just the contractual relationship but the potential for friendship that is about to be carved apart.

Just before the judgment is to be perfected, Bassanio and Antonio profess their love for one another. Portia then explains to Shylock—turning his literalism against him—that the judgment calls for the removal of a pound of flesh but “no jot of blood.” If any blood should be drawn, then Shylock must forfeit his lands and goods to Venice. There being no way to cut a pound of flesh without drawing blood, Shylock finds himself in a precarious situation. Portia tells him that

The law hath yet another hold on you.

It is enacted in the laws of Venice,

If it be proved against an alien

That by direct or indirect attempts

He seek the life of any citizen,

The party ‘gainst the which he doth contrive

Shall seize one half his goods; the other half

Comes to the privy coffer of the state;

And the offender’s life lies in the mercy

Of the duke only, ‘gainst all other voice.

In which predicament, I say, though stand’st;

For it appears, by manifest proceeding,

That indirectly and directly too

Thou hast contrived against the very life

Of the defendant; and thou hast incurr’d

The danger formerly by me rehearsed.

With these words, Shylock is defeated. The Duke pronounces that, as a consequence of the legal proceeding, Shylock shall render half his wealth to Antonio and half to Venice, but Antonio pleads that he will forego his share if Shylock converts to Christianity. The Duke concedes; Shylock acquiesces. The litigation comes to a close.

 

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How Unelected Bureaucrats Became ‘Liberty’s Nemesis’

In America, Book Reviews, Books, Jurisprudence, Law on August 17, 2016 at 6:45 am

Allen 2

This post originally appeared here in The Federalist.

Whether they realize it or not, Americans are subject to the soft despotism of administrative law. The common-law system of ordered liberty and evolutionary correction that the United States inherited from England is hardly recognizable in our current legal system. Bureaucratic administrative agencies that are unaccountable to voters now determine many of the rules and regulations that have palpable effects on the everyday lives of ordinary citizens.

In many important respects, we no longer live in a constitutional republic—we’re subject to the rule of an unaccountable administrative state. This the problem confronted in Liberty’s Nemesis: The Unchecked Expansion of the State, edited by Dean Reuter and John Yoo.

Although the U.S. Constitution does not expressly endow them with legislative prerogative, or even contemplate their current form and function, administrative agencies issue and enforce binding rules. They arrogate to themselves powers nowhere authorized by the Constitution or validated by historical Anglo-American experience. These agencies, moreover, govern quotidian activities once left to local communities and small businesses—everything from managing hospital beds to issuing permits to liquefied petroleum gas dealers. On both the state and federal level, administrative agencies have intruded upon local customs and practices and have imposed burdensome regulations on resistant groups, trades, neighborhoods, and civic associations.

Administrative agencies are creatures of legislation but directed by the executive branch, which has no constitutional authority to pass laws. Their powers derive from statutes that delegate the quasi-legislative authority to issue binding commands in specified contexts. Administrative agencies generally operate independently from Congress and the courts and possess discretionary rulemaking authority.

They conduct hearings and investigations and adjudicate disputes between parties. Some agencies are household names, such as the Federal Trade Commission and the Environmental Protection Agency; some are less known, especially within state government. For instance, state personnel boards manage employment disputes involving state employers and employees, and smaller agencies regulate all sorts of activity—from cosmetology and barbering to translation services and historical preservation efforts.

The justifying theory underlying the creation and existence of administrative agencies is that they consist of qualified experts in a specialized field. Whereas the legislature is made up of elected generalists who come and go, an agency is peopled by nonpartisan specialists with unique training and experience who hold permanent positions. Administrative agencies should thus be more reliable and efficient than legislative or executive bodies in promulgating or enforcing rules and regulations. Moreover, they should be isolated from political processes and partisan pressure. Yet this institutional independence that is touted as a virtue has in practice resulted in widespread unaccountability.

It’s axiomatic that an agency may not be sued without the consent of the state. Such consent, when given, is typically limited in scope so that any potential substantive liability is narrowed. Administrative proceedings only approximate the processes and protocols recognized in courts of law. An administrative adjudicatory forum seldom replicates or reflects the procedural and functional characteristics of a courtroom. When an administrative tribunal enters a final order, the non-prevailing party may seek redress through judicial review, but the tribunal’s decision carries a presumption of correctness on appeal—both on findings of fact and matters of law—except in rare circumstances when a statute prescribes otherwise.

F. A. Hayek warned about administrative agencies—and what he dubbed the “public administration movement”—in The Constitution of Liberty.

