April 4, 2008


Ariely, Dan, Predictably Irrational: The Hidden Forces That Shape Our Decisions (New York: Harper, 2008) (This is a very nice, little read, offering numerous insights on everyday life--and on public policy--from behavioral economics in nontechnical jargon. When I teach Law and Economics next academic year, this book will be on the 'recommended readings' list and will be incorporated into the class presentations.).

Baker, Nicholson, Human Smoke: The Beginnings of World War II, the End of Civilization (New York: Simon & Schuster, 2008) (From the jacket cover: Human Smoke delivers a closely textured, deeply moving indictment of the treasured myths that have romanticized much of the 1930s and ’40s. Incorporating meticulous research and well-documented sources—including newspaper and magazine articles, radio speeches, memoirs, and diaries—the book juxtaposes hundreds of interrelated moments of decision, brutality, suffering, and mercy. Vivid glimpses of political leaders and their dissenters illuminate and examine the gradual, horrifying advance toward overt global war and Holocaust.” From the ‘Afterword’: “I dedicate this book to the memory of Clarence Pickett and other American and British pacifists. They’ve never really gotten their due. They tried to save Jewish refugees, feed Europe, reconcile the United States and Japan, and stop the war from happening. They failed, but they were right.” Id. at 474.).

Bernstein, Peter L,. Capital Ideas Evolving (New York: John Wiley & Sons, 2007) (The only thing I will say is this: this informative book on innovation in theory and application in capital markets may require an ‘Afterwards’ to account for the subprime debacle.).

Bookstaber, Richard, A Demon of Our Own Design: Markets, Hedge Funds, and the Perils of Financial Innovation (New York: John Wiley & Sons, 2007) (“The question posed by this book, simply put, is: Why can’t financial markets seem to get their act together? Why, is spite of reduced risk in the underlying economy, in spite of the march of innovation and the contributions of financial engineering, do we not enjoy reductions in financial risk that we find in other areas of our lives? Why are markets actually becoming more crisis-prone?” Id. at 155.).

Buckley, William F., Jr., Cancel Your Own Goddam Subscription: Notes & Asides from National Review (New York: Basic Books, 2007).

Epstein, Richard A., Supreme Neglect: How to revive Constitutional Protection for Private Property (Oxford & New York: Oxford U. Press, 2008) (A nice, very thoughtful, and provocative read. “The most evident feature of the modern period is the sharp divergence between the private law of private property, which has developed with marvelous sophistication, and the crude and dismissive treatment private property receives in modern American constitutional law. It is as though there were two sets of books, with little in common between them. The private law of private property seeks to wring as much benefit out of all resources as is humanly possible. It leaves nothing to waste when it protects all sticks in the common-law bundle of rights, which includes exclusive rights of possession, use, and disposition. The private law is sensitive to the exploitation of property by furnishing its owners with effective systems of recordation and transfer. And it builds in key limitations on the rights of one property owner to protect the like interests of his neighbor. The modern constitutional law does not seek to protect the full panoply of private rights, but tends, mistakenly, to extend a high level of protection solely to the right to exclude. It is as though the holder of an orange is entitle to exclusive possession of the rind, but needs government permission to use or dispose of the fruit that lies within.” “This truncation of property rights is of no little consequence. If the private law governing private property is correct, then the public law, as developed in the Supreme Court’s jurisprudence on the subject, is not. If, moreover, the private law works to maximize overall social welfare, then the current constitutional doctrines, by yielding too much power to state regulation, will decrease social wealth and social welfare by increasing the scope for factional politics that produce short-term advantages for some at the cost of long-term dislocation for society as a whole.” “My purpose in writing this book is to show why, above all, private property is a sound social institution, and not just an excuse for private selfishness and greed.” Id. at xvi-xvii.).

