September 26, 2007


Appiah, Kwame Anthony, & Martin Bunzel, eds., Buying Freedom: The Ethics and Economics of Slave Redemption (Princeton & Oxford: Princeton U. Press, 2007) (From the ‘Introduction’: “This volume has its origins in an unsolicited telemarketing call. One of us (MB) was asked for money to (purportedly) free a slave in Sudan and was intrigued enough to solicit views from a variety of human rights and international relief organizations. Struck by the near unanimous condemnation of the practice, the editors began an extended conversation with others about just what (if only under idealized circumstances) would make such a practice morally wrong….” “The results of the conversations prompted by the original practical question are represented in what follows.” Id. at xiii. From Chapter Three, Arnab K. Basu and Nancy H. Chau, An Exploration of the Worst Forms of Child Labor: Is Redemption a Viable Option?‘: “According to recent International Labor Organization (ILO) estimates, 211 million children between the ages of 5 and 14 are economically active, and of those, 186.3 million are child laborers. [‘According to ILO terminology, a child who worked for one hour or more the previous week is economically active. A child labourer is defined as a child between the ages of 5 and 11 who is economically active, or one aged 12-14 who does 14 or more hours of nonhazardous work pper week or 1 hour of haxardous work per week.’] In addition, 5.7 million children are in forced or bonded labor, 1.8 million in prostitution and 9.3 million in armed conflict.” Id. at 37. Of course, one might feel greater sorrow for the 18 year old college student described in Seth Schiesel’s NYT article today: “ Bill Gates, the chairman of Microsoft, is the richest man on earth. [The student], a freshman at the University of Washington, said he would have 73 cents left in his bank account as of midnight. And that’s one reason Mr. Gates is likely to be the richest man on earth for quite a while. Both were at a Best Buy store in Bellevue, Wash., on Monday night as the third installment of Halo, Microsoft’s hit video game series, went on sale at 12:01 a.m. yesterday. Just before that moment, Mr. Gates was hand-shaking his way down the line of customers. Among them was [the student], 18, who said the 73 cents was all he would have left after buying the game.”).

Berg, Mary, The Diary of Mary Berg: Growing Up in the Warsaw Ghetto edited by S. L. Shneiderman, new edition prepared by Sausan Lee Pentlin (Oxford: Oneworld Book, 2007).

Grass, Gunter, Peeling the Onion: A Memoir translated from the German by Michael Henry Heim (New York: Harcourt, 2007).

Zamir, Tzachi, Ethics and the Beast: A Speciesist Argument for Animal Liberation (Princeton & Oxford: Princeton U. Press, 2007) (I had been sitting in on an ‘Animal Rights Symposium’ beginning conducted at the law school. I am not yet sure where I will come down on the multitude of issues relating to human treatment of nonhuman animals. However, simply thinking about and struggling with those issues has been most intellectually–and morally--enlightening. Tzachi Zamir’s thoughtful book/essay provides additional food for thought.).

September 25, 2007


Battles, Matthew, Library: An Unquiet History (New York & London: Norton, 2003) (“Reading the library, we quickly come to an obvious conclusion: most books are bad, very bad in fact. Worst of all, they’re normal: they fail to rise above the contradictions and confusions of their times…. It’s understandable, then, that we spend so much energy ferreting out the exceptional books, the ones that shatter paradigms. But we shouldn’t forget that the unremarkable books have much to teach us about cultural history—ultimately more, perhaps, than our cherished Great Books.” Id. at 16-17. “In the ideal public library, we are all readers of the ‘middling sort.’ Reading whatever we will, we fulfill a public function, preserving the sacrosanct space of inner thought that is our birthright. Assaults on that birthright in the forms of legislation, surveillance, and censorship ultimately are precisely as dangerous as our acquiescence in them.” “What we face is not a loss of books but the loss of a world.” Id. at 213.).