He explained that the public administration movement had adopted slogans about government efficiency “to enlist the support of the business community for basically socialist ends.” “The members of this movement,” he cautioned, “directed their heaviest attack against the traditional safeguards of individual liberty, such as the rule of law, constitutional restraints, judicial review, and the conception of a ‘fundamental law.’” Hayek then traced the history of public administration to show that “the progressives have become the main advocates of the extension of the discretionary powers of the administrative agency.”

Philip Hamburger’s Is Administrative Law Unlawful? (2014) echoed Hayek’s criticism that, in Hayek’s words, “the widespread use of [administrative] delegation in modern times is not that the power of making general rules is delegated but that administrative authorities are, in effect, given power to wield coercion without rule, as no general rules can be formulated which will unambiguously guide the exercise of such power.”

Hamburger reframed Hayek’s criticisms in deontological terms by suggesting that administrative law is not, in fact, law—it is inherently lawless. Hayek and Hamburger both make the compelling case that administrative agencies routinely undermine the rule of law, or the principle that the general rules of society apply equally to all citizens as well as the sovereign.

In addition to Hamburger, several recent books have charted the slow growth of administrative law in the United States. Chief among them are Jerry L. Mashaw’s Creating the Administrative Constitution: The Lost One Hundred Years of Administrative Law (2012), Joanna L. Grisinger’s The Unwieldy American State: Administrative Politics Since the New Deal (2012), and Daniel R. Ernst’s Tocqueville’s Nightmare: The Administrative State Emerges in America (2014). These studies are indispensable and together form a comprehensive history of how ordinary citizens succumbed to the supervisory powers of administrative regulators.

Liberty’s Nemesis follows in the wake of these rigorous works, though it is perhaps more polemical. The book includes essays by highly visible and influential figures who range from legal practitioners to politicians, academics to activists, jurists to jurisprudents. The book’s primary focus is on administrative agencies, but certain essays—such as former congressman Bob Barr’s discussion of threats to the Second Amendment or John Eastman’s concerns about same, sex marriage—widen the topical scope.

Reuter and Yoo have collaborated before. In 2011 they published Confronting Terror: 9/11 and the Future of American National Security, an edition that featured disparate essays by prominent conservatives and libertarians, some of whom have also contributed to Liberty’s Nemesis.

Reuter, who serves as vice president for the Federalist Society, has supplied the introduction to the book. His contribution is a primer on American civics with an emphasis on the subtle tyranny of administrative law. Yoo, a law professor at the University of California, Berkeley, who’s perhaps best known for authoring legal memoranda regarding torture and the War on Terror during the George W. Bush administration, offers a brief conclusion to the book that calls for conservatives to “recalibrate their revolution” by turning their activist energies against administrative agencies rather than Congress.

In my view, the most intriguing essays in the book belong to Jonathan H. Adler, Gerard V. Bradley and Robert P. George (coauthors), and Patrick Morrisey and Elbert Lin (also coauthors). Some subjects, such as Ronald A. Cass’s appraisal of the so-called Chevron doctrine, under which courts defer to the decisions of administrative agencies, may seem predictable in a text that assails administrative regulation. However, they are no less insightful or important for their predictability.

Other subjects include immigration, financial regulation, and campus speech. An edition with such diverse chapters defies simple summary and ready classification. Doing it justice in this space is impossible. When the authors of such wide-ranging chapters include sitting senators like Orrin Hatch and former commissioners of federal agencies like Harold Furchtgott-Roth, Daniel Gallagher, F. Scott Kieff, Maureen Ohlhausen, Troy Paredes, and Joshua Wright, the reviewer’s task becomes daunting if not impossible.

So permit me a few brief remarks about just three chapters and accept my general endorsement of the book as reason enough to buy it and read it in its entirety. I’ll start with Adler, who details, among other things, the manner in which the Obama administration exceeded the scope of its authority by delaying the implementation of the employer mandate found in the Patient Protection and Affordable Care Act, a.k.a. Obamacare. The first time his administration announced this delay was in a blog post.

Similar announcements followed from the Internal Revenue Service (which was under fire for the politicization of its activities) and the Treasury Department. Obamacare itself was silent as to any executive authority to waive the requirements of the employer mandate, which, as its name suggests, mandated the implementation of its terms. Ignoring that mandate, President Obama and his executive officers enjoy the unique distinction of being the first violators of the law they championed and swore to uphold. In light of the foregoing, Adler concludes that President Obama implemented Obamacare through “unlawful administrative action” carefully calculated to avoid Democratic losses in the 2014 midterm elections.

