November 24, 2007


From Ambrose Bierce, The Devil’s Dictionary:
“Cynic, n. A blackguard whose faulty vision sees things as they are, not as they ought to be. Hence the custom among the Scythians of plucking out a cynic’s eyes to improve his vision.”

Conquest, Robert, Reflections on a Ravaged Century (New York & London: Norton, 2000)("This book’s general theme…is that any concept given anything like absolute status becomes not a guide to action but an abstraction whose imposition on reality reveals an incompatibility, as engineers say of parts that do not fit, and that can only be made to fit by main force, and even then ineffectively or ruinously.” “Nor…is this to examine a dead past, but rather a still living past, where we can tract the primitive but still powerful notion that any political or other objective can be achieved by mere force.” “The world still faces a legacy of dangers fueled by the fatal ideas to which this attitude gives rise…. The technology of power developed over the past century is still at the disposal of a variety of dangerous rulers. The overwhelming destructive weaponry now available remains an appalling threat. Archaic hatreds, ideologically modernized and totalitarianized, flourish.” Id. at xiv. “There is a smugness in ‘Look at me being pragmatic.’ But there are also dangers in the attitude, commoner outside than inside government, ‘Look at me being idealistic.’ To congratulate oneself on one’s warm commitment to the environment, or to peace, or to the oppressed, and think no more is a profound moral fault. The true conscience includes an intellectual conscience. By their fruits ye shall know them, not just by their intentions.” Id. at 201. “For people can be educated, cultured and so forth without having been to university at all—as with dozens from Benjamin Franklin to Winston Churchill, from Shakespeare to Einstein, to say nothing of the great women writers of the nineteenth century. Nor is this only a matter of genius. Even erudition is possible outside academe…. What all of them had was, in the first place, reading. We all know dozens of people, especially from an older generation, who are as much at home in these world—except in special fields—as their Bachelored and Mastered and Doctored acquaintances.” Id. at 228-229.).

Johnson, Diane, Dashiell Hammett: A Life (New York: Random House, 1983) (“MR. COHN: If I were to ask you, with reference to these books, whether you were a member of the Communist Party at the time you wrote the books, what would your answer be? MR. HAMMETT: Same answer, I would decline to answer on the grounds that an answer might tend to incriminate me. CHAIRMAN MC CARTHY: Mr. Hammett, let me ask you this. Forgetting about yourself for the time being, it is a safe assumption that any member of the Communist Party, under Communist discipline, would propagandize the Communist cause, normally, regardless of whether he was writing fiction books or books on politics. MR. HAMMETT: I can’t answer that, because I honestly don’t know. CHAIRMAN MC CARTHY: Well, now, you have told us that you will not tell us whether you are a member of the Communist PARTY today or not, on the ground that if you told us the answer might incriminate you. That is normally taken by this committee and the country as a whole to mean that you are a member of the party, because if you were not you would simply say, ‘no,’ and it would not incriminate you. You see, the only reason that you have the right to refuse to answer is if you feel a truthful answer would incriminate you. An answer that you were not a Communist, if you were not a Communist, could not incriminate you. Therefore, you should know considerable about the Communist movement, I assume. MR. HAMMETT: Was that a question, sir? CHAIRMAN MC CARTHY: That is just a comment upon your statement.” Id. at 266-267.).

Rovere, Richard H., Senator Joe McCarthy (New York: Harcourt, Brace, 1959) ("It sometimes seemed to me that he [McCarthy] had elaborated an approach, based on this guilty knowledge, that was really a great satire, a gigantic spoof on the kind of scholarship in which the 'fact' enjoys its ultimate triumph. The cream of the jest for this superb faker may have lain in the success he enjoyed in turning the devices of scholarship against scholars. Documents, documents, documents--he was always loaded with them. The bulging briefcase--the scholar's toolbox--became to him what snapping red galluses and a stream of tobacco juice were to the older Southern demagogues. He saw the possibilities of coming before the people with the dust of the archives clinging to him, and he was right. The true believers would twitch in ecstasy and skeptics would suffer the first tremors of belief when he held aloft a scrap of paper and announced that it was hot from the filing cabinets. It might be nothing at all or it might be grossly mislabeled. (In the post-Tydings period, there was seldom an appearance unmarked by his waving a picture of a United Nations employee named Gustavo Duran wearing the uniform, which had been his fifteen years earlier, of a member of the Spanish Republican Army. McCarthy described him as currently a State Department man and the uniform as that of 'the Russian Secret Police.' There is no instance known to me of anyone asking when members of the OGPU began to wear uniforms and pose for photographs.) He positively flaunted all the stigmata of the pedant: in the 101 pages of his McCarthyism: The Fight for America there are 314 pages meticulously numbered footnotes. Anyone who employed them to run down sources would have seen for himself how McCarthy butchered truth. He knew, though, that people don't run down sources, but are mightily impressed by being given the opportunity to do so. They take the symbol of the fact as proof of the fact." Id. at 168-169. I take little comfort in reading this the same week that the Federal Emergency Management Agency (FEMA) is caught having conducted a fake press conference where the reporters asking the questions were in fact FEMA employees. Fake/doctored facts, fake/doctored documents, fake/doctored footnotes, fake/doctored press conference. But I guess it is now only considered wrong when, and if, you get caught in the fraud.).

