December 5, 2007

SOME READINGS I WANTED TO GET IN BEFORE GRADING 60+ CIVIL PROCEDURE EXAMS

Chua, Amy, Day of Empire: How Hyperpowers Rise to Global Dominance–And Why They Fall (New York: Doubleday, 2007).

Ellis, Joseph J., American Creation: Triumphs and Tragedies at the Founding of the Republic (New York: Knopf, 2007).

Friedman, Lawrence M., Guarding Life’s Dark Secrets: Legal and Social Controls Over Reputation, Propriety, and Privacy (Stanford: Stanford U. Press, 2007) (This is a good read. “Consider, for example, the social norm against snitches and snitching. You might imagine it almost a patriotic duty to rat on somebody, but as the term ratting suggests, the situation is exactly the opposite. Ratting is severely condemned by people in general. The norm against snitching, like the norm against blackmail, is a form of protection for people who lead a double life or who have something to cover up. It is, however, much broader than the norms discussed here—it is particularly strong in deviant groups and among delinquents, jailbirds, and the like. In prison a snitch is likely to end up with a knife stuck in his ribs. Emphatically, though, the norm against snitching is not just a norm of criminals and other bad people; it is common among schoolchildren, university students, and other groups that are hardly deviant. There are rules to protect whistle-blowers, but the reality is that ‘the cost of reporting peers for rule breaking and occupational misconduct usually outweigh the benefits.’ In a way the norm against snitching meshes with the norm against blackmail: It is wrong to ask for money in exchange for your silence; but it also considered quite wrong, under many circumstances, to report your information even to the proper authorities. The safest course, if you know a guilty secret, is to keep it to yourself.” Id. at 99-100. Those of you who are familiar with Professor Friedman’s work in legal history know that he is a member of a rapidly thinning breed of first-rate legal scholar thoroughly grounded in the classics, history, and literature.)

Haldeman, Joe, The Forever War (The Author’s Preferred Edition) (New York: EOS, 1991) (science fiction, originally published in 1974).

Lippmann, Walter, Liberty and the News with a new foreward by Ronald Steel, and a new afterword by Sidney Blumenthal (Princeton & Oxford: Princeton U. Press, 2008) (Though originally published in 1920, does not this sound current? “Everywhere today men are conscious that somehow they must deal with questions more intricate than any that church or school had prepared them to understand. Increasingly they know that they cannot understand them if the facts are not quickly and steadily available. Increasingly they are baffled because the facts are not available; and they are wondering whether government by consent can survive in a time when the manufacture of consent is an unregulated private enterprise. For in an exact sense the present crisis of western democracy is a crisis in journalism.” Id. at 2. We are too busy/lazy to ask the hard questions ourselves; and those whose profession to the hard questions for us don’t. Today it is worse, as ‘news’ has become more entertainment. And, many of the so-called ‘public intellectuals’ are, for lack of any better description, merely talking-heads and media hucksters. Get yourself interviewed for the sound bite or the one-line quote into the paper, even if there is little substance to it all. STOP THE MADNESS.. LEARN HOW TO THINK FOR ONESELF. GET INFORMED! BECOME KNOWLEDGEABLE!).

Pinsky, Robert, Gulf Music: Poems (New York: Farrar, Straus, & Giroux, 2007).

Samet, Elizabeth D., Soldier’s Heart: Reading Literature Through Peace and War at West Point (New York: Farrar, Straus & Giroux, 2007) (This relatively short book should, I think be read by today's college students and their teachers. Most of college and university--and law school--education is bullshit with few graduating with a true sense of the interplay among, action, deliberation (e.g., critical thinking) and honor. The word 'literature' in the book's subtitle, "Reading Literature Through Peace and War at West Point," is not gratuitous. and reminded me how poorly read is the typical American law school graduate. It is not really their fault, the fault rests with the undemanding education system. In this book the author introduces the reader to a a group of young people who have managed to excape the glibness of the millenium generation.).