Bradley and George, for their part, argue the Obama administration has “remapped” religion and society by erasing (or at least by seeking to erase) religious exercise and expression from the public sphere while subjecting private religious exercise and expression to novel and intrusive regulation. Bradley and George argue the Obama administration is erasing religious exercise and expression from the public sphere. For example, the Obama administration promulgated rules that compel religious employers to subsidize not just contraception but abortifacients for their female employees. The exception to this requirement was crafted such that no religious institution could qualify to opt out. The Obama administration promulgated another rule that may effectively eliminate government contracts with religious-based humanitarian organizations that provide care and counseling for crisis pregnancies. Executive Order 13672, which became effective in April of last year, adds sexual orientation and general identity to the non-discrimination categories or classes under Title VII of the Civil Rights Act of 1964. The list could go on—and does go on in Bradley and George’s sustained critique.

Finally, Morrisey, and Lin present a firsthand perspective on the overreach of environmental regulations that have crippled the economy in West Virginia and Appalachia more generally. They target the Environmental Protection Agency, which used Section 112 of the Clean Air Act as a pretext for regulating power plants in West Virginia.

Morrisey is the current Republican attorney general of West Virginia, having defeated the five-term Democratic incumbent Darrell McGraw in 2012. Morrisey’s political rise in West Virginia, which coincided with the Republican takeover of that state’s government, has generated national attention in addition to speculation about his future in higher office.

The fresh-faced Lin, a graduate of Yale Law School, is the Solicitor General of West Virginia, making him the chief appellate lawyer for the state. His experience includes a stint in private practice in Washington DC as well as clerkships with Justice Clarence Thomas, Judge William (“Bill”) Pryor, and Judge Robert E. Keeton. Morrisey and Lin, who actually practice what they preach, give the following warning that sums up the message of the book: “The worst that can be done with respect to an overreaching federal agency is to simply accept it and allow it, through sheer inertia, to remake this country according to the preferences of a handful of unelected bureaucrats.”

Although the composition and character of the U.S. Supreme Court is undoubtedly the most important issue in the 2016 election because of the president’s power to appoint a successor to Justice Scalia—and possibly other justices nearing retirement—voters must also bear in mind the rapid and steady expansion of the administrative managerial state under President Obama. Conservatives now populate state legislatures in vast numbers; state attorneys general collaboratively have begun pushing back against federal agencies; state supreme courts have welcomed traditionalist jurisprudents who revere their state constitutions and the federalist system envisioned by the American Founders.

It will take a new kind of president to roll back the administrative state altogether. State resistance alone is no longer enough. Without any pressure from the executive branch, Congress will remain content to pass off touchy political decisions to administrative agencies, which, unlike politicians, cannot be voted out of power. Congress, in turn, can blame the agencies for any negative political consequences of those choices.

We may never recover the framework of ordered liberty that the Founding generation celebrated and enjoyed. But for the sake of our future, and to secure the hope of freedom for our sons and daughters, our grandchildren and their children, we must expose and undo the regulatory regime of administrative agencies. It’s our duty to do so.

Those concerned must applaud Reuter and Yoo for their efforts at publicizing the complex problems occasioned by administrative agencies. But there’s still much work left to do. Practical solutions will not come quickly or easily. Yet they’ll be necessary if we’re ever going to reverse course and remain a nation of promise and prosperity.

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Make America Mobile Again

In America, American History, Arts & Letters, Book Reviews, Books, Humane Economy, Humanities, Law, Politics on August 10, 2016 at 6:45 am

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This review originally appeared here in The American Spectator.  Note that some of the references to the presidential election are now dated but were timely when this review was originally published.

This election season has proven that, regardless of who becomes the Democratic or Republic nominee for president, the American political landscape has been reshaped. Candidates expected to have a smooth path to their party’s nomination have met, instead, a bumpy road. The rise of Donald Trump and Bernie Sanders as viable candidates reflects the growing feeling among ordinary Americans that the system is rigged, that they’re stuck in conditions enabled and controlled by an amorphous cadre of elites from Washington and Wall Street.

Income inequality is higher today than it’s been in nearly a century. Middle and lower class citizens of other First World countries enjoy more economic mobility than do middle and lower class Americans. The United States has fallen behind managerial and quasi-socialist governments in Europe in empirical rankings of economic freedom. The gap between the so-called 1% and the rest of America is growing, and recent college graduates, saddled with student loan debt and poor job prospects, are financially behind where their parents were at the same age.

Things don’t look promising. But one law professor, F. H. Buckley of the freshly named Antonin Scalia Law School at George Mason University, outlines ways to repair structural, systemic burdens on the American economy. His new book, The Way Back, published today by Encounter Books, provocatively advocates for socialist ends by capitalist means.

