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October Book of the Month: To End a Presidency

End PresidencyTo End a Presidency: The Power of Impeachment
By Laurence A. Tribe and Joshua Matz
Reviewed by Tony Pelczynski, Reference Assistant

In a recent New York Times book review of an entirely different book, law professor Josh Chafetz identified a nascent literary strain of Constitution-focused popular books that has proliferated since the 2016 presidential election: the “this-book-is-about-timeless-constitutional-truths-not-about-Trump-wink-wink subgenre.” To End a Presidency: The Power of Impeachment, by Laurence A. Tribe and Joshua Matz, is no such book. Its first line reads: “Impeachment haunts Trumpland,” and from there, pedal is firmly put to metal. There is no winking in To End a Presidency—it is crystal clear whose presidency the book’s title is contemplating.

While the topic of presidential impeachment is almost always politically polarizing, if not politically motivated (at least in contemporary times), Tribe and Matz deftly and skillfully run through impeachment’s Constitutional framework and history with a minimum of partisan fireworks. While impeachment is enshrined in the Constitution, a removal option reserved for “treason, bribery, or other high crimes and misdemeanors” committed by high-ranking officials, the Framers left the process largely undefined. As the authors point out, this may be chalked up to the usual series of legislative compromises and accommodations that underlie any such attempt to hammer out a foundational legal document. But in large part, this was also by design, as the Framers understood that as the United States grew and evolved, actions that might constitute impeachable offenses in 1789 might not look the same in, say, 2018 (and vice versa).

Tribe and Matz hold lucid opinions regarding the topic of Donald Trump’s impeachability, and they are not hesitant to express them. However, while the book’s pace is quick and the tone urgent, the authors repeatedly remind the reader that even though the threat of impeachment has, in recent decades, been treated as a political tool, no president has ever been directly removed by the impeachment process, and so we simply do not know what the implications of such a removal might be (of course, Richard Nixon likely came the closest to removal, but resigned before the impeachment process could actually run its course). Whatever one thinks of Trump, the authors seem to be saying, and because impeachment is such a grave option, we ought to think long and hard before invoking the process in a fit of partisan pique. As they note, there are other ways of obstructing the President’s agenda (including Congressional action/inaction), short of the “nuclear” option of impeachment.

white house

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Of course, in the modern era, the gravity of the impeachment process has never slowed down Congressional calls for its implementation. Prior to Nixon, presidential impeachment attempts were relatively rare. Post-Nixon, the specter of impeachment has been invoked against every subsequent president, with varying degrees of seriousness and plausibility. From calls to remove Gerald Ford for his pardon of Nixon, to attempts to strip Barack Obama of his presidency for the supposed “birth certificate issue” (Blake Farenholtz) and what the authors term claims of “unspecified ‘thuggery’” (hello, Michele Bachmann!), Tribe and Matz spotlight the seemingly never-ending parade of modern-day partisan calls for impeachment. While such demands have most often functioned as a form of political grandstanding, the impeachment process became truly weaponized during the impeachment trial of Bill Clinton, a weaponization that has taken root in American politics, and from which, the authors fear, the American political process may never fully recover.

With impeachment talk currently permeating any discussion of Trump’s presidency, apparently within even Trump’s own administration (see the New York Times’ recent “I Am Part of the Resistance” anonymous op-ed; or reports of Deputy Attorney General Rod Rosenstein’s attempted recruitment of Trump cabinet members willing to invoke the 25th Amendment), those advocating for, or considering, Trump’s impeachment would be wise to peruse To End a Presidency, before the United States heads down a road from which it may never be able to turn back. If, at some point in the near future, impeachment proceedings become inevitable, due to either partisan tribalism or a genuine presidential threat to the nation and its rule of law, one hopes that the authors’ calls for caution and contemplation will have been heeded. In a time of inflamed political passions, Tribe and Matz have written a sober and well-researched discussion of the history surrounding, and the pitfalls of blithely invoking, a wrenching political process with which the nation has had little actual experience.

To End a Presidency was generously donated to the Library by Suzanne P. Marria.

