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.