Although the word socialism recalls revolution, stifled competition, attacks on private ownership, abolition of the price-system and sound economic calculation, hunger, mass-murder, off-brand goods and low-quality services, among other demonstrable horribles, Buckley has something less vicious in mind. By socialism, he does not mean a centralized government that replaces the market system with economic planning and state control of the means of production. His “socialism” is not socialism at all.

Leaving socialism undefined, he suggests that free-market economics (a term he avoids but implies) and the dismantling of the regulatory state will do more than actual socialism and its variants to lift people out of poverty and maximize their quality of life. The Left, in short, has asked the right questions about income inequality and economic mobility but supplied the wrong answers or solutions. “Sadly,” Buckley complains, “those who loudly decry income disparities often support policies which make things worse.”

It’s the aristocratic elites, in Buckley’s view, who benefit from mass bureaucracy, the welfare state, a broken immigration and public-school system, trade barriers, a flawed tax code, and a general decline in the rule of law. These unjust institutions, policies, and conditions, with their built-in advantages for a select few, cause and sustain economic immobility. They solidify the place of aristocrats — what Buckley also calls the New Class — at the top of the social stratum. Those with high levels of wealth game the system through special favors, government grants, shell companies, complicated tax schemes, offshore banking, and other loopholes designed to ensure that the 1% are excluded from the regulatory barriers imposed and administered by government at the expense of the 99%.

The aristocracy that Buckley targets is not the natural aristocracy celebrated by certain American Founders for its virtue and political disinterestedness. It’s an artificial aristocracy that has little to do with merit or talent. The Founders — probably all of them — would have been appalled by the likes of Bill and Hillary Clinton: figures who became multi-millionaires through partisan politics. The Clintons embody the new artificial aristocracy. They amassed their wealth by championing programs that have slowed economic mobility while purporting to do the opposite. The Founders, by contrast, believed that benevolent aristocrats would be free from economic pressure and thus would not succumb to the temptations to use government positions or privileges for personal gain.

The Founders would have cringed to learn that public service has become a vehicle to riches. For all his many faults, Donald Trump appeals to disenfranchised Americans because he declares he’s financed his own campaign and admits that a rigged system — exemplified by our federal bankruptcy laws — has worked in his favor. He knows the government system is unfair and claims he wants to change it.

“America was a mobile society for most of the twentieth century,” Buckley says, citing statistics and substantiating his claim with charts and graphs. Trump’s supporters no doubt long for those days of economic mobility that Buckley locates in the exuberant 1950s.

When Trump announces that he wants to make America great again, people stuck at the bottom of the rigid class divide respond with enthusiasm. On a subterranean level, they seem to be hoping that America can once again become a mobile society, a place where a lowly pioneering frontiersman like Abraham Lincoln (Buckley’s favored symbol of social and economic mobility) can rise from humble beginnings to become the President of the United States. Buckley believes that “the central idea of America, as expressed in the Declaration [of Independence], became through Lincoln the promise of income mobility and a faith in the ability of people to rise to a higher station in life.”

Class structure is more settled in America than in much of Europe. Yet America has always defined itself against the European traditions of monarchy, aristocracy, dynasty, and inherited privilege. Buckley states that “America and Europe have traded places.” The trope of the American Dream is about rising out of your received station in life to accomplish great things for yourself and your posterity. What would it mean if U.S. citizens were to envy, instead, the European Dream? What if America is now the country of privilege, not promise? If the American financial and economic situation remains static, we’ll learn the answers to these questions the hard way.

Perhaps the most interesting and unique feature of Buckley’s book is his embrace of Darwinian theory — including the genetic study of phenotypes and kin selection — to explain why American aristocrats combine to preserve their power and restrain the middle and lower classes. In short, people are hard-wired to ensure the survival of their kind, so they pass on competitive advantages to their children. “American aristocrats,” Buckley submits, “are able to identify each other through settled patterns of cooperation called reciprocal altruism.” People organize themselves into social groups that maximize the genetic fitness of their biological descendants. If certain advantages are biologically heritable, then “a country would have to adopt punitive measures to handicap the gifted and talented in order to erase all genetic earnings advantages.”

Eugenics measures were popular during the Progressive Era, before we learned about the horrors of Nazi genocide and eugenics, but surely the Left does not want to return to such inhumane and homicidal practices to realize their beloved ideal of equality. Yet Buckley reveals — more subtly than my summary suggests — that biological tampering is the only way for egalitarians to transform their utopian fantasies into a concrete reality.