Schlesinger, Jr., Arthur M., The Age of Roosevelt, Volume I: The Crisis of the Old Order, 1919-1933 (Boston: Houghton Mifflin, 1957) (“’We in America today,’ said Herbert Hoover on August 11, 1928, ‘are nearer to the final triumph over poverty than ever before in the history of any land. The poorhouse is vanishing from among us. We have not yet reached the goal, but, given a chance to go forward with the policies of the last weight years, we shall soon with the help of God be in sight of the day when poverty will be banished from this nation.’” Id. at 89. God laughed! During the 1932 presidential elections, "...those to the left of Roosevelt felt that Hoover in his portrait of a revolutionary Roosevelt was paying the Democrat far too great a compliment. Men who believed that nothing short of revolution could meet the crisis were not impressed by vague talk of new deals from the country gentlemen. To the real radicals Roosevelt seemed at best warmhearted but superficial, at worst glib and insincere, in any case hopelessly committed to the capitalist system. And the left-wing intellectuals knew, if they knew anything, that capitalism was dead...." "For the sober, hopeful reformer of academic or social work background, the Socialist party remained the ideal outlet and Norman Thomas the predestined leader...." "But for the more romantic intellectuals, Thomas was hardly better than Roosevelt. 'If I vote at all,' said Lewis Mumford, 'it will be for the Communists, in order to express an emphatically as possible the belief that our present crisis calls for a complete and drastic re-orientation.' Other rejected the conditional mood. 'As responsible intellectual workers,' said a group of writers in a statement called Culture and the Crisis in October, 'we have aligned ourselves with the frankly revolutionary Communist Party, the party of the workers.' Republicanism, they said, was bankrupt; the Democratic party was 'the demagogic face of Republicanism'; the Socialist party offered 'mere reformism which builds up state capitalism and thus strengthens the capitalist state and potential Fascism.' The Communist party alone proposed the real solution--'the overthrow of the system which is responsible for all crises.' Here was an ideal worth fighting for, and 'a practical and realizable ideal, as is being proved in the Soviet Union.' 'It is capitalism,' the manifest concluded, 'which is destructible of all culture and Communism which desires to save civilization and its cultural heritage from the abyss to which the world crisis is driving it.' The signers included such leading novelists as Theodore Dreiser, Sherwood Anderson, John Dos Passos, Erskine Caldwell and Waldo Frank; such critics as Edmund Wilson, Newton Arvin, Malcolm Cowley, Granville Hicks; such professors as Sidney Hook and Frederick L. Schuman; such journalists as Lincoln Steffens, Matthew Josephson, and Ella Winter. It was an impressive evidence of the defection of intellectuals from the existing order." Id. at 435-437.).

Schlesinger, Jr., Arthur M., The Age of Roosevelt, Volume II: The Coming of the New Deal, 1922-1935 (Boston: Houghton Mifflin, 1959) (There is a tendency of youth to think today's problems, and their perspectives on problems, are both new and unique. Not so! "While the friends of social security were arguing out the details of the program, other Americans were regarding the whole idea with consternation, if not with horror. Organized business had long warned against such pernicious notions. 'Unemployment insurance cannot be placed on a sound financial basis,' said the National Industrial Conference Board; it will facilitate 'ultimate socialistic control of life and industry,' said the National Association of Manufacturers. 'Industry,' observed Alfred Sloan of General Motors, 'has every reason to be alarmed at the social, economic and financial implications.... The dangers are manifest.' It will undermine out national life 'by destroying initiative, discouraging thrift, and stifling individual responsibility' (James L. Donnelly of the Illinois Manufacturers' Association); it begins a pattern which 'sooner or later will bring about the inevitable abandonment of private capitalism' (Charles Denby, Jr., of the American Bar Association); 'the downfall of Rome started with corn laws, and legislation of that type' (George P. Chandler of the Ohio Chamber of Commerce). With unemployment insurance no one would work; with old-age and survivors insurance no one would save; the result would be moral decay, financial bankruptcy and the collapse of the republic, One after another, business leaders appeared before House and Senate Committees to invest such dismal prophecies with what remained of their authority." "Republicans in the House faithfully reflected the business position. 'Never in the history of the world,' said Congressmen John Tabor of New York, 'has any measure been brought in here so insidiously designed as to prevent business recovery, to enslave workers, and to prevent any possibility of the employers providing work for the people.' 'The lash of the dictator will be felt,' cried Congressman Daniel Reed. And twenty-five million free Americans citizens will for the first time submit themselves to a fingerprint test.' Even a respectable Republican like James W. Wadsworth of New York could only see calamity ahead. This bill opens the door and invites the entrance into the political field,' he darkly exclaimed, 'of a power so vast, so powerful as to threaten the integrity of our institutions and to pull the pillars of the temple down upon the heads of our descendants.' On a crucial test, all Republicans in the House save one voted to recommit the bill to committee. But, in the end, the opposition collapsed; and, fearing reprisal at the polls, most Republicans, after resisting every step along the way, permitted themselves to be recorded in favor of catastrophe. On April 19, the House passed a somewhat revised bill by a vote of 371 to 33." "In the Senate conservatives continued a desultory resistance. Most of the debate in both Houses was over the old-age rather than the unemployment compensation provisions. Hastings of Delaware, who predicted that the bill might 'end the progress of a great country and bring its people to the level of the average European,' offered a motion to strike out old-age insurance. Twelve of nineteen Republican senators supported this move. But again, on the final showdown, political prudence triumphed, and the bill passed on Hume 19, 1935, by a vote of 76 to 6." Id. at 311-312. Is not the social security debate still raging? Has not that debate morphed into the debate over universal health care, Medicare and Medicaid (or whatever such programs are being called now, I cannot keep track)?, over 'No Child Left Behind'?, over child-care tax credits? and, yes, over privatization of Social Security? It may seem like a new day but, in the words of Janis Joplin, 'its is all the same damn day'.).

