THREE, NOT COMPATIBLE, TAKES ON THE UNEASY RELATIONSHIP BETWEEN CHURCH AND STATE IN AMERICA.

Hamburger, Philip, Separation of Church and State (Cambridge: Harvard U. Press, 2002).

Nussbaum, Martha C., Liberty of Conscience: In Defense of America’s Tradition of Religious Equality (New York: Basic Books, 2008).

Wills, Garry, Head and Heart: American Christianities (New York: The Penguin Press, 2007).

POINTS, COUNTERPOINTS, CONTRAPOINTS ON THE POLITICS OF RACE IN CONTEMPORARY AMERICA …PLUS ONE HISTORICAL PERSPECTIVE

Ford, Richard Thompson, The Race Card: How Bluffing About Bias Makes Race Relations Worse (New York: Farrar, Straus & Giroux, 2008).

Kennedy, Randall, Sellout: The Politics of Racial Betrayal (New York: Pantheon, 2008).

Steele, Shelby, A Bound Man: Why We Are Excited About Obama and Why He Can’t Win (New York: Free Press, 2008).

Oakes, James, The Ruling Race: A History of American Slaveholders (New York: Knopf, 1982) ("How did the slaveholding class, which was molded by the same forces that shaped the nation, which fought America's wars and helped inspire its Revolution, a class which boasted of its patriotism, its devotion to freedom, its adherence to the major tenets of liberalism--how did such a class justify its continuing commitment to slavery and remain so steadfast in that commitment that it willingly separated from the Union it had helped create? In short, how could the slaveholders' ideology prove so malleable as to reinforce simultaneously their devotion to black slavery and to democratic freedom? It is here, in the triumph of the slaveholders' liberalism, that the legacy of slavery becomes a truly American dilemma." Id. at x-xi.).

THREE RECENT BOOKS FOR THOUGHTFUL LAW STUDENTS … AND OTHERS.

I want to preface this short list of suggested reading by noting what, I hope, is a promising trend. Almost every week someone mentions to me, in person or via email, that he or she reads The Comopolite Lawyer and, more important, is motivated to purchase and read some of the book listed. This is especially heartening when the person is a law student who, notwithstanding the many demands and times constraints imposed by the pursuit of a legal education, makes the time to read beyond their required course assingments and beyond the four corner of law.

Appiah, Kwame Anthony, Experiments in Ethics (Cambridge, Ma. & London: Harvard U. Press, 2008) (“This little book is an attempt to relate the business of philosophical ethics…to the work of scholars in a number of other fields and to the concerns of the ordinary, thoughtful person, trying to live a decent life. There are philosophers aplenty in these pages; but there are, as well, many other practitioners of what used to be called the moral sciences—psychologists, economists, anthropologists, and sociologist.” Id. at 1. I stop here to note what should be obvious: that law is not included within the moral sciences. I am not sure what law is, but I know it is not a science of any sort and, in its current state, certainly not a moral anything. “The relevance of the social sciences to our ordinary lives is fairly straightforward. Since what we should do depends on how the world is, our everyday decisions can draw on knowledge from any sphere. It is less obvious that empirical research could have any bearing on our specifically moral judgments. Yet in making our choices we must sometimes start with a vision, however, inchoate, of what it is for human life to go well. That was one of Aristotle’s central insights. It is my argument that we should be free to avail ourselves of the resources of many disciplines to define that vision; and that in bringing them together we are being faithful to a long tradition. In the humanities, I think, we are always engaged in illuminating the present by drawing on the past; it is the only way to make a future worth hoping for.” Id. at 1-2. This a worthwhile read for those with a serious bent toward philosophical ethics.).

Elhauge, Einer, Statutory Default Rules: How to Interpret Unclear Legislation (Cambridge, Ma. & London: Harvard U. Press, 2008) (“In short, whether or not judicial judgment is desirable, it is widely viewed to be a proposition of logic that unclear legislative instructions require shifting from an honest agent model to exercises of judicial judgment.” “Must the honest agent model be put aside once legislative instructions are unclear? My first task in this book will be to convince you that the answer is no. One can instead extend the honest agent model to cases of statutory uncertainty by adopting a set of statutory default rules that maximizes political satisfaction. My honest agent approach does not regard judges as robots that mechanically execute clear legislative instructions, nor as psychics who can always divine legislative intent. But it also rejects the view that judges are partners in lawmaking, or free to maximize their own ideological preferences where statutes are unclear. Instead, an honest interpretive agent should, when statutory meaning is unclear, adopt statutory default rules that probabilistically tend to maximize political satisfaction. Given the uncertainty left by unclear statutory language, no system of interpretation can ever be hopeful to always correctly ascertain political preferences, but the right set of default rules can minimize the expected political dissatisfaction.” “ My second task will be to show which set of statutory default rules would fulfill this goal. If I can accomplish those two task, I would be more than happy. But I am going to bet a bit greedy and also try to demonstrate two more things: that current interpretative practices actually embody those default rules, and that this approach to statutory interpretation is better than relying on judicial judgment.” Id. at 4-5. This book merits a close and careful read.).