To those who might point out that Buckley, a tenured law professor living in the handsome outskirts of D.C., is himself a member of this self-serving aristocracy, Buckley declares that he’s a traitor to his class. Without bravado or boast, he presents himself as the rare altruist who recognizes the net gains realized through reasonable cooperation among disparate groups.

Trump and Ted Cruz ought to have Buckley’s book on hand as they make their final case to the electorate before this summer’s convention. Buckley explains why conservatives, libertarians, and Republicans alike should care about economic mobility and inequality. By ignoring the problem of economic disparity, he warns, “the Republican establishment has handed the Democrats a hammer with which to pound it.” Buckley identifies the types of cronyism and economic barriers to entry that have caused social immobility and inequality. To resolve our troubles, he advocates “easy pieces of useful and efficient legislation” that he dubs his “wish list.”

The final section of his book describes this “wish list” and sketches what Americans can do to reinvigorate their economy and make their country mobile again. By facilitating educational choice and charter schools, streamlining the immigration system, curtailing prosecutorial overreach and the criminalization of entrepreneurship, and cutting back on the financial regulations, tax loopholes, and corporate laws that are calculated to benefit rather than police those at the top, Americans can bring back the conditions necessary for the proliferation of individual liberty and prosperity — or, in Buckley’s words, restore the promise of America.

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Claire Hamner Matturro Reviews Robert Bailey’s “Between Black and White”

In Arts & Letters, Book Reviews, Books, Creative Writing, Fiction, Humanities, Justice, Law, Law-and-Literature, Literature, Novels, Southern Literary Review, Southern Literature, The Novel, The South, Writing on June 15, 2016 at 6:45 am

ClaireHamnerMatturroforSoLitRev

Claire Hamner Matturro, a former lawyer and college teacher, is the author of four legal mysteries with a sense of humor. Her books are Skinny-Dipping (2004) (a BookSense pick, Romantic Times’ Best First Mystery, and nominated for a Barry Award); Wildcat Wine (2005) (nominated for a Georgia Writer of the Year Award); Bone Valley (2006) and Sweetheart Deal (2007) (winner of Romantic Times’ Toby Bromberg Award for Most Humorous Mystery), all published by William Morrow. She remains active in writers’ groups, teaches creative writing in adult education, and does some freelance editing. Visit her at www.clairematturro.com.

The review originally appeared here in Southern Literary Review.

Following the success of his powerful debut legal thriller, The Professor (Thomas & Mercer 2015), Bailey offers a second, stunning story in the series. In his novel Between Black and White (Thomas & Mercer March 2016), Bailey establishes beyond doubt that he is an author to be read and reckoned with.

Between Black and White is closely tied to Bailey’s first book and involves several of the same characters. In The Professor, readers were introduced to aging former law professor Tom McMurtrie, who returns to the courtroom after being forced out of his teaching position at The University of Alabama School of Law. Tom teams up with Rick Drake, an impetuous young attorney and his one-time student. Together, in The Professor, Tom and Rick pursue a tense and dangerous wrongful death lawsuit.

While Tom and Rick dominate The Professor, another lawyer—Bocephus Haynes, or Bo—steps into that story at critical times to boost and support Tom. Bo is a bigger than life black University of Alabama football star who blew out his knee and, instead of retreating into depression over the loss of a pro football career, goes to law school. Tom is one of his professors, and the two develop a close friendship.

As much as The Professor was Tom and Rick’s story, Between Black and White is Bo’s story. In the prologue, we meet Bo as a five-year-old who watches members of the Ku Klux Klan lynch his beloved father. From the opening pages of Chapter One—which finds a disheartened, angry Bo getting drunk on the anniversary of his father’s brutal lynching—to the shocking, violent conclusion, Bo leaps off the pages with boldness and spirit. But like all well-crafted fictional heroes, he is flawed, and his failings land him in a courtroom as the sole defendant in a capital murder case.

His near fatal flaw: hunger for revenge. Obsessed with punishing the man who lynched his father, Bo shapes his professional life around that goal. After graduating with honors from The University of Alabama School of Law, Bo turns down offers at prestigious law firms. He returns to his home town, Pulaski, Tennessee, to a solo law practice as the city’s only black attorney—and to pursue the man he holds responsible for his father’s death. Too many people in the city of Pulaski know Bo is driven by his fixation to punish the man he blames for his father’s lynching. His wife has even left him because his drive to avenge his father’s murder has endangered their two children.

Since Bo was five years-old, he has blamed Andrew Davis Walton, a powerful businessman in Pulaski, for his father’s death. Once the Imperial Wizard of the Tennessee Knights of the KKK, Walton shook off the robes of the Klan and made millions in the stock market. Known as the “the Warren Buffett of the South,” he tried to make amends for his Klan actions.

