POWER AND PRECEDENT: THE ROLE OF LAW IN THE UNITED STATES
By Jan G. Deutsch
This book defines law as applied politics and examines United States politics, a government created by Founders who did not believe political parties to be necessary. The book is a course whose lectures set out a jurisprudence applicable to civil and scientific as well as common law. The thesis of the course is that an understanding of the role of precedent in the common law explains both the human condition and what has happened to United States law since the decision in Brown v. Board of Education. The use of questions and dialog within the course involves the reader in the development of a jurisprudence grounded in a philosophy of law.
Jan Ginter Deutsch is the Walton Hale Hamilton Professor Emeritus of Law and Professorial Lecturer in Law at Yale Law School. His subjects are corporations and securities regulations. His books include The Law of Corporations: What Corporate Lawyers Do (with J. Bianco) and Selling the People's Cadillac: The Edsel and Corporate Responsibility. Professor Deutsch was educated at Yale (B.A., LL.B., and Ph.D. in Political Science) with an M.A. from Cambridge.
Paperback, 153 pages
Book gives constitutional insight
By Mike Hoeflich
August 15, 2007
I've just finished reading a new book by a former teacher of mine at Yale. The book's title is "Power and Precedent: The Role of Law in the United States." Its author is Jan Ginter Deutsch, the former Walton Hale Hamilton Professor of Law at the Yale Law School. It is a short book, but it is filled with some remarkable insights that are useful to anyone interested in the current state of American law and government.
Professor Deutsch is a brilliant teacher and scholar who has had a stellar career. He is an emigre who holds degrees from Yale and Cambridge. He has spent virtually his entire professional life at Yale and has inspired thousands of Yale students. Unfortunately, he has not published a great deal, although his one major work before this new book, "Selling the People's Cadillac," is considered a cult classic by those interested in law and corporate culture.
The new book is drawn from Professor Deutsch's lectures at Yale and it is, in many respects, a commentary on much that disturbs Americans about our government today. Professor Deutsch knows the United States Supreme Court well. He served as a law clerk to the late Justice Potter Stewart, and he has studied the court and the development of American constitutional law for more than 40 years.
One section of "Power and Precedent" struck me as particularly important today. That is the section in which Professor Deutsch discusses the constitutional concept of separation of powers. There is no constitutional principle that has been more under siege by the current administration in Washington than this one. President Bush has repeatedly shown his disdain for the notion that there are three equal branches of government and that it is the checks and balances among the three branches that prevent tyranny. In his discussion of this concept, Professor Deutsch reminds his readers that the Founding Fathers were men who had revolted against a monarchical form of government and that the checks and balances created by the separation of powers doctrine was their solution to the problem of how to prevent the rise of monarchical tyranny in the new republic. But the Founding Fathers made an assumption that may today no longer hold true. They assumed that every American, conscious of our heritage of freedom, would have total faith in the importance of maintaining the separation of powers.
Professor Deutsch points out that because of this assumption of a universal faith in this doctrine, the Founding Fathers really didn't provide a specific mechanism to deal with a president who rejected the doctrine and a Congress unwilling to challenge this rejection. Deutsch sums up this insight with brilliant simplicity: "Being an American today thus involves coming to terms with the fact that belief that a system of separation of powers will produce the right result requires an act of faith."
"Power and Precedent" is filled with brilliant insight into the workings of our nation. I recommend it to everyone with an interest in law, politics or political philosophy.
- Mike Hoeflich, a distinguished professor in the Kansas University School of Law, writes a regular column for the Journal-World.