Redish, Martin H. 1945–

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Redish, Martin H. 1945–

PERSONAL:

Born August 16, 1945. Education: University of Pennsylvania, A.B. (summa cum laude), 1967; Harvard Law School, J.D. (magna cum laude), 1970.

ADDRESSES:

Office—Northwestern University School of Law, 357 E. Chicago Ave., Chicago, IL 60611. E-mail—[email protected]; [email protected].

CAREER:

Lawyer and educator. Proskauer Rose Goetz & Mendelsohn, New York, NY, associate, 1970-71; University of Michigan, Ann Arbor, visiting professor of law, 1971-73; Stanford University, Stanford, CA, visiting associate professor, 1977; Cornell University, Ithaca, NY, visiting associate professor, 1987-88; Northwestern University School of Law, Chicago, IL, assistant professor, 1973-76, associate professor, 1976-78, professor, 1978-90, Louis and Harriet Ancel Professor of Law and Public Policy 1990—. Mayer, Brown, Rowe & Maw, special counsel.

MEMBER:

Phi Beta Kappa.

AWARDS, HONORS:

L. Hart Wright Outstanding Teacher Award, University of Michigan; Robert Childress Memorial Award for Teaching Excellence, Dean's Teaching Award, First Year Course Professor Award, and Student Bar Association Faculty Appreciation Award, all from Northwestern University.

WRITINGS:

Legislative Response to the Medical Malpractice Crisis: Constitutional Implications, American Hospital Association (Chicago, IL), 1977.

The Constitutionality of Medical Malpractice Reform Legislation: A Supplemental Report, American Hospital Association (Chicago, IL), 1978.

Federal Jurisdiction: Tensions in the Allocation of Judicial Power, Michie (Indianapolis, IN), 1980, 2nd edition, 1990.

Federal Courts: Cases, Comments, and Questions, West Publishing (St. Paul, MN), 1983, 6th edition, Thomson/West (St. Paul, MN), 2007.

Freedom of Expression: A Critical Analysis, Michie (Charlottesville, VA), 1984.

Federal Jurisdiction ("Blackletter Series"), West Publishing (St. Paul, MN), 1985, 3rd edition (with Richard D. Freer), 2004.

(With Richard L. Marcus and Edward F. Sherman) Civil Procedure: A Modern Approach, West Publishing (St. Paul, MN), 1989, 4th edition, Thomson/West (St. Paul, MN), 2005.

The Federal Courts in the Political Order: Judicial Jurisdiction and American Political Theory, Carolina Academic Press (Durham, NC), 1991.

(With Edward Brunet and Michael A. Reiter) Summary Judgment: Federal Law and Practice, Shephard's/McGraw-Hill (Colorado Springs, CO), 1994, 3rd edition, Thomson/West (St. Paul, MN), 2006.

The Constitution as Political Structure, Oxford University Press (New York, NY), 1995.

(With Linda S. Mullenix and Georgene Vairo) Understanding Federal Court Jurisdiction, Matthew Bender (Albany, NY), 1999.

Money Talks: Speech, Economic Power, and the Values of Democracy, New York University Press (New York, NY), 2001.

The Logic of Persecution: Free Expression and the McCarthy Era, Stanford University Press (Stanford, CA), 2005.

SIDELIGHTS:

Martin H. Redish is a widely respected authority on constitutional law, particularly on the freedom of expression. He is also an admired expert in matters of federal jurisdiction and civil procedure. He has written more than seventy articles and fifteen books. Among his several law texts are Federal Jurisdiction: Tensions in the Allocation of Judicial Power, which went into a second edition in 1990, and Federal Courts: Cases, Comments, and Questions, which went into its sixth edition in 2007. Redish's Federal Jurisdiction, a volume in the "Blackletter Series," has also gone into several editions, the third of which Redish wrote with Richard D. Freer. Redish's Civil Procedure: A Modern Approach, written with Richard L. Marcus and Edward F. Sherman, has gone into four editions since 1989, and Summary Judgment: Federal Law and Practice, which Redish wrote with Edward Brunet and Michael A. Reiter, went into its third edition in 2006.