Yet people have a long memory when it comes to the Klan—and no one more than Bo. Though Walton was hooded the night five-year-old Bo witnessed the lynching, Bo recognized Walton’s voice. But no one in law enforcement was ever willing—then or later—to prosecute Walton on the testimony of a child claiming to identify a voice.

On the 45th anniversary of his father’s lynching, Bo gets drunks in a local bar. Walton and Maggie, Walton’s aging, beautiful wife and one of the local landed aristocracy, seemingly accidentally run into Bo in the bar. Face to face with Walton, Bo threatens him in front of witnesses by quoting the Old Testament’s “eye for an eye.”

After the bartender breaks up the confrontation, Walton steps outside. But before Bo leaves the bar, Maggie returns to tell him that Walton is dying. She asks that Bo leave her terminally ill husband alone. Bo staggers out, lamenting to himself that Andy Walton was going to die before he could bring him to justice.

That night, someone shoots Walton and stages a mock lynching at the site where Bo’s father was lynched four and a half decades before.

Physical evidence points directly at Bo. Everyone in the legal community knows he had the motive and opportunity. Even before Bo recovers from his hangover, he is in jail. The prosecutor, a fierce woman attorney who has butted heads with Bo in court before, decides to seek the death penalty.

Pulaski was the birthplace of the Ku Klux Klan, and many residents and officials in the city strive to live that down. So when the murder, with its roots in the old KKK lynching, puts Pulaski and its Klan heritage back in the spotlight of national media, city officials attempt to pressure Bo to plead guilty and avoid the further media circus of a trial.

Bo refuses. He is innocent of murdering Walton—or so he claims, though no one in law enforcement believes him. He calls on his former law professor and close friend, Tom, to defend him. Reluctantly, Tom agrees and retains local attorney Raymond “Ray Ray” Pickalew, another former U of A football player. Rick, who is now Tom’s law partner, is dragged into the case as well.

Though Tom and Rick sense a setup, they struggle against multiple roadblocks—and the overwhelming physical evidence of Bo’s guilt—to determine who had a motive to kill Andy Walton and frame Bo. During their quest, Tom is assaulted and sidelined by his injuries; Ray Ray is a drunk with an attitude, and young. Overwhelmed Rick is left to unravel the seemingly unrelated pieces of a complex, emotional puzzle. Villains from The Professor return to taunt and threaten Tom and Rick, adding further intricacy to the plot.

Thus, Bailey sets up the classic formula of a legal thriller. Mind you, formula is not used as a derogatory term here. Shakespeare’s sonnets were formula and critics do not dismiss them in disparaging terms. As used here, formula simply refers to the structure and elements that define a genre or a literary style. In a legal thriller where the focus is on a criminal defendant on trial for his or her life, readers expect the odds to be stacked against the defendant. They expect the defense attorneys to be complicated, troubled, overwhelmed and conflicted. And, owing perhaps to the Perry Mason standard, readers expect a surprise witness and revelation near the close of the trial which allows the defense attorneys to prevail and the defendant to be found not guilty.

There are, of course, notable exceptions to this basic formula. Lincoln Lawyer and A Time to Kill come to mind. Both of those legal thrillers had guilty defendants, yet with vastly differing twists at the end.

Given the formulaic elements at play in the genre, a successful legal thriller author has to avoid creating a stale, mechanical plot that reads like a written version of a paint-by-number canvas. Yet the author has to keep the plot within the confines of the genre or publishers will scratch their heads and throw the manuscript on the reject pile.

In other words, authors working within a prescribed genre face a kind of delicate yet vicious circle. On the one hand, they must write within the parameters of their chosen genre. But, on the other hand, they have to do something new, exciting and fresh. It’s kind of like saying: Color within the lines. But don’t color within the lines.

Within this catch-22, the author has to give the reader something more—and something different. This Bailey does, and does with a bang.

Yet, having said that much, to say much more about the surprising, original twists of Between Black and White risks spoiling the plot. Thus, this reviewer will only observe that per the Perry Mason/John Grisham model, an unexpected witness with a startling revelation does pop up at the end of the trial. But just when the reader settles back to relax and believe that justice has been achieved, something complicated, violent and utterly surprising happens.