Schlesinger, Arthur M. Jr., The Politics of Hope (1963) and The Bitter Heritage: American Liberalism in the 1960s (1967) (Princeton & Oxford: Princeton U. Press, 2008) (This collects under one cover two earlier collection of Schlesinger’s essays from the 1950 and 1960s. This is a very good read. One of my favourite essays is ‘Walter Lippmann: The Intellectual vs. Politics‘. “His career, in a sense, has been a long and troubled search to define the role of the intellectual in the polity of a free society.” “His broad answer to this quest has been plain enough. The office of the intellectual, Lippmann has generally proposed, is to articulate the guiding faith which will enable society so to discipline itself and focus its purposes that its members can live effective, coherent, and fulfilled lives. To give the intellectual this function is to imply, of course, that such a central faith exists—that there is some ultimate perspective in terms of which everything else will fall into proper place, Lippmann has believe this during most, though not all, of his life; and, in affirming the possibility of some sort of basic order and rationality in the universe, he has perhaps betrayed the fact that, of the two Harvard philosophers who influenced him most, one influenced him more profoundly than the other. Both George Santayana and William James greatly excited young Lippmann; but in the end, Santayana’s realm of essences evidently struck deeper chords than James’s radical empiricism. Lippmann used to say in later years that it was Santayana who saved him from becoming a pragmatist.” Id. at 159-160. And, how does this, though written more than forty years ago, sound in the today’s ear? ‘The world is filled with contradiction and evil and will continue to be so for a long time. We cannot hope to resolve every contradiction and overcome all the evils and produce an American solution to every problem—especially if we try to do so on the basis of stereotypes which express the reality of another generation. It is bad enough to be a messiah; it is even worse to be a messiah spouting clich├ęs. And, if we insist on casting ourselves as the world’s savior, the effect on ourselves will be as fateful as on the rest of mankind. For no one can play God with impunity. ‘He who would act the angel,’ said Pascal, ‘acts the brute’—a warning alike to men and nations.” Id. at 385. And, cannot the following comment on Vietnam, from ‘The Roots of Our Trouble,’ find applicability to today’s Iraq? “How have we managed to imprison ourselves in this series of dilemma? One reason is a resurgence of old illusions—the illusion of American omnipotence and the illusion of American omniscience.” Id. at 440.).

Slobogin, Christopher, Privacy at Risk: The New Government Surveillance and the Fourth Amendment (Chicago & London: U. of Chicago Press, 2007) (This should remind all you so-called law abiding citizens how little privacy—and liberty--you actually have in America. “This book is about an insidious assault on our freedom and the failure of the law to respond to it. The assault comes from government monitoring of our communications, actions, and transactions. The failure results from the inability or unwillingness of courts and legislatures to recognize how pervasive and routine this government surveillance has become. To ensure that this powerful tool is not abused this book argues that something equally powerful—the Constitution, and in particular the Fourth Amendment to the Constitution—must stand guard.” Id. at x. “The cornerstone of this bulwark should be the expectation-of-privacy concept. Katz‘s [i.e., Katz v. United States, 389 U.S. 347 (1967)] interpretation of the Fourth Amendment has been declared incoherent, overly susceptible to manipulation, and insufficiently descriptive of the values underlying the amendment. But as this book demonstrates, expectations of privacy and autonomy can be meaningfully gauged and thus need not be the product of judicial whimsy. The book also makes clear that for physical and transaction surveillance, at least, no other Fourth Amendment model provides a useful basis for regulation.” Id. at 217. It is important to read the endnotes.).

Stone, Geoffrey R., Perilous Times: Free Speech in Wartime From the Sedition Act of 1798 to the War on Terrorism (New York: Norton, 2004) (This title appeared on an earlier list of suggested readings. I include it here because Professor Stone has now published an abridged version under the title War and Liberty. See below.).

Stone, Geoffrey R., Top Secret: When Our Government Keeps Us in the Dark (New York: Rowman & Littlefield, 2007) (This is a nice, short little ‘primer’ or ‘handbook’ on the First Amendment. “In this volume, I explore whether the measures recently taken and suggested by the executive branch to prevent and punish the public disclosure of classified information are consistent with the First Amendment. I address four questions: (1) In what circumstances may the government discharge and/or criminally punish a public employee for disclosing classified information to a journalist for the purpose of publication? (2) In what circumstances may the government criminally punish the press for publishing such information? (3) In what circumstances may the government criminally punish a journalist for receiving or soliciting such information from a government employee for the purpose of publication? (4) In what circumstances may the government compel a journalist to disclose the identity of the source of such information so it can criminally punish the source?” Id. at 3-4. There is a good “Selected Bibliography.”).

