RECENT PUBLICATIONS THE BATTLE OVER SCHOOL PRAYER:…

                  RECENT PUBLICATIONS
THE BATTLE OVER SCHOOL PRAYER: HOW ENGEL V. VITALE
CHANGED AMERICA. By Bruce J. Dierenfield. Lawrence, Kan.:
University Press of Kansas. 2007. Pp. xv, 263. $15.95. Forty-five
years ago, religious conservatives decried the Supreme Court's decision
in Engel v. Vitale, which struck down as unconstitutional the use of a
Board of Regents-adopted, nondenominational prayer in New York's
public schools. The Battle over School Prayer offers a detailed account
of the factual circumstances surrounding the Engel case, and provides
historical context for the importance of the decision in our nation's on-
going attempts to balance religious and public life. Vivid anecdotes
give emotional effect to a concise yet comprehensive history of the
complicated relationship between public education and religion since
the colonial period. Professor Bruce Dierenfield explains the conflict
as not merely religion versus irreligion, but as majority Protestant
Christianity versus minority religions or sects such as Catholicism, Ju-
daism, and Jehovah's Witnesses. To accompany this social history,
Professor Dierenfield discusses important legal milestones, both pre-
and post-Engel, in the courts' church-state jurisprudence. This read-
able book provides an engaging overview of a complex legal issue, and
makes a convincing case that, rather than harming religious exercise as
critics feared, Engel v. Vitale has served to protect religious freedom.

DEMOCRACY AND THE POLICE. By David Alan Sklansky. Stan-
ford, Cal.: Stanford University Press. 2008. Pp. x, 269. $24.95. The
proper balance between freedom and security is an enduring struggle
for any democracy. In this timely new book, Professor David Sklansky
adds an original and insightful dimension to this continuing conversa-
tion. Drawing upon the diverse literature of political theory and
criminal justice, Professor Sklansky explores the contours of American
"democratic policing," which he describes as an attempt to "reconcil[e]
law enforcement with the principles of a democratic society" (p. 189).
Professor Sklansky first examines the complex relationship between
two seemingly unrelated intellectual transformations in the second half
of the twentieth century -- the integration of police forces and the rise
of community policing, and the triumph of participatory and delibera-
tive democracy over interest group pluralism. He then discusses some
of the many suggested avenues for reform by studying these move-
ments in tandem, from racial profiling to the "war on terror" to the
proliferation of private security firms. By embracing the nuanced
questions his subject raises, Professor Sklansky aids politicians and
scholars alike in their ongoing endeavor to make the police truly
democratic.


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2008]                   RECENT PUBLICATIONS                         2271

FREEDOM'S ORPHANS: CONTEMPORARY LIBERALISM AND THE
FATE OF AMERICAN CHILDREN. By David L. Tubbs. Princeton,
N.J.: Princeton University Press. 2007. Pp. x, 233. $27.95. In the
post­World War II era, evolving concepts of liberalism have sparked
controversy about the rights of adult citizens to sexual privacy, to mar-
riage with whom they want, and to freedom of expression. Professor
David Tubbs's thought-provoking new book argues that concern about
the welfare of American children has been largely missing from these
debates, and more generally from the project of leading theorists of
liberalism such as Isaiah Berlin, Susan Okin, and Ronald Dworkin.
The Supreme Court, too, is guilty of this omission: Professor Tubbs ar-
gues that the Court's concentration on adult liberty has led it to strike
down restrictions on the use of contraceptives while ignoring the role
such restrictions can play in promoting goals such as traditional
marriage and two-parent families.         Likewise, the Court's First
Amendment jurisprudence has been insufficiently attuned to the im-
pact of obscene speech on children. The trenchant questions that
Freedom's Orphans raises about contemporary liberalism's potentially
misplaced priorities are ones that readers of any political orientation
would do well to consider.