Schlesinger, Jr., Arthur M., The Age of Roosevelt, Volume III: The Politics of Upheaval, 1935-1936 (Boston: Houghton Mifflin, 1960) (This, and the two preceding volumes, provide a nice survey of the social and political history of the years leading up to and through the beginning of Roosevelt's second administration. It should leave one amazed that the country did not fall completely apart. This is not to say the Roosevelt's 'New Deal' was the only or best overall approach to solving the countless challenges of the time. It suggests only that it would be gross arrogance for anyone to suggest that another or better approach to a solution was obvious. Both fascism and communism were real possibilities, and no one knows whether America would have been prepared to shoulder its role in WWII, or what America would look like, had either totalitarian extremes taken hold. Read American history, and not that sugar-coated American history in which 'Americans' are too narrowly defined and are always the brightest and the best. People are weak, weak people are scared and live in constant fear, and scared people grab onto just about anything and anyone who offers security and offers to make them feel better about themselves. Germany had its Hitler. Russia had its Lenin. Spain had its Franco. America had its Father Coughlin, its Huey Long, ... and later its Joe McCarthy. Where would America be if she has been just a little less lucky? Reasonable persons will disagree, but reasonable people would have at least thought about it in a non-superficial manner.)

Schrecker, Ellen, Many Are The Crimes: McCarthyism in America (Boston: Little, Brown, & Company, 1998) (This book is a worthwhile study of a certain episode in American political history--McCarthyism. It is a defense neither of American communism nor of American anticommunism per se. However, it is a critique of how extreme means were used to address the perceived threat of American communism, and the adverse consequences for American society as a whole when the ends are used to justify extreme measure to stifle and punish dissent. It is most unfortunate that students are not exposed to that episode of American history known as 'McCarthyism.' I cannot recall of a single occasion in my 16 plus years of law school teaching where I have overheard a student mention McCarthyism. Why is that? "The term McCarthyism is invariably pejorative." "It is also misunderstood. For McCarthyism ... encompassed much more than the career of the Wisconsin senator who gave it a name. It was the most widespread and longest lasting wave of political repression in American history. In order to eliminate the alleged threat of domestic Communism, a broad coalition of politicians, bureaucrats, and other anticommunist activists hounded an entire generation of radicals and their associates, destroying lives, careers, and all the institutions that offered a left-wind alternative to mainstream politics and culture. The anticommunist crusade--McCarthyism--dominated American politics during the late 1940s and 1950s. It used all the power of the state to turn dissent into disloyalty and, in the process, drastically narrowed the spectrum of acceptable political debate." Id. at x. Is not that something worthy of study by a broader range of students? Should not a study of McCarthyism be near the core of American legal education. Not as something to emulate, but something to safeguard against. Yet, we dare not say its name, yet alone study it. And, as a consequence, we risk its reappearance in another guise. "The McCarthy years were the highpoint of what has been called 'consensus history,' an interpretation of the American past that overlooked internal conflict--as well as all those folks who were not white, elite, upper- and middle-class males of European descent. Though the consensus historians offered differing explanations for the nation's placid trajectory, they generally agreed that it had produced an essentially classless society that had solved what the New York intellectual Daniel Bell called 'the great challenge to Western--and now world--society...: how , within the framework of freedom , to increase the living standards of the majority of people and at the same time maintain or raise cultural levels.' The sweeping ideological formulations associated with Communism, the apostles of consensus explained, were not just wrong or evil; they were irrelevant. The United States had raised pragmatic muddling through to a political art form. Whatever few small problems remained could be fixed by jiggling a little with the controls." Id. at 409. In reading this book it is important to appreciate how McCarthyism hurt America then, how McCarthyism continues to hurt America, and how the mentality of McCarthyism exists today in various segments--some mainstream--of American society. "The overall legacy of the liberals' failure to stand up against the anti-communist crusade was to let the nation's political culture veer to the right. Movements and ideas that had once been acceptable were now beyond the pale. Though Communists and their allies were the direct victims, the mainstream liberals and former New Dealers within the Democratic party were the indirect ones. Condoning the campaign against Communism did not protect them from being denounced for 'losing' China or, like Supreme Court Justice Black, for supporting desegregation in the South. Moreover, because the left had been destroyed, when liberals came under attack they had to defend themselves from more politically exposed position than they would otherwise have occupied. This may seem obvious, but it is a point that needs to be stressed. The disappearance of the communist movement weaken American liberalism. Because its adherents were now on the left of the political spectrum, instead of at its center, they had less room within which to maneuver." Id. at 412. Thus, in contemporary American politics what is the devastating charge raised by the political right against its opposition? That its opposition, the alternative view, is 'liberal'. "Though the specific historical circumstances of the early Cold War produced both its content and its institutional structure, the process through which McCarthyism came to dominate American politics is infinitely replicable. The demonization of politically marginalized groups and the use of state power to repress them goes on all the time, as does the willingness of so many important individuals and institutions to collaborate with the process. Only now, under the impact of a globalized, yet atomized, capitalist system, political repression may have become so diffuse that we do not recognize it when it occurs." Id. at 415.).

