Books

Anthony G. Amsterdam, Martin Guggenheim & Randy Hertz, Trial Manual for Defense Attorneys in Juvenile Delinquency Cases (ABA rev. ed. 2013).

Kwame Anthony Appiah, Lines of Descent: W. E. B. Du Bois and the Emergence of Identity (Harvard Univ. Press 2014).

Research Handbook on the Economics of Torts (Jennifer Arlen ed., Edward Elgar Publ’g 2013).

Vicki L. Been, Roderick M. Hills, Robert C. Ellickson & Christopher Serkin, Land Use Controls: Cases and Materials (Wolters Kluwer 4th ed. 2013).

Oscar G. Chase & Robert A. Barker, Civil Litigation in New York (LexisNexis 6th ed. 2013).

Jerome A. Cohen & Margaret K. Lewis, Challenge to China: How Taiwan Abolished Its Version of Re-education Through Labor (U.S.-Asia Law Institute, N.Y.U. School of Law, Berkshire Publ’g 2013).

Critical Legal Perspectives on Global Governance: Liber Amicorum David M. Trubek (Gráinne de Búrca et al. eds., Hart Publ’g 2013).

Norman Dorsen & Catharine DeJulio, The Embattled Constitution (N.Y.U. Press 2013).

Balancing Wealth and Health: The Battle over Intellectual Property and Access to Medicines in Latin America (Rochelle C. Dreyfuss & César Rodríguez-Garavito eds., Oxford Univ. Press 2014).

Intellectual Property at the Edge: The Contested Contours of IP (Rochelle C. Dreyfuss & Jane C. Ginsburg eds., Cambridge Univ. Press 2014).

Ronald Dworkin, Religion Without God (Harvard Univ. Press 2013).

Harry T. Edwards et al., Federal Standards of Review: Review of District Court Decisions and Agency Actions (Thomson West 2d ed. 2013).

Richard A. Epstein, The Classical Liberal Constitution: The Uncertain Quest for Limited Government (Harvard Univ. Press 2013).

The Challenge for Collective Bargaining: Proceedings of the New York University 65th Annual Conference on Labor (Michael Z. Green ed., Samuel Estreicher series ed., LexisNexis 2013).

Forum Shopping in the International Commercial Arbitration Context (Franco Ferrari ed., Sellier European Law Publishers 2013).

Franco Ferrari & Marco Torsello, International Sales Law—CISG in a Nutshell (West 2014).

Harry First, John Flynn & Darren Bush, Free Enterprise and Economic Organization: Antitrust (Foundation Press 7th ed. 2014).

The Design of Competition Law Institutions: Global Norms, Local Choices (Eleanor M. Fox & Michael J. Trebilcock eds., Oxford Univ. Press 2013).

Clayton P. Gillette, Robert S. Amdursky & G. Allen Bass, Municipal Debt Flaw: Theory and Practice (Wolters Kluwer 2d ed. 2013).

Clayton P. Gillette & Steven D. Walt, The UN Convention on Contracts for the International Sale of Goods: Practice and Theory (LexisNexis 2013).

Ryan Goodman & Derek Jinks, Socializing States: Promoting Human Rights Through International Law (Oxford Univ. Press 2013).

Moshe Halbertal, Maimonides: Life and Thought (Princeton Univ. Press 2013).

Helen Hershkoff, Arthur R. Miller, John E. Sexton & Jack H. Friedenthal, Civil Procedure: Cases and Materials (West 11th ed. 2013).

Helen Hershkoff & Arthur R. Miller et al., 11A Federal Practice and Procedure (West 3d ed. 2013).

Helen Hershkoff & Arthur R. Miller et al., 14A, 14D, 15 Federal Practice and Procedure (West 4th ed. 2013).

Corine Pelluchon, Leo Strauss and the Crisis of Rationalism: Another Reason, Another Enlightenment (Robert Howse trans., SUNY Press 2014).

Robert Howse, Michael Trebilcock & Antonia Eliason, The Regulation of International Trade (Routledge 4th ed. 2013).

Making Legal History: Essays in Honor of William E. Nelson (Daniel J. Hulsebosch & R.B. Bernstein eds., N.Y.U. Press 2013).

Geoffrey P. Miller & Fabrizio Cafaggi, The Governance and Regulation of International Finance (Edward Elgar Publ’g 2013).