As the Louis and Harriet Ancel Professor of Law and Public Policy at Northwestern University School of Law, Redish has held visiting faculty appointments at Stanford Law School, the University of Michigan Law School, and the Cornell University Law School. Redish received the L. Hart Wright Outstanding Teacher Award from the University of Michigan, as well as numerous awards from Northwestern University, including the Robert Childress Memorial Award for Teaching Excellence, the Dean's Teaching Award, the First Year Course Professor Award, and the Student Bar Association Faculty Appreciation Award.

In Freedom of Expression: A Critical Analysis, a collection of five essays, Redish presents a critique of scholarship on the First Amendment. As Ruth Walden observed in a Journalism Quarterly review of the book, such a task is a "formidable" one. Redish argues that, in Walden's words, "a workable protectionist theory of freedom of expression must allow for significant judicial discretion and case-by-case analysis." Redish dismisses arguments that seek to categorize free expression according to broad and inflexible principles, such those identified by Thomas Emerson and Alexander Meiklejohn. Rather than this categorical approach, Redish argues that First Amendment cases should be decided by "the compelling interest analysis." In other words, courts must never intervene to restrict free expression unless this expression presents "a significant danger to a truly compelling societal interest."

In an analysis that Walden found particularly strong and persuasive, Redish writes that the primary importance of the right to free expression is not that it provides a basis for successful self-government but that it allows "individual self-realization." For this reason, Redish argues against First Amendment analysis based on any determination of the worth of the expression itself.

Redish subjects the Constitution's "Dormant Commerce Clause" to scrutiny in The Constitution as Political Structure, As Redish explains, the clause basically allows the Supreme Court to strike down legislation that could impede interstate commerce—a circumstance that Redish believes interferes with the Court's responsibility to maintain governmental separation of powers, and which thus renders the clause illegitimate. Reviewing the book in the American Political Science Review, William Gangi observed that "Redish challenges those constitutional scholars who contend, on the one hand, that the Supreme Court should not intervene in political structure and separation of powers issues … but, on the other hand, insist that its ‘paramount purpose … is to protect individual rights.’" The Constitution's framers, Redish argues, did not share this belief; they not only limited the powers of the federal government, but also distributed them among the three branches so as to ensure a balance of powers. Calling Redish's analysis "rich in detail, complex in argument and thorough in approach," Gangi went on to comment that Redish "is not afraid to struggle openly with the tensions created by competing constitutional values, and perhaps most importantly, he accepts the principle that ‘at some point in the process of constitutional interpretation, immediate political objectives must give way to the broader goals of American constitutional and political theory…. [One] must be willing to accept the loss of individual political battles in order to win the political-constitutional war.’ … Redish identifies substantive issues, argues his position convincingly, and as a result, frequently prompts serious reflection from his reader."

In his Constitutional Commentary review of The Constitution as Political Structure, Richard W. Murphy noted: "This book's greatest strength is its often devastating critique of the Court's federalism jurisprudence. Professor Redish persuasively argues that the Court should protect residual state sovereignty by enforcing real limits to the Commerce Clause rather than by grafting meaning onto the tautological Tenth Amendment."

Money Talks: Speech, Economic Power, and the Values of Democracy considers how the First Amendment ap- plies to businesses and other economically powerful entities. In an argument that American Prospect writer Dave Denison likened to "the kind of firm civil libertarianism that leads ACLU lawyers to defend the rights of neo-Nazis," Redish states that "restrictions on the expression of the economically powerful or the use of money for expression threaten fundamental First Amendment values." He condemns government restrictions on advertising by tobacco companies, for example, as "the most ominous form of thought suppression," and observes that "over the last two-thirds of the twentieth century, the political power exercised by organized labor has been at least as great as that of the corporate giants." Furthermore, Denison quotes Redish as insisting that "limiting the ability of those with economic power to spend or contribute to political campaigns in no way expands the ability of those who lack such power to communicate their political message."

Though Denison questioned Redish's argument that corporate speech is basically a benefit to democratic societies, he admitted that "the free-speech concerns of absolutists have to be considered seriously." But, the critic concluded, "books that make passionate arguments about democratic theory—denying all along that money power has skewed politics against the public interest—try one's patience."

The Logic of Persecution: Free Expression and the McCarthy Era focuses on the restriction of First Amendment rights during the early years of the Cold War, when members of the Communist Party in America were subjected to surveillance, blacklisting, and imprisonment. Historians have debated the legitimacy of such measures, which were taken allegedly to protect the United States from a Soviet-backed takeover. While many have insisted that the perceived threat was grossly exaggerated, documents made public in the 1990s (the Venona documents) indicate that there were in fact Americans who spied for the Soviet Union and were working for the overthrow of the government.