Epictetus, The Discourses as Reported by Arrian, Books I-II with an English translation by W.A. Oldfather (Cambridge, Ma. and London, England: Harvard U. Press, 1925) ("What, then, does it mean to be getting an education? It means to be learning how to apply the natural preconceptions to particular cases, each to the other in conformity with nature, and, further, to make the distinction, that some things are under our control while others are not under our control. Under our control are moral purpose and and all the acts of moral purpose; but not under our control are the body, the parts of the body, possessions, parents, brothers, children, country--in a word, all that with which we associate." Id. at 143. "What is the beginning of philosophy?... The beginning of philosophy with those who take it up as they should, and enter in, as it were, by the gate, is a consciousness of a man's own weakness and impotence with reference to the things of real consequence in life." Id. at 277. "What is the first business of one who practises philosophy? To get rid of thinking that one knows; for it is impossible to get a man to begin to learn that which he thinks he knows. However, as we go to the philosophers we all babble hurly-burly about what ought to be done and what ought not, good and evil, fair and foul, and on these ground assign praise and blame, censure and reprehension, passing judgement on fair and foul practices, and discriminating between them. Bu what do we go the philosopher for? To learn what we do not think we know. And what is that? General principles. For some of us want to learn what the philosophers are saying, thinking it will be witty and shrewd, others, because they wish to profit thereby. But it is absurd to think that when a man wishes to learn one thing he will actually learn something else, or, in short, that a man will make progress in anything without learning it." Id. at 327-329. "Give me but one young man who has come to school with this purpose [i.e., learning first principles] in view, who has become an athlete in this activity, say, 'As for me, let everything else go; I am satisfied if I shall be free to live untrammeled and untroubled, to hold up my neck in the face of facts like a free man, and to look up to heaven as a friend of God, without fear of what may possibly happen.' Let one of you show me such a person, so that I can say to him: Enter, young man, into your own, for it is your destiny to adorn philosophy, yours are these possessions, yours these books, yours these discourses. Then, when he has worked his way through this first field of study and mastered it like an athlete, let him come to me again and say, 'I want, it is true, to be tranquil and free from turmoil, but I want also, as a god-fearing man, a philosopher, and a diligent student, to know what is my duty towards the gods, towards parents, towards brothers, towards my country, towards strangers.' Advance now to the second field of study, this also is yours. 'Yes, but I have already studied this second field. What I wanted was to be secure and unshaken, and that not merely in my waking hours, but also when asleep, and drunk, and melancholy-mad.' Man, you are a god, great are the designs you cherish!" Id. at 337.).

Epictetus, The Discourses as Reported by Arrian, Books III-IV; Fragments; Encheiridion with an English translation by W.A. Oldfather (Cambridge, Ma. and London, England: Harvard U. Press, 1928).

Godden, Richard, William Faulkner: An Economy of Complex Words (Princeton & Oxford: Princeton U. Press, 2007) (Those well versed in Faulkner will find this an interesting read. From the jacket cover: “Godden traces how [Faulkner’s] late fiction echoes the economic and racial traumas of the South’s delayed modernization in the mid-twentieth century. As the New Deal rapidly accelerated the long-term shift from tenant farming to modern agriculture, many African Americans were driven from the land and forced to migrate north. At the same time, white landowners exchanged dependency on black labor for dependency on northern capital…. Godden shows how the novels’ literary complexities—from their narrative structure down to their smallest verbal expression—reflect and refract the period’s economic complexities. By demonstrating the interrelation of literary forms and economic systems, the book describes, in effect, the poetics of an economy.”).

