Trial Magazine

The Great Dissenter: The Story of John Marshall Harlan, America’s Judicial Hero

By Peter S. Canellos
Simon & Schuster
www.simonandschuster.com
624 pp.; $32.50

In this biography of the post-Civil War U.S. Supreme Court justice, longtime Politico editor Peter Canellos considers how Harlan arrived at his prescient dissents in Plessy v. Ferguson, Lochner v. New York, and the Civil Rights Cases. Calling the Constitution “colorblind,” adding that it “neither knows nor tolerates classes among citizens,” Harlan’s words foreshadowed the 20th century’s civil rights movement and push to end segregation. Canellos homes in on Harlan’s relationship with the remarkable Robert Harlan, who was of mixed race but raised as a member of the Harlan household, and how Robert’s presence in the justice’s life had a huge impact on his ideological views and his Supreme Court appointment. Robert Harlan, as the leading Black Republican in Ohio, fought tirelessly for legislation granting Black people equal access to inns, restaurants, theaters, public transit, and more.

Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights

By Erwin Chemerinsky
W.W. Norton
https://wwnorton.com
384 pp.; $27.95

Constitutional scholar Erwin Chemerinsky, in a historical look at U.S. Supreme Court jurisprudence on policing, posits that by favoring the interests of law enforcement over individuals, the Court has violated the Constitution’s intent, empowered police departments, and legitimized “racialized policing.” After years of judicial silence on police misconduct and a brief expansion of constitutional rights in the 1960s, the Court has dialed back protections for individuals repeatedly, says Chemerinsky. Because of this, he adds, suspects undergoing interrogation have little protection from coercion, false eyewitness identifications continue to lead to convictions for innocent people, and those who are injured—or even die—from police misconduct have little recourse. Meaningful reform requires the Court to recognize its failings, Chemerinsky says, or the enactment of federal and state laws to protect citizens’ rights.

The Sea We Swim In: How Stories Work in a Data-Driven World

By Frank Rose
W.W. Norton
https://wwnorton.com
304 pp.; $25.95

According to tech writer Frank Rose, the narrative is key to communicating ideas, motivating people, and guiding decision-making. And because throughout history stories have been “weaponized,” Rose says, we must understand how they work and how we can “create better stories to counter them.” By engaging in “narrative thinking,” we can look to tools used by professional storytellers such as novelists, journalists, and filmmakers to strengthen our own storytelling capabilities. Rose lists nine elements of a story—author, audiences, journey, character, world, detail, voice, platform, and immersion—and explores each in turn with examples ranging from marketing campaigns to court cases. And as smartphones and social media increase the “noise” around us all, Rose argues, it is even more important to know how to harness this digital data and take charge of a story.

Taking Down Backpage: Fighting the World’s Largest Sex Trafficker

By Maggy Krell
NYU Press
https://nyupress.org
192 pp.; $22.95

Former criminal prosecutor Maggy Krell recounts how her suspicions while handling prostitution cases as a young attorney eventually resulted in efforts to hold internet giant Backpage accountable for its role in sex trafficking. Krell saw young women arrested and charged with prostitution who appeared to have little choice in the matter—they had no money, no address, and looked “numb and lifeless.” In 2004, when human trafficking laws were in their infancy, Krell, then a deputy district attorney in San Joaquin County, Calif., took the novel strategy of going after a motel owner for aiding and abetting prostitution. With the motel shut down, she kept fighting—following the money and, as supervising deputy attorney general at the California Department of Justice, working to shut down Backpage and amend federal law so online platforms could no longer claim immunity.

The Intricacies of Dicta and Dissent

By Neil Duxbury
Cambridge University Press
www.cambridge.org
288 pp.; $39.99

In this look at common-law judgments, British legal scholar Neil Duxbury explores why judges digress and make observations that go beyond what is necessary to resolve a case and when and why judges choose to write dissenting opinions. Duxbury contends that all dicta is not alike and that there is “mere” dicta, “weighty” dicta, and final court dicta that may even be treated as precedential by lower courts. And dissents, he says—which may not impact the case at hand but can allow future courts to cast doubt on precedent—must be understood in context. Duxbury suggests judges may be more likely to write dissenting opinions under certain conditions, such as when the court’s panel size is larger and other judges are likely to sign on, when the majority is overruling precedent, or when the court is not overburdened with a heavy caseload.