February 14, 2008


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.).