In light of this information, David E. Bernstein, writing in the Northwestern Law Review, quoted Redish: "Although the Venona documents … indisputably establish that a certain percentage of American Communists engaged in espionage, to rely on those revelations in order to justify many of the prosecutions of American Communists during the Cold War amounts to a constitutional non sequitur. Anticommunist historians completely ignore the simple fact that, with relatively limited exception, … the government prosecutions … had absolutely nothing to do with the clearly illegal espionage revealed by the Venona documents. Rather, they were premised on communists' organizational activities allegedly designed to facilitate advocacy of the attempted overthrow of the American government." What's more, Redish adds, "there is all the difference in the world between the two forms of activity…. That many American communists … properly have been prosecuted for unprotected acts of espionage does not logically imply that their wholly unrelated protected expressive activity could also be constitutionally punished."

Ira L. Strauber, writing in the Law & Politics Book Review, described The Logic of Persecution as a "well-crafted and consistently engrossing attempt to reconfigure our understanding of ‘McCarthy era’ constitutional history … in light of, and in relation to, interpretations of various facets of First Amendment jurisprudence. Its synergistic and pragmatic use of historical materials, formalist conceptions and categories, facets of conventional and non-conventional First Amendment theory and doctrinal analysis, and democratic political theory … make for arguments and conclusions which are … sufficiently serious and purposeful to be worthy of our careful attention and critical assessment." While Northwestern Law Review contributor Bernstein agreed with Redish's constitutional analysis, he added that "contrary to his perspective, … historians may reasonably consider the moral status of the defendants; whether freedom of expression suffered any lasting harm; and whether the goal of destroying the [American Communist Party's] usefulness to the USSR was, in context, a particularly important one."

BIOGRAPHICAL AND CRITICAL SOURCES:

BOOKS

Redish, Martin H., Freedom of Expression: A Critical Analysis, Michie (Charlottesville, VA), 1984.

Redish, Martin H., Money Talks: Speech, Economic Power, and the Values of Democracy, New York University Press (New York, NY), 2001.

Redish, Martin H., The Logic of Persecution: Free Expression and the McCarthy Era, Stanford University Press (Stanford, CA), 2005.

PERIODICALS

American Political Science Review, March 1, 1996, William Gangi, review of The Constitution as Political Structure, p. 200.

American Prospect, September 24, 2001, Dave Denison, review of Money Talks, p. 41.

Annals of the American Academy of Political and Social Science, March 1, 1996, Howard Gillman, review of The Constitution as Political Structure, p. 226.

Case Western Reserve Law Review, December 22, 1990, Jack M. Beermann, "‘Bad’ Judicial Activism and Liberal Federal-Courts Doctrine: A Comment on Professor Doernberg and Professor Redish," p. 1053.

CBA Record, May 1, 2004, Carol McHugh Sanders, review of Money Talks, p. 64.

Choice: Current Reviews for Academic Libraries, July 1, 1995, M. Berheide, review of The Constitution as Political Structure, p. 1802; March 1, 2002, D. Schultz, review of Money Talks, p. 1324; September 1, 2006, B.E. Marston, review of The Logic of Persecution, p. 198.

Constitutional Commentary, January 1, 1986, Deborah Jones Merritt, review of Freedom of Expression, p. 234; December 22, 1996, Richard W. Murphy, review of The Constitution as Political Structure, p. 330.

Cumberland Law Review, September 22, 1992, "The Legislative Role in the American Republic," p. 7.

Current, November 1, 2001, review of Money Talks, p. 36.

George Washington Law Review, January 1, 1992, Charles Silver, review of The Federal Courts in the Political Order: Judicial Jurisdiction and American Political Theory, p. 562.

Harvard Civil Rights-Civil Liberties Law Review, June 22, 2006, Christopher W. Schmidt, review of The Logic of Persecution, p. 591.

Harvard Law Review, March 1, 1996, review of The Constitution as Political Structure, p. 1174; February 1, 2002, review of Money Talks, p. 1276.

Indiana Law Review, December 22, 1998, Vicki C. Jackson, "Printz and Testa: The Infrastructure of Federal Supremacy," p. 111.