Greenspan, Alan, The Age of Turbulence: Adventures in a New World (New York: The Penguin Press, 2007) (In a chapter titled, ‘The Making of an Economist,” Greenspan describes his relationship with Ayn Rand. “It did not go without notice that Ayn Rand stood beside me as I took the oath of office in the presence of President Ford in the Oval Office. Ayn Rand and I remained close until she died in 1982, and I’m grateful for the influence she had on my life. I was intellectually limited until I met her. All of my work had been empirical and numbers-based, never values-oriented. I was a talented technician, but that was all. My logical positivism had discounted history and literature—if you’d asked me whether Chaucer was worth reading, I’d have said, ‘Don’t bother.’ Rand persuaded me to look at human beings, their values, how they work, what they do and why they do it, and how they think and why they think. This broadened by horizons far beyond the models of economics I’d learned. I began to study how societies form and how cultures behave, and to realize that economics and forecasting depends on such knowledge—different cultures grow and create material wealth in profoundly different ways. All of this started for me with Ayn Rand. She introduced me to a vast realm from which I’d shut myself off.” Id. at 52-53. I provide this quote because the typical law student is in his or her early twenties, and Greenspan was roughly 26 or 27 when he met Ayn Rand. So, his intellectual life began to change and expand at his mid-twenties. The point: It is not too late for a law student to get beyond the technical aspects of law and explore the humanities: literature, philosophy, history, art, etc. Don’t be just a lawyer. How will the chapter of your life, titled ‘The Making of a Lawyer,’ read? On a completely different point, perhaps the following provides insights as to why the United States is slipping into a second-rate economy: the lack of trust we have in others, and the lack of trust we have in the quality of the goods and services we purchase from each other. “Another important requirement for the proper functioning of market capitalism is also not often, if ever, covered in lists of factors contributing to economic growth and standards of living: trust in the word of others. Where the rule of law prevails, despite everyone’s right to legal redress of a perceived grievance, if there is more than a small fraction of outstanding contracts that require adjudication, court systems would be overwhelmed, as would society’s ability to be governed by the rule of law.” “This implies that in a free society governed by the rights and responsibilities of its citizens, the vast majority of transactions must be voluntary, which, of necessity, presupposes trust in the word of those with whom we do business—in almost all cases, strangers. It is remarkable that … larger numbers of contracts, especially in financial markets, are initially oral, confirmed by a written document only at a later time, even after much price movement. It is remarkable how much trust we have in the pharmacist who fills the prescription ordered by our physician. Or the trust we grant to automakers that their motor vehicles will run as certified. We are not fools. We bank on the self-interest of our counterparties in trade. Just contemplate how little business would get done if that were not the prevailing culture in which we lived. The division of labor so essential to our standard of living would not exist.” Id. at 255-256. Thus, perhaps, the explanation of the subprime meltdown.).

Hachigian, Nina and Mona Sutphen, The Next American Century: How the U.S. Can Thrive as Other Powers Rise (New York: Simon & Schuster, 2008) (This is a worthwhile, nontechnical read. "For now, it is China, Europe, India, Japan, and Russia [Note: the authors refer to these as the 'pivotal powers'], though all very different from each other, whether democratic or authoritarian, developed or developing, allies, or rivals (or both), which have the most pivotal role to play in making the world a better place or not, supporting the United States or frustrating its plans." Id. at 11. "America needs to move away from its current amalgam of ad hoc reactive, and inconsistent policies, and toward pragmatic cooperation with the pivotal powers, working with them and not against them. If we don't, we could awaken from our Iraq nightmare to a world not organized in our best interests.... [T]his shift will not be easy because America's political culture encourages our politicians to find foreign scapegoats for our problems. It can promote rejection of international cooperation, even though decade after decade, polling reveals that Americans are inclined to multilateralism, Much of the media, loving a fight because their viewers and readers do, does not tend to contribute to a reasoned discourse about the rise of nations. If we are not careful, these factors, especially combined with a recession, could easily push Americans into unwarranted, extreme hostility directed at China or the next power du jour. Some Americans are already there." Id. at 21.).

Horne, Alistair, A Savage War of Peace: Algeria, 1954-1962 (New York: New York Review of Books, 1977, 2006) (Here is Thomas E. Ricks’s blurb on the back cover which prompted me to read this book: “Alistair Horne’s A Savage War of Peace, had been an underground bestseller among U.S. military officers over the last three years.... Indeed, ‘Algeria’ has become almost a codeword among U.S. counterinsurgency specialists–a shorthand for the depth and complexity of the mess we face in Iraq... Anyone interested in Iraq should read this book immediately.”).