Schrecker, Ellen W., No Ivory Tower: McCarthyism and The Universities (New York & Oxford: Oxford U. Press, 1986) (This book remains an important read. “McCarthyism was amazingly effective. It produced one of the more severe episodes of political repression the United States ever experienced. It was a peculiarly American style of repression—nonviolent and consensual. Only two people were killed; only a few hundred went to jail. Its mildness may well have contributed to its efficacy. So, too, did its structure. Here, it helps to view McCarthyism as a process rather than a movement. It took place in two stages. First, the objectionable groups and individuals were identified—during a committee hearing, for example, or an FBI investigation; then, they were punished, usually by being fired. The bifurcated nature of this process diffused responsibility and made it easier for each participant to dissociate his or her action from the larger whole. Rarely did any single institution handle both stages of McCarthyism. In most cases, it was a government agency which identified the culprits and a private employer which fired them.” “We know the most about the first stage of McCarthyism, for it received the most attention at the time. Yet the second stage is just as important. For without the almost automatic imposition of sanctions on the people who had been identified as politically undesirable, the whole anti-Communist crusade would have crumbled. In a sense, it was this second stage that legitimized the first. Had HUAC’s targets been able to survive their encounters with the committee without losing their jobs, the committee would have lost its mandate. This did not happen. On the contrary, private employers often rushed to impose sanctions on these men and women, sometimes without waiting for the official machinery to run its course…. By the time investigative furor that characterized the first stage of McCarthyism abated in the late fifties, thousands of people had lost their jobs. And thousands more, whether realistically or not, feared similar reprisals and curtailed their political activities.” Id. at 9. Moral cowardice in the university context is nothing new. “Of course, by the time the [University of Minnesota] administration banned the China movie in late 1952 and certainly by the time [Owen] Lattimore spoke at Harvard in early 1954, few academic administrators were actually in the position of having to reject student demands for an unpopular speaker. McCarthyism was at its height, and few students were willing to risk the notoriety and supposed damage to their future careers involved in sponsoring a controversial speaker. Early in 1952, for example, the student member of the Yale Political Forum withdrew a speaking invitation they had given to Howard Fast. The following year, Harvard students did the same. Fast has been asked to speak about ‘Communism and Hollywood’ at the Harvard Law School Forum, but the recent congressional investigations into the University made the law students who had invited Fast uneasy. They rescinded their invitations, explaining that ‘putting on such a program at this time would not only embarrass, but hurt, several people connected with the University.’ There was opposition—from the faculty. After Arthur Schlesinger, Jr., chided the law students for their fears, the student affiliate of the ADA renewed the invitation—with the proviso that Fast agree to debate with Schlesinger. [FN20. Harvard Crimson, June 17, 1952, April 8, 14, 15, 1953. So timid had Harvard Law School students become that after David Lubell, himself a law student, took the Fifth Amendment before the SISS, students would get up and leave the table when he sat down in the student cafeteria. A former graduate student from Chicago recalls that he couldn’t even get people to sign a petition to put a soft-drink vending machine in their laboratory. David Lubell, interview; Robert March, taped interview, in the author’s possession.]” Id. at 92-93. “McCarthyism also affected the institutional life of the nation’s colleges and universities. Here, it is hard to escape the conclusion that the failure to protect academic freedom eroded the academy’s moral integrity. Professors and administrators ignored the stated ideals of their calling and overrode the civil liberties of their colleagues and employees in the service of such supposedly higher values as institutional loyalty and national security. In retrospect, it is easy to accuse these people of hypocrisy, of mouthing the language of academic freedom to conceal something considerably more squalid. Opportunism and dishonesty existed, of course, but most of the men and women who participated in or condoned the firing of their controversial colleagues did so because they sincerely believed that what they were doing was in the nation’s interest. Patriotism, not expedience, sustained the academic community’s willingness to collaborate with McCarthyism. The intellectual independence so prized by American academics simply did not extend to the United States government.” Id. at 340. McCarthyism represents an instance of an extreme assault on academic freedom. Yet the extremes of McCarthyism should not blind us to the less extreme, but still substantial encroachments on academic freedom. Academic freedom is today, as it always has been, under constant threat. Americans, though priding themselves in their alleged individuality and independence, do not cotton very much to dissent, they actually covet conformity and consensus. Americans, both on the left and on the right, are basically majoritarians. Consequently, the dissenters, nonconformists, the independent thinkers and actors, etc., are always at risk of being censured by the mob. Today, when most colleges and universities have misplaced their integrity as educational institution and have become mere market-driven businesses, the assault on academic freedom comes from college and university administrators and faculty needing to keep their students, their graduates, and the potential employers, etc., happy. The contours of academic freedom are defined by whether, and the extent to which, the college’s and university’s constituencies agree with or voice disagreement with a particular point of view. Academic freedom should not be left to the whim of market forces.).