HUMAN RIGHTS AND THE PRIVATE SPHERE: A COMPARATIVE
STUDY. Edited by Dawn Oliver and Jörg Fedtke. New York:
Routledge-Cavendish. 2007. Pp. x, 594. $65.00. Globalization and
the increasing power of private corporations over the past few decades
pose challenging questions for the protection of human rights. As pri-
vate entities grow in power, questions of horizontal rights protection --
between non-state actors -- become as important as traditional verti-
cal protections -- between citizens and the state. In Human Rights
and the Private Sphere, Professors Dawn Oliver and Jörg Fedtke join
a number of other scholars in presenting a detailed analysis of the legal
mechanisms available in fourteen countries for protecting individual
citizens' civil and political rights against encroachment by private enti-
ties. Professors Oliver and Fedtke also provide a comparative analysis
of the jurisdictions, and conclude that ordinary legislation protecting
individual rights in the private sphere may be more effective than con-
stitutions outlining broad schemes of rights protection. The book con-
cludes with country-by-country charts outlining the effects in the pri-
vate sphere of rights-protection mechanisms illustrated with a few
examples from case law. With its rigorous analysis and interesting
comparative framework, this book should be useful to scholars and
practitioners alike as they engage with what is becoming an increas-
ingly important area of human rights law.
2272                    HARVARD LAW REVIEW                    [Vol. 121:2270

OBJECTIVITY AND THE RULE OF LAW. By Matthew H. Kramer.
New York, N.Y.: Cambridge University Press. 2007. Pp. xiii, 247.
$27.99. To what extent are judges merely conduits for required out-
comes, mechanically applying the law to yield the correct conclusion?
In this focused and fluid new book, Professor Matthew Kramer ex-
plores the full terrain of that important question. Professor Kramer
disentangles the complicated notion of objectivity into six distinct con-
ceptions, and differentiates the rule of law -- the set of conditions nec-
essary for any functioning legal system -- from the Rule of Law -- a
moral judgment entrenched in the liberal-democratic tradition. He
concludes that "every dimension of legal objectivity is indispensable
for the rule of law and the Rule of Law" (p. 231). The strength of this
compelling account is Professor Kramer's effortless interweaving of
positive and normative analysis, which ultimately determines that ob-
jectivity and the rule of law are underdeveloped values, but neverthe-
less ones "for which [all] legal-governmental officials should strive" (p.
100). Though the principal audience of this book will be students of
philosophy, law, and political science, Professor Kramer's clear prose
welcomes lawyers and scholars who seek a fuller understanding of the
relationship between the rule of law and objectivity.

ORIGINALISM, FEDERALISM, AND THE AMERICAN CONSTITU-
TIONAL ENTERPRISE: A HISTORICAL INQUIRY. By Edward A.
Purcell, Jr. New Haven, Conn.: Yale University Press. 2007. Pp. x,
301. $45.00. In the latest response to originalism, Professor Edward
A. Purcell, Jr., argues that there was no common agreement among the
Founders about the nature of federalism. As a result, the Constitution
is best read as a set of "animating ideals" (p. 200) rather than specific
directions -- in fact, Professor Purcell suggests that the characteristics
of American federalism inherently prevented the Constitution from
providing a "`correct' federal system" (p. 191). Although the book's
aim is to attack originalism, it shines most as a brisk reading of
American history. Professor Purcell's constitutional story is less about
formalistic interpretation than the madcap interplay of "strategic con-
stitutional interpretation[s]" (p. 34), and the partisans who offer them.
His America is populated by states that vie for immigrants, towns that
bicker over bridges, representatives who brawl on the House floor,
presidents who grope blindly for power, academics who meddle in na-
tional politics, and even judges who lobby unseen for legislative goals.
Yet Professor Purcell eludes the easy trap of cynicism: his subjects are
self-interested, conniving, transparent, and bold, but also very human
and very familiar. As he shows, it was these subjects and the genera-
tions that followed them whose fundamental principles, rather than
particular words, shape constitutional interpretation today.