Jacoby, Susan, The Age of American Unreason (New York: Pantheon, 2008) (This book is well worth reading! “[I]t is difficult to suppress the fear that the scales of American history have shifted heavily against the vibrant and varied intellectual life so essential to functional democracy. During the past four decades, America’s endemic anti-intellectual tendencies have been grievously exacerbated by a new species of semiconscious anti-rationalism, feeding on and fed by an ignorant popular culture of video images and unremitting noise that leave no room for contemplation or logic.” Id. at xi-xii. “It remains to be seen, as the current presidential campaign unfolds, whether Americans are willing to consider what the flight from reason has cost us as a people and whether any candidate has the will or the courage to talk about ignorance as a political issue affecting everything from scientific research to decisions about war and peace.” Id. at xvii. “Regardless of political reversals of position, two critical ingredients of American anti-intellectualism and anti-rationalism have remained largely unchanged since the 1890s. The first is the belief of a significant minority of Americans that intellectualism and secular higher learning are implacable enemies of their faith. The second is the toxin of pseudoscience, which Americans on both the left and the right continue to imbibe as a means of rendering their social theories impervious to evidence-based challenges.” Id. at 81. “There is a school of thought that applauds the Internet as the Messiah come to save print culture, but this hope of salvation rests on a fundamental confusion between the availability of texts and real reading and writing. The Internet surely does offer a text as well as video highway, open to anyone who can use Google, but text and intellectually substantive reading matter are hardly identical.” Id. at 262. Query: Law review articles and court cases are readily available on the Internet, but how often do those who access these online engage in ‘intellectually substantive reading’?).

Levine, Susan, School Lunch Politics: The Surprising History of America’s Favorite Welfare Program (Princeton & Oxford: Princeton U. Press, 2008) (“While policy makers and legislators alike boasted that the National School Lunch Program was intended to protect the nutritional health of all children, no one was willing to appropriate the funds it would take to actually carry out that goal. The competing agendas that have shaped school lunchrooms over the past half-century reflect larger fissures and tensions within American public policy. Like American welfare programs more generally, school lunchrooms have suffered from conservative distrust of federal programs and reluctance to ask taxpayers to pay for public services and from a liberal reluctance to confront the structural causes of economics and racial inequalities.” Id. at 191. This is a worthwhile read. For those so inclined to think about the various so-called “universal healthcare” proposals currently being suggested, this book may provide several important insights as to the political challenges and realities for enacting, implementing, and managing such programs.).

Plumb, J. H., The Death of the Past (Boston: Houghton Mifflin, 1970) (“Education at long last is becoming squarely based on the needs and practices of the modern scientific world in which the West now has to dwell. But it is a movement from education for society, for government, for authority, to education in techniques. This is not all gain, for these has been a loss of a unifying ideology of social attitude which was implicit in an educational world dominated by the past. There is an immense difference between a discussion of Old Cato as the embodiment of civic virtue and one on the sociology of consent. One haunts the imagination, the other quickly fades. And in this period of vast and rapid transition there is great danger of a failure to secure an ideology of social attitude that can be taught and acceptably transmitted from generation to generation.” Id. at 57. “The skills by which men and women earn their bread can no longer be learned at home. They cannot be handed down from generation to generation. Nowadays they are taught that they may, throughout their lives, have to discard much of their learning and re-learn their craft time and time again. Think but of radio sets or of motor-cars [No, think of computers, telephones, MP3 players] and how they have changed in less than a generation. So men and women today are not conditioned in their daily lives to a world that is tied to an impartibly changing past, in which the patterns of work, the relationship between fathers and children, or even between the social classes, possess the sanctity of tradition. Life is change, uncertainty, and only the present can have validity and that, maybe, not for long. The consequence, of course, is to accept a similar attitude in ideas of conduct, in the concepts of social structure or family life, They can be judged by what they do, but lack validity because they have been. So we are witnessing the dissolution of the conditions which tied man to his past and gave him his Janus face.” Id. at 58-59. “And here lies the greatest contribution that the historian can make. History can teach all who are literate about the nature of social change; even to tell the mere story of social change would be a valuable educational process in itself and help fulfil a need in present society of which we are all aware…. We need to teach people to think historically about social change, to make them alert to the cunning of history which…always contains a quality of surprise. We must add the depth of time to studies which so singularly lack it.” Id. at 143-144.).