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Book Review: The Clean Water Act Handbook

Clean Water Act 4thThe Clean Water Act Handbook, 4th
Edited by Mark A. Ryan
Reviewed by Courtney Nguyen, Reference Librarian

With current attacks on clean water protections for rivers, lakes, streams, and other waters still making headlines, the Clean Water Act (CWA) is as relevant today as ever. Learn more about one of our most important environmental law statutes in The Clean Water Act Handbook (4th), edited by Mark A. Ryan. The contributors reflect a thoughtful balance of public and private sector attorneys, all experts in the CWA, and topics range from the broad (enforcement) to the narrow (calculating Total Maximum Daily Loads in accordance with section 303(d)). The handbook begins with the historical background of the CWA, tracing its origins from the Rivers and Harbors Appropriation Act of 1899 (the first federal statute governing water pollutions control) to the 1972 act itself, which was passed in response to a flood of litigation concerning sources discharging pollutants, as well as growing public awareness. Once grounded in the historical context of the act, the book then moves on to tackle the essentials of the various collaborative federal and state programs which have risen up to regulate water pollution.

nature water blue abstract

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The purported goals of the CWA are eliminating pollutant discharges and providing fishable and swimmable waters, and the handbook addresses each item and related issues in turn, including explanations on implementing regulations and guidelines. The threshold (and still contentious) question of what constitutes “Waters of the United States” (WOTUS) which the act protects gets its own chapter, as do the National Pollutant Discharge Elimination System (NPDES), Publicly Owned Treatment Works (POTWs), Section 311 Oil and Hazardous Substances Spills, the types of activities considered “discharges of dredged or fill material,” enforcement, whether civil judicial, civil administrative, criminal, or citizen suits, and how the CWA applies to federal facilities. In the absence of congressional amendments, the scope of the CWA is still being discussed by the courts, and later chapters discuss the powers and limitations of judicial review, as well as the influence exerted by successive administrations in Washington.

Even if you live in an arid, landlocked part of the country, the CWA still matters since the act affects the economy, industry, politics, technology, and much more. This handbook serves as both a practical tool for practitioners as well as a good introduction for the interested citizen to this ever-evolving statute. Though the CWA hasn’t been amended since 1990, the act is still heavily litigated, debated, and reinterpreted, so staying on top of changes is crucial. Come read this and other environmental law titles (such as The Clean Air Act Handbook) at the Library today!


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September Book of the Month: The Clean Air Act Handbook

Clean Air Act 4th

The Clean Air Act Handbook (4th)
Edited by Julie R. Domike and Alec C. Zacaroli
Reviewed by Courtney Nguyen, Reference Librarian

The air we breathe may be free, but that doesn’t mean it still isn’t regulated. Nearly five decades old, the Clean Air Act (CAA) remains one of the most significant pieces of environmental legislation in the United States, and it is still the only available tool for regulating greenhouse gas emissions that cause climate change. To help practitioners and concerned citizens alike understand this complex statute, the Library has The Clean Air Act Handbook (4th), edited by Julie R. Domike and Alec C. Zacaroli. The contributing authors bring their collective years of public and private sector experience and knowledge of the CAA, and many were even involved in the development of the very statutes and regulations discussed in the book. From the beginning of modern air pollution control laws in the postwar era, to the minutiae of current permitting processes, this book covers the entire act in twenty comprehensive chapters. Some of the topics discussed include National Ambient Air Quality Standards (NAAQS), the Visibility Protection Program designed to protect scenic vistas in our state parks and wilderness areas, State Implementation Programs (SIPs), Hazardous Air Pollutants (HAPs), and civil and criminal enforcement. Perhaps of particular interest to Californians are the chapters about global climate change/greenhouse gas (GHG) emissions and the regulation of motor vehicles, including the seminal 2007 Supreme Court case Massachusetts v. EPA. The authors also point you towards related documents, such as the legislative history of the CAA or the EPA’s administrative records, which can be found for free online or maybe even at your local law library.

photo of blue sky

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The authors believe that practitioners who master the basic CAA policies and tools available, as laid out in the book, will find solutions to most CAA problems. Though intended as a reference resource and tool for CAA practitioners and the more general environmental practitioner in need of a quick CAA tutorial, the handbook is clear and straightforward enough to appeal to any interested citizen as well. You will gain a solid foundation for understanding environmental current events (of which there seem to be many), and will learn to tell your HAPs from your SIPs.

The Clean Air Act is the intersection of law, politics, science, technology, economics, and everyday life, and changes can happen very quickly or possibly not at all. The act affects both the regulated/corporate community and the public, and anyone with computer access can participate in rulemakings, monitor workshops, apply for a permit, watch webcasts, and send emails to EPA and state agency staff. The editors stress that this book is merely a snapshot of the act in time since the EPA regularly issues new regulations and guidance, and the courts continue to shape the law in the absence of congressional action. So use this book as a starting point. It could give you something to think about the next time you take a breath.