Stone, Geoffrey R., War and Liberty: An American Dilemma: 1790 to the Present (New York: Norton, 2007) (This is an abridgement and adaption of Perilous Time. See above. “Not surprisingly… in Schenck, Korematsu, Dennis, and other wartime decisions, the Supreme Court has applied constitutional standards in a way that accords the president and Congress the benefit of the doubt. Although Congress and the president have often underprotected civil liberties in wartime, there is not a single instance in which the Supreme Court has overprotected those liberties in a way that caused any demonstrable harm to the national security. The argument that courts cannot be trusted because they will unduly shackle our nation’s ability to fight is simply unfounded. There is no reason in logic or national experience to believe that courts would give excessive protection to constitutional rights in a way that would jeopardize the national security.” “On the other hand…history is replete with instances in which we have excessively suppressed civil liberties without any compelling or even reasonable justification. The problem is not too much judicial enforcement of civil liberties in wartime, but too little.” Id. at 180.).

Theroux, Paul, The Elephanta Suite (Boston & New York: Houghton Mifflin, 2007) (fiction).

Winik, Jay, The Great Upheaval: America and the Birth of the Modern World 1788-1800 (New York: Harper, 2007) ("As the 1790s began, America entered the most critical period in its life-span, Russia towered as one of the great imperial powers of Europe, and France fell into a monumental revolution. But contrary to the way conventional histories like to tell it, none of these remarkable events occurred in isolation." "The world then was far more interconnected than we realize. Because they were separated by vast distances and slow communication, it if often assumed that America, and the world at large, emerged virtually independent from each other in the 1790s. But this is a peculiar form of chauvinism of the twenty-first century, an era marked by e-mail, faxes, BlackBerrys, and cell phones; it is also untrue. The late eighteenth century was stitched together in a myriad of ways almost unimaginable to the modern mind. From the French salons in Paris to the young American capital in Philadelphia, from the luxury of St. Petersburg to the candlelight dinners in Monticello and Mount Vernon, from the bustle of London and the market stalls of Warsaw to the mysteries of the seraglio in Constantinople and the steppes of the Crimea, great nations and leader were acutely conscious of one another. And year and year, they watched one another, learned from one another, and reacted to one another." Id. at xi-xii. "In the end, this founding moment of our modern world is not simply a story of America or France or Russia, or for that matter, any one nation. It is a global story, and it is an extraordinary tale." Id. at xiv.).

Yackle, Larry, Regulatory Rights: Supreme Court Activism, The Public Interest, and the Making of Constitutional Law (Chicago & London: U. of Chicago Press, 2007) (This book is a nice little essay. It provides a very good example of combining analysis with synthesis to more discourse forward. “I mean to argue that substantive federal constitutional rights draw their meaning exclusively from the great body of relevant Supreme Court decisions and that the only content those rights enjoy, abstracted from the Court’s decisions, can be reduced to a single doctrinal idea: Government acts constitutionally if it acts instrumentally, adopting policy as a sensible means of achieving public ends. This is an unorthodox claim. I do not propose merely that instrumentalism figures in the common understanding of rights associated with the Constitution. No one doubts that.… My argument runs deeper. With respect to the content of substantive individual rights, instrumentalism occupies the field entirely. Nothing else matters—not the textual provisions conventionally thought to establish rights, not the history behind those provisions, not the philosophical notions with which the Constitution is associated. I contend that rational instrumentalism is far more than a common element circulating through many bodies of constitutional law regarding substantive rights. Instrumentalism is the central doctrinal idea around which all else circulates.” Id. at 1-3.).

A final note: One of the readings includes one of my favorite quotes from Judge Learned Hand. “I believe that community is already in process of dissolution where each man begins to eye his neighbor as a possible enemy, where nonconformity with the accepted creed, political as well as religious, is a mark of disaffection, where denunciation, without specification or backing, takes the place of evidence, where orthodoxy chokes freedom of dissent. … The mutual confidence on which all else depends can be maintained only by an open mind and a brave reliance upon free discussion.”