It isn’t just that Bailey knows how to surprise us, but he also writes well. Very well. Make no mistake on that point. His sentences are clear, clean, distinctive, and when they need to hit with a punch, they do. His pacing is excellent—an edge-of-the-seat, can’t-put-it-down momentum fuels the storyline from the prologue to the climatic ending. His characters are well-drawn, his sense of place and world-building excellent. The plot is intricate, but believable. There is redemption for some characters, resolution for others—and those that deserve neither are left to flounder in their own hell. Justice is achieved, albeit in a confused, violent way.

In short, Bailey wrestles what in less talented hands could have been a formulaic story into something wholly fresh, engaging, and ultimately rich and satisfying. This is a book you want to own and read.

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Claire Hamner Matturo Reviews Robert Bailey’s “The Professor”

In Arts & Letters, Book Reviews, Books, Fiction, Humanities, Justice, Law, Law-and-Literature, Literature, The Novel, Writing on May 25, 2016 at 6:45 am

ClaireHamnerMatturroforSoLitRev

Claire Hamner Matturro, a former lawyer and college teacher, is the author of four legal mysteries with a sense of humor. Her books are Skinny-Dipping (2004) (a BookSense pick, Romantic Times’ Best First Mystery, and nominated for a Barry Award); Wildcat Wine (2005) (nominated for a Georgia Writer of the Year Award); Bone Valley (2006) and Sweetheart Deal (2007) (winner of Romantic Times’ Toby Bromberg Award for Most Humorous Mystery), all published by William Morrow. She remains active in writers’ groups, teaches creative writing in adult education, and does some freelance editing. Visit her at www.clairematturro.com

This review originally appeared here in Southern Literary Review.

Move over, John Grisham, there’s a new kid on the legal thriller playing field.

Robert Bailey, an Alabama trial attorney and graduate of The University of Alabama School of Law, returns the kickoff for a 100 yard touchdown with his debut novel, The Professor. The football reference is apropos as the protagonist of The Professor was a member of Alabama’s famous 1961 National Champion football team, and the book opens with a guest appearance by venerated Alabama football coach, Paul “Bear” Bryant. Alabama’s 1961 national championship was the first of the six that Bear Bryant would win as head coach of the Crimson Tide, and the fighting spirit of that 1961 team resounds throughout the novel.

But one does not need to be a football fan or even a fan of legal thrillers to enjoy Bailey’s book as its writing is smooth, captivating and, in all the right places, emotionally moving—all the more impressive in that Bailey only took a single creative writing class while an undergraduate at Davidson College. According to Bailey, “We wrote four short stories, and the critiques I received were mostly positive.  It was definitely a confidence builder and a whole lot of fun.”

How did he go from taking just one creative writing class to writing a riveting debut of a legal thriller?

In law school, Bailey served on the law review, an honor generally reserved for those who can write well. Yet there is a football field of difference in writing an analytical, academic, footnoted and blue-booked law review article and composing an edge-of-your-seat legal thriller.

The bridge, then, between writing like a lawyer and writing like a top-drawer novelist was part inspiration, part studying other novels, and part the hard work of rewriting, redrafting, and revising. Bailey’s inspiration came from growing up in Alabama as a Bear Bryant fan and from wanting to write about a brash young “bull-in-a-china-shop” new attorney—a character whose experiences resemble Bailey’s own days straight out of law school. As for studying other legal thrillers and books, Bailey has said, “Yes, I have learned a lot from reading other novels.  Also, Stephen King’s instructional memoir, On Writing, was a big influence and inspiration.” And as for the hard work of revision and rewriting—it took Bailey eight years to finish The Professor, though he was practicing law, trying cases, and raising a family at the same time.

Bailey, a history major and a Huntsville, Alabama, native, is quite the Bear Bryant fan and a football historian. These personal interests enrich The Professor and play into Bailey’s creation of the lead character, Professor Thomas Jackson McMurtrie.

In some ways McMurtrie, the protagonist, is an unusual leading man. For one thing, he is 68 and his glory days on the famous Alabama football team of 1961 are long behind him. He faces serious health issues, mourns his late wife, and has been unfairly manipulated out of his position as an evidence professor at the University of Alabama School of Law into an unwanted early retirement. One of his former students—and a man he had called a friend—was complicit in the scheme to push him out as a law professor, and the betrayal wounds McMurtrie deeply.

Yet, in other ways, McMurtrie is the ideal leading man—for one thing his skills and instincts as a trial attorney form the perfect balance to his headstrong, volatile former student, Rick Drake, when they take on a trucking company in a wrongful-death case. McMurtrie, named after Thomas “Stonewall” Jackson, epitomizes what we would want in both a leading man and a lawyer—he is somewhat of a modern Atticus Finch, albeit with some different demons. Bailey writes in his author’s notes that he wanted to create a character that was a “man of exceptional integrity, strength, and class.” This Bailey has done.