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August Book of the Month: Litigation in Practice

Litigation in PracticeLitigation in Practice
by Curtis E. A. Karnow
Reviewed by Michael Stoler, Reference Assistant


The Honorable Curtis E.A. Karnow has been a judge on the San Francisco Superior Court since 2005, after 28 years as an assistant U.S. attorney, a clerk, and a lawyer in private practice. He has authored the Rutter Group Guide Civil Procedure Before Trial, for which all California litigators owe him a debt of gratitude, and has spoken here at the San Francisco Law Library. Litigation in Practice, published in 2017, is a compilation of articles he had previously published in law journals, with some additional material. He starts with the premise that “while judges remember what it is to practice law, most lawyers have little idea of what it is to be a judge.” So he wants to “bridge that gap,” and give guidance to attorneys from his judicial perspective.

The book is a mix of the practical and the theoretical. Having asserted in his introduction that “law is what happens in the courtroom,” he devotes his first chapter to rules for conduct before the bench. Be polite. Be prepared. Don’t waste the judge’s time or otherwise show disrespect. He discusses how to submit and argue motions, select and treat jurors, and present evidence.

blur close up focus gavel

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The next chapter, on the use of statistics and probability, is fascinating and requires careful reading. Karnow cites examples of claims made in courts about the chances of some event occurring, and then dissects them to show why they don’t hold up mathematically. The next few chapters discuss legal epistemology, based on philosophy and logic: the one on settlement conferences refers to game theory, and one on legal analysis uses theories of categories to argue that really, any case has something in common with every other. The last chapter discusses legal education, how in this country it went from teaching practical skills to emphasizing academic, theoretical ones.

Karnow is a keen observer of the legal system. Attorneys will benefit from reading through this book. And litigators in general might find it will change their thinking about their profession and its processes, and hence, how they practice them.


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July Book of the Month: Neighbor Disputes

Neighbor DisputesNeighbor Disputes: Law and Litigation 
by Todd W. Baxter et al.
Reviewed by Ruth Geos, Reference Librarian


All of us are neighbors and most of us, in this urban setting, have neighbors above, below, next door or across the street. The issues touching our space and property are intensely emotional and can be difficult to negotiate. Some of our neighbors we know only by their first names, but the impact of their actions—by blocking access, encroaching a boundary, creating excessive noise, odor, or light, or undermining property foundations with earth-moving or water issues—can interfere with enjoyment, use, and other protections in living our lives next door. When the lines of communication between neighbors are closed, and impact is serious enough, some of these disputes arise to legal issues, and require consultation with counsel who can evaluate both the legal issue and the possibilities for resolution.

CEB’s Neighbor Disputes: Law and Litigation, available both in print and on CEB OnLaw, offers a specialized guide on how to address neighbor disputes, from the first client consultation through the completion of litigation. The authors emphasize the underlying emotional currents in any dispute between neighbors, and offer practical approaches to try to minimize antagonism both in immediate terms of negotiating a solution and for the long-term future to be able to coexist as neighbors. For example, counsel is advised at the outset of litigation to determine the client’s motivations and expectations in order to shape the course of representation, and to help the client understand the practical, emotional, and legal components of litigation. The authors emphasize that even where the client prevails, the wisdom is that client will not be made whole because they still live in an environment of distrust and anger.

view of city street

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Individual chapters offer an authoritative analysis of neighbor disputes involving easements, encroachments, earth movement, trees, fences, domestic animals, water rights, views, open space, home businesses, solar and wind power, blight, criminal activities, toxic contamination, and noise, odor, light and air. The authors analyze potential causes of action, both statutory and based on common law, along with possible defenses and the various remedies that may be available. Checklists itemize the types of key information and facts to gather to support each cause of action, and a few sample documents are also included, including a sample demand letter requesting abatement of a nuisance.

Neighbor Disputes: Law & Litigation is highly recommended for its unique insight into the issues that challenge neighborhood civility, and for its thorough evaluation of the legal merits and potential for resolution through litigation or alternative means.


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June Book of the Month: Benched

BenchedBenched: Abortion, Terrorists, Drones, Crooks, Supreme Court, Kennedy, Nixon, Demi Moore & Other Tales from the Life of a Federal Judge
by Jon O. Newman
Reviewed by Aaron Parsons, Reference Librarian


In Benched, Justice Jon O. Newman writes candidly about his remarkable career as an attorney, federal trial court judge, and Justice on the U.S. Court of Appeals for the Second Circuit.

With a glowing forward by U.S. Supreme Court Justice Sonya Sotomayor, Justice Newman gives an inside account of how judges think and what they do.