Geoffrey P. Miller, Richard Scott Carnell & Jonathan R. Macey, The Law of Financial Institutions (Wolters Kluwer 5th ed. 2013).

Geoffrey P. Miller, The Law of Governance, Risk Management, and Compliance (Wolters Kluwer 2014).

The Health Care Case: The Supreme Court’s Decision and Its Implications (Nathaniel Persily, Gillian E. Metzger & Trevor W. Morrison eds., Oxford Univ. Press 2013).

Liam B. Murphy, What Makes Law: An Introduction to the Philosopy of Law (Cambridge Univ. Press 2014).

William E. Nelson, The Common Law in Colonial America, Volume II: The Middle Colonies and the Carolinas, 1660–1730 (Oxford Univ. Press 2013).

The Globalization of Cost­-Benefit Analysis in Environmental Policy (Richard L. Revesz & Michael A. Livermore eds., Oxford Univ. Press 2013).

David A.J. Richards, Resisting Injustice and the Feminist Ethics of Care in the Age of Obama: “Suddenly, . . . All the Truth Was Coming Out” (Routledge 2013).

David A.J. Richards, The Rise of Gay Rights and the Fall of the British Empire: Liberal Resistance and the Bloomsbury Group (Cambridge Univ. Press 2013).

Daniel L. Rubinfeld & Robert S. Pindyck, Microeconomics (Pearson 8th ed. 2013).

Gender, National Security, and Counter-Terrorism: Human Rights Perspectives (Margaret L. Satterthwaite & Jayne C. Huckerby eds., Routledge 2013).

Samuel Scheffler, Death and the Afterlife (Niko Kolodny ed., Oxford Univ. Press 2013).

Deborah H. Schenk & Michael J. Graetz, Federal Income Taxation: Principles and Policies (Foundation Press 7th ed. 2013).

Deborah H. Schenk & Shari H. Motro, The Income Tax Map: A Bird’s-Eye View of Federal Income Taxation for Law Students (West 12th ed. 2013).

John E. Sexton, Thomas Oliphant & Peter W. Schwartz, Baseball as a Road to God: Seeing Beyond the Game (Gotham Books 2013).

Daniel N. Shaviro, Fixing U.S. International Taxation (Oxford Univ. Press 2014).

Linda J. Silberman, Allan R. Stein & Tobias Barrington Wolff, Civil Procedure: Theory and Practice (Wolters Kluwer 4th ed. 2013).

Alan O. Sykes, John H. Jackson & William J. Davey, Legal Problems of International Economic Relations: Cases, Materials and Text (West 6th ed. 2013).

Alan O. Sykes & Eric A. Posner, Economic Foundations of International Law (Harvard Univ. Press 2013).

For chapters, articles, and more, view the complete list.

Q: You describe a transformational figure with tremendous ambition, but whose project was not received the way he would have liked it to be received.


A: Maimonides wanted to be the last word on this organism, the Talmud. But his codification work was a colossal failure because his great literary act ended up adding more material for Talmudists to interpret. What survives is an alternative voice. It’s a brave attempt that didn’t succeed in transforming the tradition, but it succeeded in adding to it a rare powerful voice.

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Ryan Bubb

In the year before he joined NYU Law in Fall 2010, Ryan Bubb worked as a policy analyst for Cass Sunstein, then the “regulatory czar” for President Obama. The position gave him an insider’s view of what would become Sunstein’s legacy as head of the Office of Information and Regulatory Affairs (OIRA): the incorporation of the “nudge approach” into federal policy that attempts to preserve freedom of choice by encouraging but not mandating people to do everything from saving for retirement to using less gas.

Richard Pildes

Richard Pildes, Sudler Family Professor of Constitutional Law, has focused his recent scholarship on such things as voting rights and national security, but also has a deep background in regulatory law. In 1995, he and Sunstein co-authored “Reinventing the Regulatory State,” a seminal article on the topic, and Pildes helped develop NYU Law’s required first-year course Legislation and the Regulatory State. In 2008, just as the financial crisis was unfolding, he wrote a piece criticizing the nudge approach to regulation of mortgages and consumer credit products.