White, Theodore H., Fire in the Ashes: Europe in Mid-Century (New York: William Sloane Associates, 1953) ("American diplomacy comes to the world's stirring politics bearing two traditions that have confused and contradicted each other from the beginning of our country's history." "One is the tradition of the crusade, and the other the tradition of the deal." "It is the crusade we usually learned about in our history books--the brave words of 'Unconditional Surrender,' of 'Fifty-Four Forty or Fight,' of 'Freedom of the Seas,' 'Millions for Defense, Not One Cent for Tribute.' The deals are less often honored. Yet it was the deal with a ruthless dictator that added the Mississippi Valley to the original revolutionary states, even as that dictator prepared to wipe out liberty in Europe. It was a deal that stretched the northern border of our country to the Pacific along the forty-eight parallel although the nation had screamed 'Fifty-Four Forty of Fight.' It was a deal which settled the most unfortunate war in our history, in 1815, when three of the best poker-players of Congress sat down to undo the war the 'War Hawks of Congress' had screamed into being. Only after the death of Abraham Lincoln and the seizure of power by the Congressional zealots of Reconstruction did victory, total and unchallenged, complete and uncompromising, become the major attitude of American diplomacy in the world. And only the ever-swelling power of America in a world that could not stay her made this attitude possible." "Today [that is, early 1950s], America stands more perilously poised than ever between the alternatives of the crusade and the deal, at a time when our power is, for the first time in a century, limited by powerful enemies. The alternatives of crusade and deal reach deep into American domestic politics, too, for they aggravate the sputtering institutional rivalry between Congress and our Presidential leadership. Since, in the emotional language of American politics, 'crusade' is a far more appealing word than 'deal,' by corollary, the Congress of the United States has always been in favor of the crusade, while the President and his Executive officers have been forced, whatever their professional faith, over and over again into the deal." Id. at 394-396. Interesting! Fifty plus years later, one might ask whether any responsible governmental or political leaders are pursuing the deal alternative. Doing the deal requires contact, discussion, negotiation, compromise. and cooperation, not the go-it-along and mere coalition-of-the-barely-willing mentally. Certainly neither the Bush administration nor the Congress spoke the language of deal, and Mr. Bush explicitly spoke the language of crusade post 9/11. What has that emotional language of the crusade gotten us? All those dead American soldiers and marines? It certainly has not made us any safer.).

Williams, T. Harry, Huey Long (New York: Knopf, 1969) (An therein lies an important revelation about Huey Long. He was not satisfied just to win a victory of principle over an opponent not content merely to establish his principle as a matter of law. Such behavior would have violated every rule of his training. He was educated in a peculiar school of politics. It was a school that emphasized the personal element in the political art. You remember your friends, you repaid your enemies. It stressed about all the desirability and the necessity of personal power. You must have power to do anything good. You may have ideals, such as love of the poor, but first you get the power. You may have to do some things you don't like to get it, but you do them. Id. at 45-46.).

November 9, 2007


Brettschneider, Corey, Democratic Rights: The Substance of Self-Government (Princeton & Oxford: Princeton U. Press, 2007) (This extended essay is interesting—and creative—but, ultimately wrongheaded. Perhaps I got off on the wrong foot with it when I read the first, and self-congratulatory, sentence of the ‘Acknowledgments’: “This book reflects the belief, at the heart of both my teaching and research, that incorporating political theory into the study of public policy and constitutional law enhances all of these fields of inquiry.” Id. at ix. Like, wow! That is really original, isn’t it? Anyway he states: “In this project … I offers an alternative to the traditional divide between procedural theories of democracy and substantive theories of justice. I argue that democracy is an ideal of self-government constituted by three core values—political autonomy, equality of interests, and reciprocity—with both procedural and substantive implications. I contend that what are often thought of as distinctly liberal substantive rights to privacy, property, and welfare can be newly understood within a theory of democracy.... I argue, for example, that rights to welfare are central to democratic legitimacy, as are free speech rights for convicted criminals and the right not to be executed by the state.” Id. at 3. When push comes to shove a careful reader will find that this essay wanting.).

Cook, Philip J., Paying the Tab: The Costs and Benefits of Alcohol Control (Princeton & Oxford: Princeton U. Press, 2007) (“In my lifetime no president has thought to declare a ‘war on alcohol.’ There is no perception of an alcohol-abuse crises…. But of course the problematic nature of alcohol remains, even if it is not widely condemned. Alcohol abuse is all too prevalent, and an endemic source of harm in the form if injuries, early death, unfulfilled potential, family strife, crime, and violence…. The cumulative effect is much greater than the toll from illicit drugs. A ‘war’ is not called for, but alcohol surely deserves our serious attention.…. What I’ve learned after of researching these matters is that the ‘tab’ is much larger than it needs to be or should be. An important remedy has been neglected—the systematic regulation and taxation of the industry. As a result, beer and liquor have become too cheap and readily available, a big change from the 1950s and 1960s that facilitates excess consumption. My aspiration for this book is to make the case for reviving alcohol-control policy to help right the balance between the two sides of the problematic commodity, conveying as it does such harm and such pleasures.” Id. at xi. This is a very worthwhile read.)

Donald, Aida D., Lion in the White House: A Life of Theodore Roosevelt (New York: Basic Books, 2007) (This short biography provides an overview of the man, his character, and his accomplishments. “Theodore enrolled in the Columbia Law School and also read law in his Uncle Robert’s firm. Seemingly, he had found a vocation. He often ran the miles to the school and back each day, continuing to meet each new challenge with energy.” “Theodore, however, soon grew disenchanted with the law. Only later did he explain, more than once in letters and writings, that he found the law lacking in social justice and only a cover to protect wealth and business. It was a critical judgment, made early in life, which would soon carry into a turbulent political career. He dropped out of law school before his second year was out; he was ready for a total change. He would look for a profession in which he could make a difference, one that would totally engage him and burn up his immense energy. He would wrestle this new world bare-handed.” Id. at 34-45.).

Karelis, Charles, The Persistence of Poverty: Why the Economics of the Well-Off Can’t Help the Poor (New Haven & London: Yale U. Press, 2007) (an interesting essay).