Journalism Quarterly, autumn, 1985, Ruth Walden, review of Freedom of Expression, p. 668.

Journal of Law & Politics, June 22, 1997, "Disciplining Congress: The Boundaries of Legislative Power," p. 585.

Journal of Legal Education, September 1, 1982, Eugene Gressman, review of Federal Jurisdiction, p. 445; March 1, 1996, Louis Fisher, review of The Constitution as Political Structure, p. 135.

Law & Politics Book Review, January 1, 2006, Ira L. Strauber, review of The Logic of Persecution, p. 92.

Michigan Law Review, March 1, 1982, Gene R. Shreve, review of Federal Jurisdiction, p. 688; May 1, 1992, James Hopenfeld, review of The Federal Courts in the Political Order, p. 1239.

Northern Kentucky Law Review, June 22, 1997, John T. Valauri, "Smoking and Self-Realization: A Reply to Professor Redish," p. 585.

Northwestern University Law Review, October 1, 1981, Robert A Sedler, review of Federal Jurisdiction, p. 541; December 1, 1983, Franklyn S. Haiman, "Comments on Martin Redish's the Warren Court, the Burger Court and the First Amendment Overbreadth Doctrine," p. 1071; September 22, 1985, Sanford Levinson, review of Freedom of Expression, p. 767; June 22, 1989, Louise Weinberg, "The Curious Notion That the Rules of Decision Act Blocks Supreme Federal Common Law," p. 860; September 22, 1991, Erwin Chemerinsky, review of The Federal Courts in the Political Order, p. 96; June 22, 1999, Nadine Strossen, "A Comment on Redish and Kaludis's the Right of Expressive Access in First Amendment Theory," p. 1135; March 22, 2006, David E. Bernstein, review of The Logic of Persecution, p. 1295.

Ohio Northern University Law Review, September 22, 1997, "Afternoon Commentator," p. 1379.

Political Science Quarterly, March 22, 2006, L.A. Powe, Jr., review of The Logic of Persecution, p. 168.

Reference & Research Book News, August 1, 1991, review of The Federal Courts in the Political Order, p. 25; November 1, 2001, review of Money Talks, p. 157; February 1, 2003, review of Federal Courts, p. 168; November 1, 2005, review of The Logic of Persecution.

Seattle University Law Review, March 22, 1998, Constance Frisby Fain, review of Constitutional Law: Principles and Policy, p. 807; June 22, 2007, "Corporations and Political Speech: Should Speech Equal Money?," p. 931.

UCLA Law Review, December 1, 1988, Erwin Chemerinsky, "Federal Courts, State Courts, and the Constitution: A Rejoinder to Professor Redish," p. 369.

University of Cincinnati Law Review, March 22, 1986, Michael E. Solimine, review of Freedom of Expression," p. 1243.

University of Michigan Journal of Law Reform, January 1, 2006, "Not from Concentrate? Media Regulation at the Turn of the Millennium," p. 229.

University of Pennsylvania Law Review, January 1, 1982, C. Edwin Baker, "Realizing Self-Realization: Corporate Political Expenditures and Redish's the Value of Free Speech," p. 646; June 1, 1990, Akhil Reed Amar, "Reports of My Death Are Greatly Exaggerated: A Reply," p. 1651.

Virginia Law Review, November 1, 1992, David L. Shapiro, "Reflections on the Allocation of Jurisdiction between State and Federal Courts: A Response to ‘Reassessing the Allocation of Judicial Business between State and Federal Courts,’" p. 1839; November 1, 1992, Charles B. Renfrew, "The Problem of Docket Control: A Response to ‘Reassessing the Allocation of Judicial Business between State and Federal Courts,’" p. 1833.

Wake Forest Law Review, December 1, 1981, George K. Walker, review of Federal Jurisdiction, p. 1037.

William and Mary Law Review, September 22, 1985, Robert D. Kamenshine, "Embargoes on Exports of Ideas and Information: A Reply to the Comments," p. 925.

Wisconsin Law Review, March 1, 1991, George D. Brown, review of The Federal Courts in the Political Order, p. 293.

Yale Law Journal, October 1, 2006, Saikrishna Prakash and Steven D. Smith, "Reply: (Mis)Understanding Good-Behavior Tenure," p. 159.