Goldsmith, Jack, The Terror Presidency: Law and Judgment Inside the Bush Administration (New York: Norton, 2007) (This is a perversely interesting read. It may cause those of you who are not lawyers to included as part of your daily mantra the Shakespeare line, 'First we kill all the lawyers.' It may cause a few of you who are lawyers to question whether, on net, lawyers play a positive role in contemporary American society. Do we have too much law and/or too many lawyers? I think this book will be most appreciated by those who know their American history, including American preseidential and constitutional history. "[Then Chief White House Counsel] Gonzales's memo has been criticized as a conspiracy to commit a war crime. A more charitable and realistic view is that the President's counselor was trying to help his client avoid the pitfalls of the post-Watergate criminalization of warfare. President Bush faced national security imperatives.... But for the first time ever, the president's ultimate obligation to do what it takes to protect the nation from devastating attack was checked by a hornet's nest of complex criminal restrictions on his traditional wartime discretionary powers--restrictions that the White House feared would later be construed uncharitably in our shifting polarized political culture. Many people think the Bush administration has been indifferent to wartime legal constraints. But the opposite is true: the administration has been strangled by law, and since September 11, 2001, the war has been lawyered to death. The administration has paid attention to law not necessarily because it wanted to, but rather because it had no choice." "It may be hard to believe that executive branch officials, many of whom risk their lives to protect the nation, really care much about criminal law, investigation, and possibly, jail. But they do care--a lot. In my two years of government, I witnessed top officials and bureaucrats in the White House and throughout the administration openly worry that investigators acting with the benefit of hindsight in a different political environment would impose criminal penalties on heat-of-battle judgments. These men and women did not believe they were breaking the law, and indeed they took extraordinary steps to ensure that they didn't. But they worried nonetheless because they would be judged in an atmosphere different from when they acted, because the criminal investigative process is mysterious and scary, because lawyers' fees can cause devastating financial losses, and because an investigation can produce reputation-ruining dishonor and possibly end one's career, even if you emerge 'innocent.'" "Why, then, do they even come close to the legal line? Why risk reputation, fortune, and perhaps liberty? Why not play it safe? Many counterterrorism officials did play it safe before 9/11, when the criminalization of war and intelligence contributed to the paralyzing risk aversion that pervaded the White House and the intelligence community. The 9/11 attacks, however, made playing it safe no longer feasible." Id. at 68-70. No longer playing it safe, but with what consequences? "The main problem was not that senior officials faced potential legal jeopardy...." "The main problem was the effect that the legalization of warfare and intelligence had on lover-level officials in the Defense Department, the CIA, and the National Security Agency. The White House couldn't execute its plans to check al Qaeda without the cooperation of the military and intelligence bureaucracy. But these bureaucracies--especially in the intelligence community--had in the 1980s and 1990s become institutionally disinclined to take risks...." "This mounting caution was reinforced by the swarm of lawyers that rose up in the military and intelligence establishment to interpret multiplying laws and provide cover for those asked to act close to the legal line. In the 1970s the CIA had only a handful of lawyers. But as legal restrictions on CIA activities grew, and despite huge personnel cuts in the 1990s, the number of CIA lawyers rose and rose, and today stands at well over one hundred. The number of lawyers in the Defense Department grew even more steeply during this period, and today stands at over ten thousand, not including reservists. As lawyers grew in number, they grew in influence. Commanding officers and intelligence operative seeking to avoid 'retroactive discipline' increasingly sought lawyers' permission before acting. If the lawyer said 'no,' the official had a perfect excuse for not acting. If the lawyer said 'yes,' the official was effectively immunized from legal liability, including jail. Seeking a lawyer's input this became a way to avoid both blame and jail." "Lawyers are by nature and training a cautious bunch, and as their power grew their caution spread." Id. at 91-92. "[P]rior to 9/11. intelligence officers spooked by cautious lawyers failed to take actions that might have prevented the 9/11 attacks. The CIA was, in the words of the 9/11 Commission Report, 'institutionally averse to risk,' and law and lawyers ere a big part of the problem. It didn't help that CIA leaders encouraged their officers to buy professional liability insurance for legal expenses to be incurred in the expected criminal and related investigations." Id. at 95. But the book is not about lawyers, though it is certainly about law. The book is about the Bush presidency. "Lincoln and Roosevelt understood that, as Schlesinger said, the 'truly strong President is not the one who relies on his power to command but the one who recognizes his responsibility, and opportunity, to enlighten and persuade.'" "We are unlikely to come to think of President Bush in this way, for he has not embraced Lincoln's and Roosevelt's tenets of democratic leadership in crisis. He has been almost entirely inattentive to the soft factors of legitimation--consultation, deliberation, the appearance of deference, and credible expression of public concern for constitutional and international values--in his dealing with Congress, the courts, and allies. He has instead relied on the hard power of prerogative. And he has seen his hard power diminished in many ways because he has failed to take the softer aspects of power seriously, This irony will likely be the Bush presidency's legacy for executive power." Id. at 215.).