Nagareda, Richard A., Mass Torts in a World of Settlement (Chicago & London: U. of Chicago Press, 2007) (“Simply put, the evolving response of the legal system to mass torts has been to shift from tort to administration. With the term ‘administration’ I invoke the notion of an ongoing, institutionalized regime that sees its subject not as a series of isolated events but, instead, as suitable for systematized treatment. The features that define a mass tort have precipitated a convergence, in practical operation, of tort litigation—lawsuits at the behest of private parties represented by private attorneys—and the administrative functions of public agencies. The sheer numbers of claims, their geographic breadth, their reach across time to unidentified future claimants, and the factual patterns, together, demand the kind of systematized treatment characteristic of administrative processes.” Id. at viii. ‘Mass torts accentuate the role of lawyers as agents. As in traditional tort litigation, the endgame for a mass tort dispute is not trial but settlement. But the scope of the settlement differs. Here, the most ambitious settlements seek to make and enforce a grand, all-encompassing peace in the subject area of the litigation as a whole. Lawyers, once again, act as the designers of these deals, and the strategic motivations of lawyers on both sides shape the design of the peace.” “One of the significant facet of the mass tort phenomenon consists of the emergence and operation of an elite segment of the personal injury plaintiffs’ bar. These lawyers specialize in the identification, development, and comprehensive resolution of whole categories of mass tort disputes. The story of this mass tort plaintiffs’ bar—indeed, the intense, competitive relationship among such law firms—is as much a part of the mass tort world as legal doctrine.” “In effect, mass torts have endowed with a power of governance the agents who design the transactions to resolve mass tort disputes on a comprehensive basis. As used here, the term ‘governance’ embraces two related features: the power to alter preexisting legal rights and the power to make those alterations bonding upon individuals in order to advance the greater good. As in the world of government itself, the power of governance wielded by peacemaking lawyers encompasses a power to undertake law reform, to make trade-offs between conflicting goals, and to improve the chosen trade-off finality. This book seeks to expose this governing power, to assess its operation, and to develops a framework for the resolution of mass tort disputes that includes appropriate constraints upon the designing agents.” Id. at ix-x.).

Solove, Daniel J., The Future of Reputation: Gossip, Rumor, and Privacy on the Internet (New Haven & London: Yale U. Press, 2007) (This is nontechnical read, but well worthwhile. For those of us who are no longer younger, this underscores how our standards for privacy have more or less been abandoned by the current generation of teenagers, young adults, and even those in their thirties. What kind of society will develop if there is virtually no place/space which is truly private? What kinds of relationships will we have with one another where just about anything we say, write, do, etc., is potentially and readily available to be disseminated over the internet and, therefore, globally? Perhaps ‘privacy’, like ‘freedom;, is just a word.) .

Taylor, Stuart, Jr., & KC Johnson, Until Proven Innocent: Political Correctness and The Shameful Injustices of the Duke Lacrosse Rape Case (New York: Thomas Dunne Books/ St. Martin’s Press, 2007) (I think this is a very worthwhile read, and it is properly subtitled ‘Political Correctness and The Shameless Injustices of the Duke Lacrosse Rape Case.’ However, I would add a further subtitle: “And White Male Victimhood.” There are numerous problems with the American judicial system, and abuse of prosecutorial discretion is a big one of them. However, I would suggest that the overwhelming majority of the defendants on the losing end of that abuse are minorities and the poor, those who cannot hire reasonable competent lawyers at the earlier stages of the process and, therefore, are unable to nip the prosecution in the bud. Minis the political correctness aspect of the case, what the defendants in this case experienced occurs every day all across America. Yet, most of us don’t care because it is not happening to us or to our relatives, and because we assume that the system seeks truth and justice. Prosecutors don’t get rewarded for truth and justice, they get rewarded for convictions. I am also reminded of the days where even mainstream feminists were buying wholesale into radical feminism chant that ‘all men are rapist’ (see, for instance, Susan Brownmiller’s book, Against Our Will, which the authors mention but not for this proposition). That changed as those voices became wives to men, mothers to sons, and rediscovered that they were also daughters and sisters of men. If all men are rapists, then their husbands, sons, brothers and fathers are all rapist. Here the system which had not been working, that has not been fair, that has not been transparent, etc., only now seem problematic because it is not about those distant others but about those close to us.)

Toobin, Jeffrey, The Nine: Inside the Secret World of the Supreme Court (New York: Doubleday, 2007) (a light, though interesting, read for those who do not consume survive on reading Supreme Court cases and the New York Times’ and National Public Radio’s reporting of the same).

Tushnet, Mark, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton & Oxford: Princeton U. Press, 2007) (This book, which brings together several articles by Tushnet, is a very much a worthwhile read for those interested in Constitutional law and/or standards of judicial review, and who appreciate the importance of being less parochial and more cosmopolitan in the study of law. “This book brings to together two of the important intellectual or theoretical issues of concern to students of comparative constitutional law as it has developed in the United States over the past decade. First, what is the proper role of courts in constitutional systems that generally comply with rule-of-law requirements? Second, what substantive rights do, should, or can constitutions guarantee? Should they protect second-generation social and economic rights and third-generations cultural and environmental rights, and if so, how, and in what venues? I argue that the comparative study of constitutions brings out underappreciated connections between the answers to these two questions.” “The reason is that the ‘new Commonwealth model” of judicial review offers an important alternative to the forms of judicial review familiar in the United States. In that new model, courts assess legislation against constitutional norms, but do not have the final word on whether statutes comply with those norms….” “I call this new model of judicial review weak-form judicial review, in contrast with the strong form of judicial review in the United States…. At its heart is the power of courts to declare statutes enacted by a nation’s highest legislature unconstitutional, and to make that declaration practically effective by using the standard weapons at a court’s hands—injunctions against further enforcement of the statute by executive officials, dismissals of the prosecutions under the statute, awards of damages on behalf of people injured by the statute’s operation backed up by the potential to seize the defendant’s property.” Id. at xi.).