Over sushi in late 2012, Bubb, who has a PhD in economics from Harvard, said that he wasn’t a fan of the nudge approach, which is rooted in behavioral economics; Pildes said he suspected that bridging political differences, rather than social science, was driving its popularity. “It was one of these wonderful, fortuitous moments of unexpected connection that came out of nowhere,” Pildes recalls. “He had no idea that I had had some of these views, and I had no idea that he was skeptical in similar sorts of ways.”

Their resulting paper, “How Behavioral Economics Trims Its Sails and Why,” drew immense attention. Even before publication, the draft was downloaded from SSRN more than 800 times. It also received a response from Sunstein, who, with his former boss Peter Orszag, director of the Office of Management and Budget (of which OIRA is a part) during the first Obama administration, wrote a column for Bloomberg View that describes the criticism as “not a persuasive critique of nudges in general.”

Readers can judge for themselves. Bubb and Pildes attack what is often cited as the poster child of nudging’s success: the automatic enrollment approach to retirement saving. With this kind of policy, workers automatically default into their company’s savings plan, such as a 401(k), but can opt out. Previously, workers had to opt in to be enrolled. While increasing retirement savings participation, Bubb says in an interview, the policy “has actually been a stunning failure” because the overall amount saved for retirement has declined.

The reason: Most companies set the automatic default contribution at an insufficient three percent of salary, and many workers who would have contributed much more under a traditional opt-in plan instead stick with the default, Bubb and Pildes write.

Nudge tools like default settings only preserve “an illusion of choice that few people exercise rather than give consumers meaningful choice,” says Bubb. Further, the approach “artificially excludes” potentially more effective regulatory mandates to achieve political consensus.

The savings default rate should have been set higher, but policymakers “are afraid that might look too coercive,” Pildes says in an interview. While more research is needed, the authors write, “it might be that automatic enrollment has so far exacerbated, rather than eased, the retirement savings problem.”

Given the poor financial choices people sometimes make, the professors say in many cases the best policy could be to mandate certain actions.

Noting that the nudge approach has taken hold across a broad political spectrum, Bubb says, “My hope is that many people after reading our piece will start thinking much harder about choice-limiting policies that are arguably better able to correct the problems in many of these areas.”

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In her inaugural Segal Family Professorship of Regulatory Law and Policy lecture last November, Barkow examined the utility of her framework, arguing that while the criminal justice system is a regulatory one, it does not incorporate the same checks on its power as other regulatory systems—to criminal justice’s detriment. “The idea would be to start using data to make decisions, as opposed to just people’s gut instinct,” says Barkow in an interview.

“That could apply across a range of criminal justice decision-making points, from prosecution to sentencing to policing to clemency.”

Barkow pointed to an absolutism in the regulation of criminal behavior that sets it apart from other regulatory realms. “It’s essentially zero tolerance for any risk,” she said in her lecture. “One story, and politicians are willing to take an entire program down without considering whether the program, on net, brings more benefits than it has costs and whether it reduces risks overall…. We don’t approach any other area of government regulation this way,” she said, drawing contrasts with, for instance, vaccines, environmental policy, and financial regulation.

Willie Horton, a convicted murderer in Massachusetts who escaped while on weekend furlough to rape a Maryland woman and beat her spouse, is an example of how one awful story can derail a government program without closer analysis of whether the risks of the program are outweighed by the benefits it brings. George H. W. Bush successfully invoked Horton during the 1988 presidential campaign to attack Massachusetts Governor Michael Dukakis as being soft on crime. Since then, programs have not been rationally assessed in terms of costs and benefits but are discarded if they pose any risk to politicians for Horton-like stories.

The focus on harsher criminal punishments in recent decades originated in concern over rising violent crime rates in the 1960s and 1970s. Barkow argues, however, that even as those numbers stabilized, the crackdown expanded to a wider range of crimes and criminals: “The question is, do long sentences make sense for nonviolent offenders?”

With an administrative law scholar’s attention to the structure and creation of an agency, Barkow thinks about how to design a criminal justice agencyto avoid conflicts of interest and cognitive biases, while also considering everyone affected. For example, crime victims are critical stakeholders, Barkow says, but asserts that “the way we usually address their needs is to pass some symbolic legislation that actually doesn’t help them at all.” Enhancing safety to create as few victims as possible is the best first step, she says, along with bolstering resources to help victims restore their own lives. For instance, when New Mexico abolished its death penalty, it redirected the savings to a victim restitution fund.