Power, Samantha, Chasing the Flame: Sergio Vieira De Mello and the Fight to Save the World (New York: The Penguin Press, 2008) ("The biography of Sergio Vieira de Mello is also the biography of a dangerous world whose ills are too big to ignore but too complex to manage quickly or cheaply. Although the types of conflict--and the loci of Western attention--have shifted over the last four decades, every generation has had to deal with broken lives and broken societies. Because of the terrible costs of the U.S.-led war in Iraq, Americans today seem torn between two impulses. The first is to retreat from global engagement altogether. We do not feel sure that our government or we ourselves know what we a doing. The second is to go abroad to stamp out threats in the hopes of achieving full security. Vieira de Mello's life reminds us of the impossibility of either course. The United States can no more pack up and turn away from today's global threats than it can remake the world to its own liking. Vieira de Mello understood that just because he couldn't cure all ills didn't mean he should not do what he could to ameliorate some." Id. at 11.).

Power, Samantha, “A Problem From Hell”: America and the Age of Genocide (New York: Basic Books, 2002).

Rejali, Darius, Torture and Democracy (Princeton & Oxford: Princeton U. Press, 2007) (“I hope I have written a story that makes us take a second look at ourselves as we enter a new century primed to treat our enemies inhumanely. This book has five aims: (1) to offer a history of the technology of torture around the globe over the past century and use it to engage historical, philosophical, and anthropological claims about modern torture, (2) to raise provocative questions and hypotheses about the historical pattern of torture technology and the factors that shape it, relating the development of this technology to elements not normally considered connected to it, namely, democracy and international monitoring, (3) to change public debate, (4) to offer a riposte to those who defend the use of torture, and (5) to provide a reliable sourcebook for human rights organizations, policymakers, and politicians, drawing extensively on sources hitherto unavailable in English or so scattered and obscure as to be almost inaccessible.” Id. at xvii.).

Scully, Matthew, Dominion: The Power of Man, the Suffering of Animals, and the Call to Mercy (New York: St. Martin’s Press, 2002).

Stiglitz, Joseph E. & Linda J. Bilmes, The Three Trillion Dollar War: The True Cost of the Iraq Conflict (New York: Norton, 2008) (“Going to war is not to be undertaken lightly. It is an act that should be undertaken with greater sobriety, greater solemnity, greater care, and greater reserve than any other. Stripped of the relentless media and government fanfare, the nationalist flagwaving, the reckless bravado, war is about men and women brutally killing and maiming other men and women. The costs live on long after the last shot has been fired.” Id. at 206).

Wood, Gordon S., The Purpose of the Past: Reflections on The Uses of History (New York: The Penguin Press, 2008) (“We have heard a lot over the past several decades about the cultural construction of reality: the so-called postmodern sense that the world is made by us. Historians have little quarrel with this notion of the cultural construction of reality—as long as this is understood as the historical construction of reality. Too often postmodernists think that by demonstrating the cultural construction of reality, they have made it easier for men and women to change that reality at will. If culture and society are made by us, they can be remade to suit our present needs, or so it seems. But anyone with a historical sense knows differently, knows that things are more complicated than that. History, experience, custom—developments through time—give whatever strength and solidity the conventions and values by which we live our lives have. These conventions and values, however humanly created, are not easily manipulated or transformed. They, of course, have changed and will continue to change, but not necessarily in ways that we intend or want.” “Take, for example, our debates over the meaning of the Constitution…. Historians know that the meaning of the Constitution has changed and will continue to change through time. But they also know that no one is free today to give whatever meaning he or she wants to give to it. In our choice of interpretations we are limited by history: by the conventions, values, and meanings we have inherited from the past. Those who fear that abandoning a timeless absolute standard for interpreting the Constitution will lead to moral and intellectual chaos are wrong. History, experience, and custom are powerful restraints on what we can think and do. We are not as free from the past as we think we are. Knowing this is to have a historical sense.” Id. at 12-13.).


Baxter, Charles, The Soul Thief (New York: Pantheon, 2008).

Bock, Charles, Beautiful Children: A Novel (New York: Random House, 2008) (flawed, but well worth a careful read).

Caputo, Philip, Acts of Faith: A Novel (New York: Knopf, 2005).

Hamilton, Patrick, Twenty Thousand Street Under the Sky: A London Trilogy (New York: New York Review Books, 1987, 2007).

Jin, Ha, A Free Life: A Novel (New York: Pantheon, 2007).

Megged, Aharon, Foiglman translated from the Hebrew by Marganit Weinberger-Rotman (New Milford, Ct.: The Toby Press, 1987, 2003).