Havazelett, Ehud, Bearing the Body: A Novel (New York: Farrar, Straus & Giroux, 2007) (“But here, the saddest most beautiful prayer I know: ‘Beauty is a pledge of the possible conformity between the soul and nature, and consequently a ground of faith in the supremacy of the good.’” “Try carrying that around without breaking your heart.” Id. at 289.).

Hirschman, Albert O., Exit, Voice, and Loyalty: Responses to Decline in Firms, Organizations, and States (Cambridge & London: Harvard U. Press, 1970) (This remains a very important book. "The performance of a firm or an organization is assumed to be subject to deterioration for unspecified, random causes which are neither so compelling nor so durable as to prevent a return to previous performance levels, provided managers direct their attention and energy to that task.... Management then finds out about its failings via two alternative routes: (1) Some customers stop buying the firm's products or some members leave the organization: this is the exist option. As a result, revenues drop, membership declines, and management is impelled to search for ways and means to correct whatever faults have led to exist. (2) The firm's customers or the organization's members express their dissatisfaction directly to management or to some other authority to which management is subordinate or through general protest addressed to anyone who cares to listen: this is the voice option. As a result, management once again engages in a search for the causes and possible cures of customers' and members' dissatisfaction." Id. at 3-4. "The remainder of this book is largely devoted to the comparative analysis of these two options and to their interplay." Id. at 405. "[T]wo principal determinants of the readiness to resort to voice when exit is possible [are]: (1) the extent to which customer-members are willing to trade off certainty of exit against the uncertainties of an improvement in the deteriorated product; and (2) the estimate customer-members have of their ability to influence the organization." "Now the first factor is clearly related to that special attachment to an organization known as loyalty...." "As a rule, then, loyalty holds exist at bay and activates voice." Id. at 77-78.).

Klein, Naomi, The Shock Doctrine: The Rise of Disaster Capitalism (New York: Metropolitan Books/Henry Holt, 2007 (This is a powerful book. However, though Klein connects the dots, it is not clear that she has shown that the various dots have a cause-effect relationship. A recent graduate of the law school recommended this book to me. I suspect that, at least in part, he did so because I am on record as a believer—though not necessarily a ‘true believer’—in the Chicago School of economics. So, it is not surprising that I am rather unconvinced by the ‘blame it on Milton Friedman and the Chicago School’ argument and narrative at the core of this book. That said, I very strongly recommend reading the book.).

Pagels, Elaine & Karen L. King, Reading Judas: The Gospel of Judas and the Shaping of Christianity (New York: Viking, 2007).

Saks, Elyn R., Refusing Care: Forced Treatment and the Rights of the Mentally Ill (Chicago & London: U. of Chicago Press, 2002).

Sunstein, Cass R., 2.0 (Princeton & Oxford: Princeton U. Press, 2007) (This is a thoughtful discussion of the relationship among democracy, free speech and the Internet.).

Weisman, Alan, The World Without Us (New York: Thomas Dunne Books/ St. Martin’s Press, 2007) (From the jacket cover: “[E]xplains how our massive infrastructure would collapse and finally vanish with human presence.”. Or, why all other life on this planet—excepting hair lice--would be better without us.).

Wisse, Ruth R., Jews and Power (Jewish Encounters) (New York: Shocken/ Nextbook, 2007) (“To this day, Jews figure more prominently in the study of religion than they do in the study of government or political theory. Political Science has shown little interest in a nation that doesn’t fit its paradigms.” “To address this deficiency as I see it, this book highlights the political aspect of Hewish experience. In particular, I want to see how the politics of Jews occasions the politics of anti-Jews. I look at the politics of Jews and anti-Jews in tandem because that is the way they coexist. Some readers may be concerned that such linkage would appear to hold Jews responsible for the aggression leveled against them. Rather, the tendency of Jews to seek fault in themselves is part of the harmful pattern I hope to expose. Psychologists do not demean their patients by inquiring into the patterns of abuse they have sustained, neither should our inquiry into the pattern of Jewish political strategy be mistaken for reproach.” Id. at xiv-xv.).