Different kinds of criminal justice reforms could call for different solutions, she adds. In the case of clemency, an advisory agency in the Office of the White House Counsel or somewhere in the Office of the President, rather than in the Department of Justice, would help avoid the conflict-of-interest issues inherent in having the DOJ both prosecute individuals and later weigh in on their pardons, as is now the case.

Barkow notes growing bipartisan support for less draconian, more data-based criminal justice approaches, including the Fair Sentencing Act in 2010, which reduced the disparity in sentencing for possession of crack versus powder cocaine, and a greater emphasis on cost-benefit analysis like that performed by the Washington State Institute for Public Policy.

“At the end of the day,” says Barkow, “government is supposed to keep people safe and solve problems. Some of these things backfire and don’t promote public safety, and they’re expensive to boot.” She says she is not coddling criminals, but instead asking a more practical question: How do you promote public safety in the most efficient, data-supported way? “That is a political debate that can be had without costing people elections,” Barkow says. “In fact, it can win people elections.”

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Dean Trevor Morrison has written extensively on this topic throughout his career. Drawing on that scholarship in his inaugural lecture in May for the Eric M. and Laurie B. Roth Professorship of Law, Morrison argued that practice-based law, emerging from historical tradition, sets important—if sometimes informal—boundaries on presidential power. As Morrison put it, privileging historical practice in discerning the boundaries of presidential power can help protect against the notion that the president’s actions are somehow beyond the law’s reach—or, as former President Nixon claimed, “When the president does it, it means it’s not illegal.”

Morrison cited a number of examples in his lecture, including President Obama’s January 2012 “recess appointment” of several individuals to executive branch positions. The Constitution’s Recess Appointments Clause gives the president the power to “fill up all vacancies that may happen during the recess of the Senate,” without waiting for the “advice and consent” of the Senate that is typically required for senior executive branch appointments. As Morrison explained, historical practice has played a significant role in how this power has been understood over time. For decades, presidents have invoked the power to fill vacancies during not just intersession recesses of the Senate (that is, recesses between official sessions of Congress) but also some intrasession recesses (that is, breaks in the middle of a session of Congress). For just as long, executive branch legal offices like the Justice Department’s Office of Legal Counsel (OLC) have advised presidents that intrasession recess appointments are within their power, provided the recesses are of a sufficient length (generally, at least 10 days). And the Senate, for its part, has not voiced any collective objection to the legality of intrasession appointments.

In a case challenging the legality of President Obama’s 2012 recess appointments, the US Court of Appeals for the DC Circuit rejected the historical practice-based understanding of the recess appointment power, preferring instead a narrower understanding that, it said, was dictated by the text of the Recess Appointments Clause. On that narrower view, the recess appointment power extended only to intersession recesses.

Morrison noted that if the Supreme Court were to accept the DC Circuit’s understanding, it would upset decades of presidential practice. He also explained that the Supreme Court could accept the historical practice-based understanding and still strike down President Obama’s 2012 appointments, on the grounds that they went beyond the circumstances covered by historical practice. In June, the Court reached precisely that conclusion. The decision illustrates Morrison’s point that, when applied carefully, a historical practice-based approach can accommodate traditional arrangements for how government has long been conducted while still imposing constraints on the president.

Constraining the president is more difficult when his actions are unlikely to face judicial review, as is often the case in matters relating to war and foreign affairs. Morrison, however, challenged the notion that in the absence of a court, no executive branch legal office can ever realistically constrain the president. Executive offices like OLC are not immune from political pressure, but they have adapted a number of practices and norms that give them a certain degree of independence and credibility. And it is in the interest of the president, Morrison stressed, for offices like OLC to preserve their independence: When OLC issues an opinion defending the legality of a given presidential action, its relative independence is what makes its opinion so valuable.

The key point underlying all of this, Morrison explained, is that seeming to act unlawfully carries tremendous political cost for the president. Presidents thereby have an incentive to be able to defend their actions as lawful—not simply sensible or desirable from a policy or moral perspective. Indeed, the fact that presidents invariably seek to justify their actions in legal terms illustrates the influence of law. And that influence, Morrison insisted, can operate as a constraint—as long as the press, Congress, the legal profession, and civil society pay attention to how the president defends his actions, and call him to account when those defenses fall short.