Sunstein, Cass R., Worst-Case Scenarios (Cambridge, Ma. & London: Harvard U. Press, 2007) (“How do human beings and their governments approach worst-case scenarios? Do they tend to neglect them or do they give them excessive weight? Whatever we actually do, how should we deal with unlikely risks of catastrophe?” “For especially horrific outcomes, it is tempting to think that a 1 percent chance should be treated as a certainty. In so suggesting, Vice President Cheney took the same position as many people who are confronting a low probability of disaster. No less than environmentalists who focus on species loss, climate change, and genetic modification of food, Vice President Cheney urged that governments should identify, and attempt to prevent, the worst-case scenario.” Id. at 1. “More contentiously, I have argued that assigning monetary values to the key variables is essential in thinking about worst-case scenarios. Without being systematic about the costs and benefits of eliminating bad outcomes, progress can be difficult. To be sure, we need not be terribly enthusiastic about Richard Posner’s effort to come up with a monetary figure for the extinction of the human race…. For serious risks of 1/10,000 or 1/100,000, we can build on existing evidence to generate plausible figures for many bad outcomes. Few of us would be willing to pay $100,000, or $50,000. Or even $10,000 to eliminate a risk of 1/100,000. If we want to respect individual autonomy or to protect social welfare, we might well start with people’s actual practices when thinking about how, and how much, to reduce social risks. Id. at 281-282.).

REFLECTIONS ON OUR INCREASINGLY ILLIBERAL TIMES.

Bolano, Roberto, Nazi Literature in The Americas translated from the Spanish by Chris Andrews (New York: New Directions Books, 2008) (Fiction. From the jacket cover: “Composed of short biographies of imaginary pan-American authors...Nazi Literature describes…the writers’ lives, politics, and literary works. It includes bibliographies, cross-references, and an epilogue (‘For Monsters’). Although the writers are invented, they are all carefully and credibly situated in real literary worlds…. Bolano does not simply use his fascist writers for target practice: he manages to sketch character portraits that are often pathetically funny, sometimes surprisingly moving, and, on occasion, authentically chilling.”).

Coetzee, J .M., Diary of a Bad Year (New York: Viking, 2007) (Fiction (??). “It was always a bit of a lie that universities were self-governing institutions. Nevertheless, what universities suffered during the 1980s and 1990s was pretty shameful, as under threat of having their funding cut they allowed themselves to be turned into business enterprises, in which professors who had previously carried on their enquires in sovereign freedom were transformed into harried employees required to fulfil quotas under the scrutiny of professional managers. Whether the old powers of the professoriat will ever be restored is much to be doubted.” Id. at 35.).

Goldberg, Jonah, Liberal Fascism: The Secret History of the American Left From Mussolini to the Politics of Meaning (New York: Doubleday, 2007) (The basic thesis of this book is "that fascism, properly understood, is not a phenomenon of the right at all. Instead, it is, and always has been, a phenomenon of the left." Id. at at 7. Though the author makes some good points and even though, perhaps, his rather thin thesis is correct, the fact is that this is a very poorly argued book. It is not really worth reading, except that I am quite certain we will be hearing, in some form or another, many of the weak arguments and attacks on American liberals for some time to come and especially during the 2008 presidential election. Placing the side that 'liberals' and 'leftist,' etc., are more or less lumped together in this book, liberals have opened themselves up to some of the attacks presented here because the have trivialized the distinction between the private and public spheres. If everything is in the public sphere, then everything is open to public, governmental, or social regulation. And, the author is certainly correct in pointing out the overuse and misuse of the label 'fascist' by liberal against any idea or anyone holding a position to the right of liberalism. Calling a position fascism probably does not move the argument or discussion forward. No, not even when, turning the tables, one speaks of 'liberal fascism'. One of the dangerous traps thinking people must actively work to avoid is the trap of only reading, listening to, or talking with those whose point of view they accept, and failing to read, listen to, or talk with those with whom they disagree. In this new cyperspace world, it is far too easy to get oneself locked in a cyperspace community where everyone there is a virtual clone of everyone else. Read widely; and especially read those with whom one disagrees.).