Yellin, Tamar, The Genizah at the House of Shepher (New Milford, Ct., & London: The Toby Press, 2005) (fiction).

September 17, 2007


I should like to refer you to the two items below.

BUSINESS | September 15, 2007
Ayn Rand's Literature of Capitalism
Ayn Rand’s “Atlas Shrugged,”a glorification of the right of individuals to live entirely for their own interest, influenced Alan Greenspan and others.

BOOKS / SUNDAY BOOK REVIEW | September 16, 2007
Essay: Revisiting the Canon Wars
Two decades after Allan Bloom’s “The Closing of the American Mind,” it’s generally agreed that his multiculturalist opponents won the canon wars.

September 12, 2007


This long essay on true purpose of a college eduation deserved it own posting to this blog. Though most readers of this blog are well pass college, as teachers and citizens it addresses something which should be of continuing concern for all of us.

Kronman, Anthony T., Education’s End: Why Our Colleges and Universities Have Given Up on the Meaning of Life (New Haven & London: Yale U. Press, 2007) (“By 1880, the world of the antebellum college had disappeared. For those teachers of the humanities who felt some loyalty to the traditions of the old regime and still believed they had a duty to guide their students in the search for an answer to the question of what ultimately matters in life and why, a new way of providing such guidance had to be found amidst the ruins of the old order, in a culture of skeptical pluralism that had not antecedent in American higher education.” “Those who took up the challenge agreed on two basic points: The first was that the tendency toward specialization must be resisted. The purpose of a college education is not, they said, merely or even mainly to prepare students for their careers by conveying to them the specialized knowledge they need for their work. More fundamentally, a college must equip its students for the comprehensive challenges of life by giving them what Alexander Meiklejohn called training in the general ‘art of living.’ A college’s first duty, he said, is to help its students acquire this art—not to equip them for the more limited responsibilities associated with a particular job.” “Second, there was a broad agreement that the humanities are the disciplines best suited to do this. Literary studies were though particularly important in this regard…. The study of literature, classical and modern, had become an important vehicle for training students in Meiklejohn’s art of living.” “The same was true of philosophy…. It had become a testing ground for the examination of competing philosophies of life and the arguments that support them…. The study of history, which supplies an organizing framework for the examination of man’s cultural achievements and helps bring these to bear in an orderly way on the central problems of life, seemed relevant to Meiklejohn’s goal as well. Among the many specialized fields of study that now had a place in the university, it was the humanities—literature, philosophy, history, and art—that still seemed most alive to the old, unspecialized question of how best to live.” Id. at 71-72. “Yet despite their variety, most of these programs rested on several important (and today controversial) assumptions that went beyond the general idea that a student’s education should be preparation for life and that the humanities are the disciplines best equipped to provide it. Together these assumptions defined a philosophy pf humanistic education. They defined its goal and the best means to reach it.” “I shall call this ideal ‘secular humanism.’ Others have used the name and given it different meanings. Some of these have implications I do not wish to endorse. But it is a good name nonetheless. For it underscores the single most important feature of the outlook I have in mind. This was the conviction that it is possible to explore the meaning of life in a deliberate and organized way even after its religious foundations have been called into doubt. In a culture of deepening skepticism, secular humanism offered modest but real grounds for hop to teachers of the humanities who wanted to believe they still had the competence to lead their students in a disciplined study of the human condition and to help them locate their own personal search for meaning within it. For the better part of a century, secular humanism remained a source of inspiration—sometimes noticed, often not—for teachers who wanted to do this and who recognized that their efforts had to be based on something other than man’s well-understood relation to God.” Id. at 74-75. “Today, this idea is not threatened by doubts. It is threatened by pious conviction. Its real enemy is the new faith which prescribes the orthodoxy to which so many students subscribe—the culture of political correctness that strangles serious debate, the careerism that distracts from life as a whole, the blind acceptance of science and technology that disguise and deny our human condition. It is these that now put the idea of an art of living at risk and undermine the authority of humanities teachers to teach it. But these same pieties make it essential that this authority to be reclaimed. The secular humanism that once saved us from our doubts must now save us from the forces that belittle and obscure it and restore the openness and wonder that will always accompany any authentic effort to ask it.” Id. at 258-259.).