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In late January, Beebe expounded on his views in “Intellectual Property Law and the Problem of Aesthetic Progress,” his inaugural lecture as the John M. Desmarais Professor of Intellectual Property Law. Aesthetic progress is an admittedly murky concept. In both statutes and case law, the stated purpose of intellectual property law is to promote progress in the arts and sciences. For scientific and technological knowledge, progress means improving on the last thing, making something more efficient, or building something that replaces something new. Progress in the arts, however, doesn’t mean that the works of Picasso are better than cave drawings, Beebe said. Instead, the art is often something totally new and different, and part of the reason the artist creates it is for the joy of doing so. That creative process, however, has no value under current law.

The Intellectual Property Clause empowers Congress “to promote the Progress of Science and useful Arts” through the provision of copyright and patent rights. But strangely missing from this constitutional language is any reference to the fine arts, which qualify neither as “science” nor as “useful Arts” (technology). Why, Beebe wonders, might the framers have taken pains to exclude the fine arts in this context?

The early 20th century “would have been an especially appropriate time for intellectual property law progress,” Beebe said in his lecture. But the opportunity was missed. In 1903, the Supreme Court held in Bleistein v. Donaldson Lithographing Co. that circus advertisements could receive copyright protection even if they were not fine art. Rather than opening the door to further discussion of aesthetic progress, however, the opinion turned out to be a “conversation-stopper” on the topic, said Beebe.

“For two centuries, we have viewed copyright law essentially as industrial policy with long-term accumulation as its goal,” Beebe said. And while he conceded that that’s a good thing, he added: “We also need to view it as cultural policy with short-term, even immediate, aesthetic experience as its competing goal.”

That doesn’t mean that judges should engage in “aesthetic discrimination,” nor does copyright law need to be turned on its head, said Beebe. “But I am suggesting that we have every right ourselves, as the crowd, to promulgate a form of copyright law” that might be more lenient in consideration of how works are treated now, he said. For example, Beebe suggested, it might be time to revisit enforcement of the reproduction right that gives copyright holders the sole right to reproduce their work and might prevent, say, the cute-cat video maker from using images and clips of others’ work to include in his own.

Opening up the conversation about aesthetic progress and what it means could lead to tweaks to copyright law that are more in line with today’s hands-on approach to cultural commentary, Beebe said. In other words, in the age of Web 2.0, it’s high time to reassess the impact of a more-than-century-old precedent.

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Langille, who is pursuing this inquiry in her doctorate at the University of Toronto’s Faculty of Law, is one of 14 recipients of a 2014 Trudeau Foundation Scholarship, the most prestigious award of its kind in Canada. This marks the third Trudeau Scholarship given to an NYU Law graduate in as many years; previous recipients include Lisa Kerr LLM ’09, JSD ’13 and Emily Kidd White LLM ’09, JSD ’15.

This scholarly undertaking allows Langille to combine her impressive background in philosophy, political science, international relations, and the law. Before receiving her JD from NYU Law, Langille studied philosophy and political science as an undergraduate at the University of Toronto and received an MPhil in international relations as a Commonwealth Scholar at the University of Oxford.

Langille will return to NYU Law in Fall 2014 as a Furman Academic Fellow. “Jo is an incredibly astute and hardworking person with broad intellectual interests,” says Barry Friedman, Jacob D. Fuchsberg Professor of Law and faculty director of the Furman Fellows program. “I’m thrilled to welcome her back to NYU next year as a Furman Fellow.”

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“It’s a history book in the sense that it looks at the past, but the analysis is always largely—and in some places exclusively—legal,” Silberstein-Loeb says. “It’s about property told through the lens of business history.”

Making use of the AP’s newly opened institutional archives, Silberstein-Loeb investigated whether the development of news agencies such as the Associated Press, Britain’s Press Association, and Reuters stemmed from the need to exert proprietary control over news reports in the absence of any intellectual property rights that could be exerted over journalistic output.

The trick for the AP, the author explains, was to balance the competing objectives of exclusivity and cooperation while avoiding accusations of monopoly and the resulting regulation.