Unger, Roberto Mangabeira, Free Trade Reimagined: The World Division of Labor and the Method of Economics (Princeton & London: Princeton U. Press, 2007) (In order to appreciate the arguments –or moves—made by Unger or, for that matter, to evaluate their merit, one probably needs a decent grounding in the history of economic thought. Without my commenting as to the merits of the arguments, this is an interesting read because, if for no other reasons, it provides an intelligent leftist, law and economic, critique of international trade and globalization. From the jacket cover: “One message of the book is that we need not choose between accepting and rejecting globalization; we can have a different globalization. Traditional free trade doctrine rests on shaky empirical and theoretical ground. Unger takes a new approach to show when international trade is likely to be useful or harmful to the socially inclusive economic growth that every nation wants. Another message is that the movement of people and ideas is more important than the movement of things and money, and that freedom to change the institutions defining a market economy is just as important as freedom to exchange goods on the basis of those institutions.” Unger, a professor of law at the Harvard Law School, is also Brazil’s Minister of Long-Term Planning.)

Zegart, Amy B., Spying Blind: The CIA, the FBI, and the Origins of 9/11 (Princeton & Oxford: Princeton U. Press, 2007) (“Nor were temporary rotations commonly practiced. Although Director Tenet declared in the late 1990s that all intelligence officials were required to do a tour of duty in another intelligence agency before being promoted to the senior ranks, every agency, including the CIA, ignored him. When agencies did fill these rotational positions, moreover, they often sent mediocre employees. As one senior intelligence official grumbled, “I often think of writing a vacancy notice [for temporary transferees to his agency] that says, ‘only stupid people doing unimportant work need apply,’ or ‘send us your tired, your sluggish, your marginally brain dead.’” Id. at 41. Though clearly the book should be of interest to those concerned with national security law, reading it will provide insights as to why most governmental agencies fail. In a sense they don’t fail because they are rarely shut down. However, they do fail in the sense that they do not properly adapt to changed environment, i.e., their rate of internal change is slower than the rate of external change, etc. In reading the book I was reminded of the movie Traffic. After that movie every politician, every administrator, every business CEO, everyone’s mother was talking about “thinking outside the box.” Yet, the reality was and remains that few, if anyone, think outside the box because the engrained culture of most institution’s is very much ‘in the box thinking.’ I would suggest that American education encourages ‘in the box thinking.’ Despite all that talk of individualism, we are a nation of conformist. The radicals---the ones who think outside the box, the one who say ‘there is something wrong with this picture,’ the one who say ‘this might have worked in the past, but will not work now,’ etc., don’t get promoted, do not get encouraged, and usually get push aside and out. So, when your students are thinking about how to improve national security law (assuming that they are thinking about not just what the law is, but also thinking about what the law should be), they might want to consider that the larger problem is not a law problem but a cultural stagnation problem. Case in point: “Here, too, resistance to change stemmed from past practice, incentives, culture, and history. For generations, newly hired case officers were taught how to detect car bombs but not how to understand and work effectively in foreign cultures. In fact, instructors often told trainees that cultural distinctions did not matter, that an operation was the same, regardless of where it took place or what it was targeting—an attitude captured by the saying, ‘an op is an op.’ Developing deeper country or linguistic expertise throughout an officer’s career was not encouraged. DO policy [this is, policy of the CIA’s Directorates of Operations] required frequent rotations to different countries and rewarded generalists, not specialists, with promotions and assignments. Robert Baer, one of the CIA’s veteran Middle East agents, put it this way: ‘The DO has an attitude that people are fungible. It’s like General Motors. It’s a Harvard Business School idea. It’s the wrong approach. We need to build expertise, train people and keep them in one area for longer periods of time.’ When Baer tried to enroll in a master’s program in Middle Eastern studies at night, on his own time, the CIA resisted. In the end, the agency approved his studies, but refused to pay for the entire program, insisting on separate approvals for every course instead. ‘No, one in the DO ever goes to graduate school,’ Baer complained. ‘We don’t want people to have advanced degrees.” Id. at 94-95.).

REMEMBER: "Self-righteousness [ ] spawns arrogance, selfishness, indifference.... Don’t let the weight of things numb you. Read, think, disagree with everything, if you like – but force your mind outward." Anton Myrer, Once an Eagle (Carlise, Pa.: Army War College Press, 1977), at 194.


Bennett, Alan, The Uncommon Reader: A Novella (New York: Farrar, Straus & Giroux, 2007).

Jones, Lloyd, Mister Pip: A Novel (New York: The Dial Press, 2007).

Martin, Valerie, Trespass (New York: Doubleday, 2007).

Murr, Naeem, The Perfect Man: A Novel (New York: Random House Tradeback Original, 2007).

Nemirovsky, Irene, Fire in the Blood: A Novel translated from the French by Sandra Smith ((New York: Knopf, 2007).

Patchett, Ann, Run: A Novel (New York: Harper, 2007).

Roth, Philip, Exist Ghost (Boston & New York: Houghton Mifflin, 2007) (“’Reading/writing people, we are finished, we are ghosts witnessing the end of the literary era….’” Id. at 186.).

Roth, Philip, Zuckerman Bound: A Trilogy and Epilogue 1979-1985: The Ghost Writer, Zuckerman Unbound, The Anatomy Lesson, The Prague Orgy (New York: Library of America, 2007).