O’Neil, Robert, Academic Freedom in the Wired World: Political Extermism, Corporate Power, and The University (Cambridge: Harvard U. Press, 2008) (I would think all members of the academic community would find reading this worthwhile. Then again… “I have discovered three elusive truths that have helped materially to shape this book: First, that most university professors are relatively indifferent to academic freedom threats, which they typically view as someone else’s problem; second, that the defense and survival of academic freedom depends most upon the commitment of those faculty members who are least likely to need its protection for their own careers; and third, that academic freedom is most severely tested by outspoken colleagues with whom most mainstream scholars would not normally or willingly associate. All of that makes academic freedom a curious concept, not easily defined and poorly understood beyond (and even within) the collegiate community.” Id. at viii. Thus those few who value ideas, especially new and unorthodox ideas, or who think universities should be incubators for such ideas, should read this book. It contain worthwhile analysis and synthesis.)

TWO BOOKS—EACH QUITE DIFFERENT FROM THE OTHER--FOR THOSE WHO APPRECIATE POLITICAL HISTORY.

Schlesinger, Arthur M. Jr., Journals 1952-2000 edited by Andrew Schlesinger and Stephen Schlesinger (New York: The Penguin Press, 2007) (Does this entry from April 27, 1967, not sound familiar and current? "We are reaching some sort of crisis on Vietnam. LBJ has evidently decided on a quick and brutal escalation of the war. It was clear in February that he did not wish negotiation until the existing military balance could be turned considerably in our favor; and his clear intention now is to bomb North Vietnam until Hanoi is prepared to sue for peace on terms which will meet Rusk's idea of a satisfactory settlement. More than that, the administration is apparently determined to advance the proposition that dissent is unpatriotic, and has brought General Westmoreland back for this purpose." "The irony is that all of us for years have been defending the presidential prerogative and regarding the Congress as a drag on policy. It is evident now that this delight in a strong presidency was based on the fact that, up to now, all strong Presidents in American history have pursued policies of which one has approved. We are now confronted by the anomaly of a strong President using these arguments to pursue a course which, so far as I can see, can lead only to disaster. It is not hard to assert a congressional role; but, given the structure of the American system, it is very hard to see how the Congress can restrain the presidential drive toward enlargement of the war. Voting against military appropriations is both humanly and politically self-defeating. The only hope is to organize a broad political movement; and even this cannot take effect until, at the very earliest, the 1968 primaries, which may be too late." Id. at 269. My favorite--because I know its truth--entry is from April 4, 1981. "The historians with whom I feel instant sympathy are those like George Bancroft and Henry Adams who abandoned academic life for the world of affairs. I tried during the discussion at the Library [of Congress Council of Scholars in Washington] to define my feelings about pure academic--what is it?--the sense they give of collective unreality? collective complacency? collective pomposity? collective futility? and their jokes are so bad!.... Why does the academic environment, as distinct from the academic discipline, seem t bring out the worst in otherwise decent individuals." Id. at 516.).

Weiner, Tim, Legacy of Ashes: The History of the CIA (New York: Doubleday, 2007) (This is a very interesting, and worthwhile, read. Two passages provide a sense of the core challenges facing American intelligence gathering going forward: “Over the years, the CIA had become less and less willing to hire ‘people that are a little different, people who are eccentric, people who don’t look good in a suit and tie, people who don’t play well in the sandbox with others,’ Bob Gates said. ‘The kinds of tests that we make people pass, psychological, and everything else, make it very hard for somebody who may be brilliant or have extraordinary talents and unique capabilities to get into the agency.’ As a consequence of its cultural myopia, the CIA misread the world. Very few of its officers could read or speak Chinese, Korean, Arabic, Hindi, Urdu, or Farsi—the languages of three billion people, half the planet’s population. Far too few had ever haggled in an Arab bazaar or walked through an African village. The agency was unable to dispatch ‘an Asian-American into North Korea without him being identified as some kid who just walked out of Kansas, or African-Americans to work around the world, or Arab-Americans,’ Gates said.” “In 1982, when Gates was director of central intelligence, he wanted to hire an American citizen raised in Azerbaijan. ‘He spoke Azeri fluently, but he didn’t write English very well,’ he recalled. ‘And so he was rejected because he didn’t pass our English test. And when I was told this, I just went crazy. I said: ‘I’ve got thousands of people here who can write English, but I don’t have anybody here who can speak Azeri. What have you done?’’” Id. at 471-472. “For sixty years tens of thousands of clandestine service officers have gathered only the barest threads of truly important intelligence—and that is the CIA’s deepest secret. Their mission is extraordinarily hard. But we Americans still do not understand the people and the political forces we seek to contain and control. The CIA has yet to become what its creators hoped it would be.” “… Perhaps a decade from now the agency will rise from the ashes, infused with many billions of dollars, inspired by new leadership, invigorated by a new generation. Analysts may see the world clearly. American spies may become capable of espionage against America’s enemies. The CIA someday may serve as its founders intended. We must depend on it. For the war in which we are now engaged may last as long as the cold war, and we will win or lose by virtue of our intelligence.” Id. at 514. Again, an important read which, unfortunately, few American will read.).