In the end, he concludes that newspapers’ cooperative attempts were probably more helpful than harmful. “It’s a relevant argument for the news industry now,” says Silberstein-Loeb.

“A lot of discussion about the Internet and the problems associated with maintaining property online—music, publishing, news—has people moving away from property rights, copyright, things like that, and suggesting that contracts and licenses may be a better way in which to control these rights.”

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Last September, the Deloitte University Leadership Center for Inclusion—an initiative of Deloitte University in Westlake, Texas—released a white paper co-authored by Yoshino and their managing principal Christie Smith, entitled “Uncovering Talent: A New Model for Inclusion.” Yoshino and Smith hypothesized that the pressure to “cover” prevents members of minority groups—as well as some straight white men—from bringing their authentic selves to work, and that this affects job satisfaction.

“Underrepresented groups pay a tax, which we call covering, in which they are asked to downplay their identity in order to fit into the mainstream,” Yoshino said at the 14th annual Korematsu Lecture last April, at which he presented the data produced through this initiative.

Yoshino credits Erving Goffman with naming this phenomenon in his 1963 book Stigma: Notes on the Management of Spoiled Identity. Goffman used Franklin D. Roosevelt as an example: To take attention away from his disability, the president would “cover” by having himself seated behind a desk prior
to meeting with advisers.

Yoshino has long had an interest in this topic. His 2006 book Covering: The Hidden Assault on Our Civil Rights was praised in the New Yorker: “Exploring the history of civil-rights litigation in the United States, Yoshino concludes that courts have too often focused on individuals’ capacity to assimilate, rather than on the legitimacy of the demand that they do so.” Five colleges have assigned this award-winning book as a first-year read for all incoming students.

Yoshino and Deloitte’s survey asked respondents whether they covered along four axes: appearance, affiliation, advocacy, and association. One respondent shared a memory of affiliation-based covering: “Even though I am of Chinese descent, I would never correct people if they made jokes or comments about Asian stereotypes.”

The white paper’s results included 3,129 respondents from seven industries; a shorter version was published in March in the Harvard Business Review. The white paper corroborated what Yoshino had discussed in his book: A majority of employees surveyed—61 percent—felt pressure to cover some facet of their identities at work. Even 45 percent of the straight white men admitted to covering aspects like age and mental health issues. “The question was not whether they were included, but on what terms they felt their inclusion rested,” Yoshino and Smith wrote in the white paper. “These individuals felt they had to work their identities alongside their jobs.”

Yoshino and Smith say change must come from the top. While half of survey respondents said they felt pressured to cover by both company leadership and company culture, the real damage happened when leadership emphasized covering. Of the 53 percent who said they felt pressured to cover by leadership, a whopping 50 percent of them said it undermined their dedication to the organization. “Individuals leave managers, not organizations,” Yoshino observed.

As a result, the co-authors have proposed the Uncovering Talent model, a series of steps that organizations can follow to reevaluate what they communicate to employees about covering. For example, an organization can legitimately ask employees to engage in appearance-based covering like requiring business attire, but may also decide that employees should not have to cover their family responsibilities, such as needing to leave the office to attend a parent-teacher meeting.

The next step, Yoshino and Smith emphasized, is for management to change their own behavior at work. As one survey respondent put it, “Leaders have to uncover first. If they don’t, we won’t.”

When employees can bring their real selves to work, the results are promising. The white paper reported that 21 percent of respondents had “uncovered”—with positive results. “Once I decided to bring my whole self to work,” one said, “it was liberating and I became a lot more productive and successful.”

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“This book is no exposé,” Jacobs, Chief Justice Warren E. Burger Professor of Constitutional Law and the Courts, pointedly writes in Gotham Unbound: How New York City Was Liberated from the Grip of Organized Crime (1999). It is no secret that the Mob’s corrupting hand has been deep in the pockets of big cities coast to coast since the 1920s, he says. Yet complicit or indifferent functionaries and politicians allowed the Mob to become intractable for generations before a series of relatively recent prosecutions in New York. “The same organized crime families have engaged in the same type of exploitation for much of the 20th century,” Jacobs notes in Mobsters, Unions, and Feds: The Mafia and the American Labor Movement (2006).