Early in his legal career, Newman clerked for U.S. Supreme Court Chief Justice Earl Warren. He was a high-level staffer in President Kennedy’s administration for what is now the Department of Health and Human Services, where his many assignments included studying health effects related to fallout from Russian nuclear tests. He describes challenges faced as a Senate staffer, and the difficulty of working with different sides in Congress to agree on even non-substantive changes in legislation.

Appointed as the U.S. Attorney for the District of Connecticut, he humbly describes learning on the job while trying civil and criminal cases on issues such as heroin smuggling, enforcing draft evasion statutes during the Vietnam War, civil rights prosecutions, and being whacked with an umbrella by a woman after a takings case.

Justice Newman provides insight into the behind-the-scenes workings of the legal and political system, describing what it’s like to go through the Senate nomination process three times, how judges distribute caseloads, and their negotiation and decision-making processes—such as the preference of some judges to debate with their colleagues through memoranda and not through verbal exchanges. He relates an argument with the late Justice Scalia over statutory interpretation.

His judicial decisions included military drone strikes, a free speech case over school books (among them was Slaughterhouse Five, which prompted a complimentary letter from author Kurt Vonnegut), a law requiring royalties from the book Wiseguy and its movie adaptation, Goodfellas, be distributed to victims, and a case that required interpretation of the Articles of Confederation.

Justice Newman discusses his reactions to the handful of times that the U.S. Supreme Court reversed his Second Circuit opinions, and another when that Court reversed and essentially sided with his dissent. He offers ideas on how to improve the American justice system, including burdens of proof, supervised depositions, and increased use of independent counsel.

Read Justice Newman’s autobiography, and biographies of more judges and attorneys, at the Law Library.


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May Book of the Month: Dissent and the Supreme Court

Dissent and the Supreme CourtDissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue
by Melvin I. Urofsky
Reviewed by Tony Pelczynski, Reference Librarian


Dissent and the Supreme Court, by legal historian and professor of constitutional history Melvin Urofsky, is a dense but lively examination of the evolution of the written dissent in U.S. Supreme Court Constitutional jurisprudence. In less skillful hands, such a topic might not spark much excitement; here, Urofsky manages to keep things moving along briskly enough for the casual reader.

After beginning the book with a relatively brief but informative introduction, including side-trips explaining concurring and “seriatim” (separately-written) opinions, Urofsky traces the history of U.S. Supreme Court dissent largely chronologically, with chapters devoted to particularly significant cases and prolific dissenters (including Louis Brandeis, the subject of a separate Urofsky biography). Early on, Urofsky lays out the historical arguments for and against the very idea of dissenting judicial opinions. To grossly oversimplify, this debate breaks down to something along the lines of: dissent (in the author’s words) “weakens the force of the decision and detracts from the court’s institutional prestige”; versus (quoting Chief Justice Charles Evans Hughes) “[a] dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” The tension between these competing beliefs regarding the role of the judicial dissent, and how that tension has played out on the Court, provides the focus of Dissent and the Supreme Court.

Dissent CourthouseThroughout the book, Urofsky pays particular attention to dissenting opinions that have directly impacted later Supreme Court jurisprudence in areas of universal national concern. For example, he succinctly explains how dissents written in the 1883 Civil Rights Cases provided the analytical framework for the Court’s later upholding of the 1964 Civil Rights Act. Likewise, Urofsky devotes an entire chapter to Brandeis’ famed dissent in Olmstead v. U.S., a 1928 case in which the Court upheld the conviction of a Prohibition-era bootlegger convicted on the basis of what would now be considered illegally-obtained wiretapped telephone conversations. According to Urofsky, Brandeis’ dissent ultimately “reinvented Fourth Amendment jurisprudence,” albeit belatedly, as the Court fully adopted Brandeis’ position and overturned Olmstead completely in 1967.

While the significance and role of the dissenting opinion has waxed and waned over time, we are currently living in an era where, by the author’s accounting, four out of five U.S. Supreme Court decisions include one or more dissenting opinions. And since the book’s original publication in 2015, the Court (and, perhaps, the nation) may have become even more ideologically divided. Clearly, judicial dissent has become a ubiquitous feature of U.S. Supreme Court jurisprudence, and will remain so for the foreseeable future. To help make sense of it all, Urofsky has written a well-researched and highly readable examination of the history of judicial dissent in U.S. Supreme Court jurisprudence, its evolution and function over time, and why it matters.

Dissent and the Supreme Court was generously donated by Shannon K. Mauer of Duane Morris LLP, as part of our February Book Drive.