Russo, Richard, Bridge of Sighs (New York: Knopf, 2007) ("It was human nature, she explained. You don’t identify with people worse off than you are. You make your deals, if you can, with those who have more, because you hope one day to have more yourself. Understand that, she claimed, and you understand America, not just Thomaston.” Id. at 11.).

Seiffert, Rachel, Afterwards: A Novel (New York: Pantheon, 2007).

Stasiuk, Andrzej, Nine: A Novel translated from the Polish by Bill Johnston (New York: Harcourt, 2007).

Vassanji, M. G., The Assassin’s Song: A Novel (New York: Knopf, 2007).

Vassanji, M. G., The In-Between World of Vikram Lall: A Novel (New York: Knopf, 2004).

November 2, 2007


Bales, Kevin, Ending Slavery: How We Free Today’s Slaves (Berkeley & Los Angeles: U. of California Press, 2007) (Did you know that “twenty-seven million people are in slavery” today?” Id. at 14. “Then some of the questions hit us right in the heart: Are we willing to live in a world with slavery? Are we willing to share in the profits it generates? Is there some difference between our own children and children forced into slavery that makes their enslavement acceptable? Do all humans have a right to freedom, or is freedom just for the fortunate? Are we willing to pay more for goods made by free people? What would we be willing to give up if it meant slaves were freed? What if our government had to intervene in other countries? Are we willing to pay more taxes to pay for the rescue and rehabilitation of slaves? What can you and I do to stop slavery, and what should we do first?” “This book is about answering those questions.” Id. at 25.).

Eisgruber, Christopher L., The Next Justice: Repairing the Supreme Court Appointments Process (Princeton & Oxford: Princeton University Press, 2007)(Nice, short read, but nothing eye-opening.).

Klarman, Michael J., Unfinished Business: Racial Equality in American History (Oxford & New York: Oxford U. Press, 2007).

Lilla, Mark, The Stillborn God: Religion, Politics, and the Modern West (New York: New York: Knopf, 2007)(This is a very worthwhile read, though a rigorous background in Western philosophy would be useful to appreciate some of the nuances of the argument. “For over two centuries, from the American and French revolutions to the collapse of Soviet Communism, political life in the West revolved around eminently political questions….Today we have progressed to the point where we are again fighting the battles of the sixteenth century—over revelation and reason, dogmatic purity and toleration, inspiration and consent, divine duty and common decency. We are disturbed and confused. We find it incomprehensible that theological ideas still inflame the minds of men, stirring up messianic passions that leave societies in ruin. We assumed that this was no longer possible, that human beings had learned to separate religious questions from political ones, that fanaticism was dead. We were wrong. Id. at 3. “The Stillborn God is not a fairy tale. It is a book about the fragility of our world, the world created by the intellectual rebellion against political theology in the West….The West does appear to have passed some kind of historical watershed, making it barely imaginable that theocracies could spring up among us or that armed bands of religious fanatics could set off a civil war. Even so, our world is fragile—not because of the promises our political societies fail to keep, but because of the promises our political thought refuses to make.” Id. at 6-7. “Those of us who have accepted the heritage of the Great Separation must do so soberly. Time and again we must remind ourselves that we are living an experiment, that we are the exceptions. We have little reason to expect other civilizations to follow our unusual path…. Id. at 308.).

Oates, Joyce Carol, The Journals of Joyce Carol Oates edited byGreg Johnson (New York: Ecco Press, 2007)("July 29, 1976.... The secret of being a writer: not to expect others to value what you've done as you value it. Not to expect anyone else to perceive in it the emotions you have invested in it. Once this is undestood, all will be well. Not indifference, not apathy--but self-containment is the result." Id. at 130. "September 1, 1980.... Bellefleur is #11 in this week's New York Times best-seller list. The competition, however, is crushing. Competition!--novels by people no one in the 'literary' world has ever heard of, except Irving Stone, perhaps. Stephen King with a novel about an eight-year-old who sets things on fire with his eyes. (The most remarkable best-seller at the present time, however, is 'How to Flatten Your Stomach.' It's thirty-seven pages long. Has been on the list for over a year. Yes, it consists of exercises we all know.... How can one underestimate the intelligence of the American public?). Id. at 387.).

Pager, Devah, Marked: Race, Crime, and Finding Work in an Era of Mass Incarceration (Chicago & London: U. of Chicago Press, 2007) (This sociological study is a short, but most worthwhile read.).

Shipley, David; and Will Schwalbe, Send: The Essential Guide to Email for Office and Home (New York: Knopf, 2007) (This is my new bible, and had caused me to reduce my email correspondence significantly. It has also caused me to resent just about any email I receive. There is a lot of worthwhile information and good sense advice here. My two favorites are these: “The fact that email always provides a searchable record means that you can be held accountable for our electronic correspondence…. Rule: If you’re working with weasels, watch their email like a hawk.” And, “The ease with which an email can be forwarded poses a danger…. Rule: never forward anything without permission, and assume everything you write will be forwarded.” Id. at 27-28. Needless to say, I want to send an email to everyone I know suggesting they purchase and read this book. Having read the book, I am exercising restraint.).

Tushnet, Mark V., Out of Range: Why the Constitution Can’t End the Battle Over Guns (Oxford & New York: Oxford U. Press, 2007).

OPINION | October 29, 2007
Op-Ed Contributor: The Wiretap This Time
During my lifetime, there has been a sea change in the way that politically active Americans view their relationship with government.

Elia Kazan, Gentlemen's Agreement (1947).
Elia Kazan, Pinky (1949) ("Can't you see? You can't live without pride.").