Jacobs sees some of the same indifference toward organized crime from his fellow scholars. Filling that void, he has crafted an unequaled scholarly corpus and essential historical record of modern Mob prosecutions. His five organized crime books—some coauthored with NYU Law students—feature lucid analysis of litigation and brisk histories of how the Mob flourished in such traditional strongholds as labor, trucking, construction, the garment industry, and waste hauling. In Gotham Unbound, he gently prods his peers: “We hope that this book will make it more difficult for urban scholars, whatever their discipline, to ignore the importance of organized crime in the 20th-century lives of American cities.”

Most popular Mafia books use the familiar narrative template of a colorful mobster taken down by a shrewd cop or a tenacious prosecutor. Jacobs does not write that sort of personalized history. Instead, he stacks one sturdy fact atop another, building a foundational record with extensive footnotes and references that will serve future scholars. He begins his treatment of each crime racket with a terse account of how and why organized crime had managed to thrive in a particular industry. In Gotham Unbound, for example, he describes how the Mafia’s corrupting grip on the Fulton Fish Market on the lower Manhattan waterfront was leveraged on two Mafia pillars: unions and transportation:

Workers, Smoked Fish and Cannery Union…. The Genovese crime family created loading and unloading cartels, maintained interests in some wholesaling companies, operated ‘security services,’ and organized and charged for parking…. As with the other mobbed-up industries examined in this book, Cosa Nostra functioned as a kind of legislature, court, and police force for the market. The rules covered competition, prices, labor relations, payoffs, and respect.”

Following an organizational template he uses in many of his books, Jacobs returns to the fish market later in Gotham Unbound to examine how organized crime was crowbarred out—in this case, with a combination of a federal racketeering prosecution and a new local law that added government oversight to the market’s operation. (Rudolph Giuliani ’68 was US attorney during the prosecution, and the law passed after he was elected mayor.) Jacobs is “a diligent and thorough researcher who tackles very complicated subjects and writes clear and engaging analyses,” says a former research assistant, Lauryn Gouldin ’00, assistant professor at Syracuse University College of Law.

Legal scholars agree that Jacobs has created an essential archive of key Mob prosecutions. “For two decades, he has produced detailed and careful case studies which are individually quite valuable and cumulatively provide a history of instrumental law enforcement of great importance,” Franklin Zimring of the University of California, Berkeley, School of Law says of Jacobs. “You can’t study this history without bumping into this cumulative bibliography around every new corner you turn.”

Jacobs began studying crime at the University of Chicago Law School, where he was a research assistant to Norval Morris, influential co-author of The Honest Politician’s Guide to Crime Control. Shortly after joining NYU Law in 1982, Jacobs was put in charge of analytics in an investigation of the mobbed-up New York construction industry by the NYS Organized Crime Task Force. That experience “redefined my career,” he says. “It put me on a set of issues about organized crime that I have stayed with.”

“No one had ever really had the academic entrepreneurial idea to record the accurate details of these organized crime investigations,” says a former student, C. Alexander Hortis ’99, a litigator with Venable in Baltimore. Jacobs contributed an introduction to Hortis’s 2014 book, The Mob and the City: The Hidden History of How the Mafia Captured New York.

Prolific and eclectic in his interests, Jacobs has written books on prisons, drunk driving, corruption, hate crime, and gun control. In 2012, Jacobs received a Guggenheim Foundation fellowship to work on a forthcoming book, The Eternal Criminal Record.

Jacobs says he feels compelled to return soon to his familiar themes, with possible projects on ethnic organized crime and more recent Mob prosecutions. The pool of material seems bottomless and, to Jacobs, the importance of his work is clear: “These [Mafia prosecutions] will be lost to history unless someone puts them on the record.”

The Gang of Five

Breaking the Devil’s Pact: The Battle to Free the Teamsters from the Mob (2011; with Kerry T. Cooperman)

Mobsters, Unions, and Feds: The Mafia and the American Labor Movement (2006)

Gotham Unbound: How New York City Was Liberated from the Grip of Organized Crime (1999; with Coleen Friel ’97 and Robert Radick ’97)

Busting the Mob: United States v. Cosa Nostra (1994; with Christopher Panarella ’94 and Jay Worthington ’01)

Corruption and Racketeering in the New York City Construction Industry (1991; with Ronald Goldstock, Martin Marcus, Thomas D. Thacher II)

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