September 11, 2007


In my capacity as just a citizen in a participatory democracy, and with a responsibility of being informed, I found reading and thinking through the law school casebook below quite an eye-opening and worthwhile experience.

Dycus, Stephen, William C. Banks & Peter Raven-Hansen, Counterterrorism Law (New York: Aspen Publishers/Wolters Kluwer Law & Business, 2007).

A thoughtful reading will require one to place aside all the emotional, political, and patriotic jargon and jingolism one encounters every day in the media. It will require one to constantly ask oneself three questions: (1) Will these policies be effective in countering terrorism?; (2) If effective, will these policies necessiate fundamental changes and compromises in important American values and ways of life?; and (3) If so, has terror won already? I do not propose to answer these questions for anyone else (I am not sure I can answer them for myself yet), and neither do the authors of the casebook. Yet, those are the important questions lurking in the shadow and for which thoughtful readers will not be allowed to hide behind the abstract and the general.

Were I to teach a course on counterterrorism (which I would not) I would want to supplement the casebook with some readings from America's political history. An appreciation of the The Red Scare of the earlier 20th century would, I think, provide a valuable point for comparision.

September 5, 2007


Coetzee, J. M., Inner Workings: Literary Essays 2000-2005 (New York: Viking, 2007).

Frankfurt, Harry G., The Importance of What We Care About: Philosophical Essays (Cambridge: Cambridge U. Press, 1988) (I had occasion, once again, to re-read this collection of essays. I want to bring to your attention one particular essay, 'Equality as a Moral Ideal.' "Economic egalitarianism is, as I shall construe it, the doctrine that it is desirable for everyone to have the same amounts of income and of wealth (for short, "money"). Hardly anyone would deny that there are situations in which it makes sense to tolerate deviations from this standard.... Nonetheless, many people believe that economic equality has considerable moral value in itself. For this reason they often urge that efforts to approach the egalitarian ideal should be accorded...a significant priority." "In my opinion, this is a mistake. Economic equality is not as such of particular moral importance. With respect to the distribution of economic assets, what is important from the point of view of morality is not that everyone should have the same but that each should have enough. If everyone had enough, it would be of no moral consequence whether some had more than others. I shall refer to this alternative to egalitarianism--namely, that what is moral important with respect to money is for everyone to have enough--as 'the doctrine of sufficiency'." "But despite the fact that an egalitarian distribution would not necessarily be objectionable, the error of believing that there are powerful moral reasons for caring about equality is far from innocuous. In fact, this belief tends to do significant harm." To the extent that people are preoccupied with equality for its own sake, their readiness to be satisfied with any particular level of income or wealth is guided not by their own interests and needs but just by the magnitude of the economic benefits that are at the disposal of others. In this way egalitarianism distracts people from measuring the requirements to which their individual natures and their personal circumstances give rise. It encourages them instead to insist upon a level of economic support that is determined by a calculation in which the particular features of their own lives are irrelevant.... A concern for economic equality, construed as desirable in itself, tends to divert a person's attention away from endeavoring to discover--within his experience of himself and of his life--what he himself really cares about and what will actually satisfy him, although this is the most basic and the most decisive task upon which an intelligent selection of economic goals depends. Exaggerating the moral importance of economic equality is harmful, in other words, because it is alienating." Id. at 134, 134-136.)

Hagen, George, Tom Bedlam: A Novel (New York: Random House, 2007).

Hobbs, Robert, Milton Avery: The Late Paintings (New York: Harry N. Abrams, 2001).

Lawrence, D. H., Apocalypse (The Definitive Text from the Cambridge Edition) (New York: Viking, 1981) (From the jacket cover: "This essay] is a radical critique of religion and society and a testament to Lawrence's belief in the life-giving spiritual properties of the physical word.").

Patterson, Kevin, Consumption: A Novel (New York: Doubleday, 2007).

Sofer, Dalia, The September of Shiraz: A Novel (New York: Ecco, 2007).

Stott, Rebecca, Ghostwalk: A Novel (New York: Spiegel & Grau, 2007).