Rick Drake, the lawyer version of a yin to McMurtrie’s yang, is more of what readers might expect in legal thrillers. A young lawyer, brash, over his head, yet passionate about his client and the case, Drake has more gumption and zeal than skills. He needs the experience and even temperament of McMurtrie. Drake also needs an expert in evidence, and McMurtrie literally wrote the textbook on evidence law in Alabama.

But here’s the rub: Drake and McMurtrie have a turbulent history. Drake was McMurtrie’s law student and the two came to blows—literally—after Drake hotheadedly dashed his trial advocate team’s chances of winning a national trial competition. McMurtrie was the team’s coach. After a video of the angry clash between the professor and the student was posted on YouTube, a conniving new dean at the law school used the incident as part of his plan to push McMurtrie out of his tenured position.

So, let’s just say Drake and McMurtrie are not best friends.

Yet each man knows the value of the other. Drake has the vigor McMurtrie fears is waning in himself. And McMurtrie has decades of knowledge and the calm, deliberate skills Drake lacks.

Thus, out of these conflicts and contrasting personalities, the characters of McMurtrie and Drake form an integral part of what makes The Professor work so well. This is a book about people, vividly drawn and fully realized, overcoming obstacles within themselves—as well as obstacles placed in their way by unscrupulous others.

Superb writing and engaging protagonists, though, are not the only things that make this debut so compelling. This is a bam-bam-bam book as far as plot goes, with plenty of action in and out of the courtroom. In the opening chapters, there is a horrific and fiery automobile crash, betrayal, suicide, murder, blackmail and enough suspense to keep the reader turning pages all night. There’s a good reason Winston Groom, author of Forrest Gump and another Alabama writer, calls The Professor “[g]ripping from the first page to the last.”

In a tightly woven plot that unfolds naturally in well-paced scenes, McMurtrie refers a former girlfriend (from the days before his marriage) to Drake for representation in a wrongful-death action after her granddaughter, daughter and son-in-law slam into a speeding eighteen-wheeler and die. McMurtrie recommends that she retain Drake in part because Drake grew up in the town where the lawsuit will be tried and McMurtrie believes in the home-court advantage. Yet McMurtrie also believes Drake can win the case—and he wants to help the struggling lawyer.

The defendant trucking company’s owner is an unscrupulous yet tough adversary who has the power to pervert the quest for hard evidence. Drake and McMurtrie have to prove in a court of law what they know is true—the trucking company had a consistent, deliberate pattern of forcing its truckers to speed in order to clock more miles and make more money for the company. Yet the trucking company’s owner doesn’t play by any rules, which gives him an apparent upper hand in disposing of key witnesses and the paper trail of evidence. Compounding the pressure on Drake and McMurtrie, the trucking company’s attorney is none other than McMurtrie’s former friend who betrayed him and helped oust him from his teaching career.

The stakes go beyond money. The plaintiff wants the world to know the truth about the accident—that her family died because of a concerted, greedy corporate plan that turned its eighteen-wheelers into dangerous weapons.

McMurtrie wants to avenge himself against his former friend and later betrayer, and he wants to help his former girlfriend. Not incidentally, he hopes to prove that even at 68, “The old bull still has a little gas in the tank.” And, maybe, he hopes to get his job as a law professor back. He definitely wants to help Drake and set matters right between them.

Yet in some ways, Drake is the one who has the most at stake. The YouTube of his shoving contest with McMurtrie painted him as an uncontrollable hothead and cost him his position at a big law firm. He is barely earning his rent as a solo practitioner. He questions himself. If Drake is going to survive as an attorney, he needs a courtroom victory. But beyond building his career, he needs to get right in his own head and prove he is capable of being a winning trial attorney—one who will not blow up and ruin the case as he did during the law school trial team competition. Drake is a young man, not fully formed as a man or an attorney, and this trial will make or break his maturation.

The trial scenes resonate with realism. Naturally so, given that the author is a practicing attorney and a shareholder with the law firm of Lanier Ford in Huntsville. Interestingly enough, the author defends—among others—trucking companies. Similar to his character Drake, Bailey was a winner in trial advocacy competitions while in law school.

The Professor introduces the character of Bocephus Haynes, McMurtrie’s favorite former student. Bocephus plays an important yet secondary role in the story as ally and emotional support, but he is set to return in a leading role in the sequel, Between Black and White. A third manuscript, now in the works, will take Drake and McMurtrie back to Tuscaloosa, and Drake’s story line and growth as a character will be explored further and in more detail.