Cosmopolitan Lawyer: August 2008

Barnett, William P., The Red Queen Among Organizations: How Competitiveness Evolves (Princeton & Oxford: Princeton U. Press, 2008) (From the jacket cover: “There’s a scene in Lewis Carroll’s Through the Looking Glass in which the Red Queen, having just led a chase with Alice in which neither seems to have moved from the spot where they began, explains to the perplexed girl: ‘It takes all the running you can do, to keep in the same place.’ Evolutionary biologists have used this scene to illustrate the evolutionary arms race among competing species. William Barnett argues that a similar dynamic is at work when organizations compete, shaping how firms and industries evolve over time.” Barnett examines the effects—and unforeseen perils—of competing and winning….and derives some startling conclusions. Organizations that survive competition become stronger—but only in the market contexts in which they succeed. Barnett shows how managers may think their experience will help them thrive in new markets and conditions, when in fact the opposite is likely to be the case. He finds that an organization’s competitiveness at any given moment hinges on the organization’s historical experience. Through Red Queen competition, weaker competitors fails, or they learn and adapt. This in turn heightens the intensity of competition and further strengthen survivors in an ever-evolving dynamic.”).

Berman, Paul, Terror and Liberalism (New York & London: Norton, 2003) (“I draw the phrase ‘new radicalism’ from Arthur M. Schlesinger, Jr.’s The Vital Center: The Politics of Freedom (Boston: Houghton Mifflin, 1949). The boldness in that phrase appeals to me. But the phrase comes freighted also with a cautionary history, and this should be borne in mind. Christopher Lasch wrote a book called The New Radicalism in America 1889-1963: The Intellectual as a Social Type (New York: Alfred A. Knopf, 1965), in which he glanced at Schlesinger’s Vital Center and at the Cold War liberals and the anti-Communist left of the mid-twentieth century. And Lasch worried. The rhetoric of ‘freedom’ and ‘totalitarianism’ and such terms struck him as extreme and rigid. Nor was this foolish on his part. The black-and-white attitudes of the year around 1950, the quaking fear of Soviet communism, the new radicalism of that era—these things did lead to problems later on. Soviet communism lost its sting, after a while. But some of the liberals and radicals, in the fervor of their anti-totalitarianism, failed to notice the change in circumstances, and they ended up cheering on the plunge into Indochina. In proposing to resurrect the term ‘new radicalism’ and the spirit of the anti-Communist left, I do not wish to forget that particular lesson—the memory of how some of the liberals and radicals of half a century ago, in their fierceness, lost the ability in later years to make sound and nuanced judgments. If Lasch’s book casts a small shadow over the term ‘new radicalism,’ warning against any new such error, I figure that the shadow improves the term. ‘Be radical, be radical, be not too damned radical,’ Whitman said.” “Today the totalitarian danger has not yet lost its sting, and there is no wisdom in claiming otherwise. The literature and language of the mid-twentieth century speak to us about danger of that sort. That is the thesis of my book.” Id. at 213-214.).

Bobbitt, Philip, Terror and Consent: The War for the Twenty-First (New York: Knopf, 2008) (This is, I think, a very important book to read, which is not to say that specific arguments, conclusions, etc., are correct. The basic argument is that the reality paradigm has shifted, and we need to shift our thinking and action to reflect that new reality paradigm. “Now we desperately need a body of theory to understand the Wars on Terror, It is shocking that, years after 9/11, the U.S. government has generated no consensus on the general nature of the struggle we face. The core of the struggle has to do with the threats to the legitimacy of the market state of consent, brought about by the destruction of civil life on a mass scale, and the effort by our adversaries to place blame for this destruction of the states of consent.” Id. at 44. “Indeed, good intelligence organizations try to encourage dissent as a way of sharpening their estimates and preventing the mindless consensus that seizes so many institutions (including the press or, for that matter, the academy).” Id. at 337.).

Bonastia, Christopher, Knocking On the Door: The Federal Government’s Attempt to Desegregate the Suburbs (Princeton & Oxford: Princeton U. Press, 2008) (“This book chronicles federal governmental involvement in residential segregation, placing particular focus on the years of the Nixon Administration, when HUD attempted to reverse this legacy of enforced residential segregation. In the end the agency was unable to foster meaningful changes in segregation patterns. Scholars of social policy study success disproportionately because it is easier to study, and successful policies are more prominent than failed ones. To comprehend fully how a law may fulfill its stated objectives, however, we need to understand the many reasons why this often does not occur.” Id. at 2-3. I think the best way to read this book is an synthesis of ‘administrative agency failure.’ In that light the book is a worthwhile read for anyone interested in administrative law and regulation, as well as the politics surround such.).

Chafee, Zechariah Jr., Free Speech in the United States (Cambridge: Harvard U. Press, 1941, 1967) ("A saw is a very good thing, but not to shave with, and a judge and jury are an excellent instrument to pass on overt acts. They are also well fitted to decide the effect of words upon the reputation of an individual, when the harmfulness of the language can be easily tested by common-sense standards, and its counterbalancing benefit to the public, if any, is indicated by well-established principles as to privilege and fair comment. But they are not trained and they are not able to apply such vague and misleading tests of criminality of utterances as bad tendency and presumptive intent." Id. at 62-63. The very final sentence of Free Speech in the United States expresses the admonishment we, being caught up in the so-called war on terror, so much need reminding. "Let us not in our anxiety to protect ourselves from foreign tyrants imitate some of their worst acts, and sacrifice in the process of national defense the very liberties which we are defending." Id. at 566.).

Choi, Susan, A Person of Interest: A Novel (New York: Viking, 2008).

Clarke, Thurston, The Last Campaign: Robert F. Kennedy and the 82 Days That Inspired America (New York: Henry Holt, 2008) ("'I am on the side of those who are not afraid to recognize past error, who refuse to blindly pursue bankrupt policies which will rend us from our friends and drain us of our treasure, the fruitless pursuit of illusions long since shattered.'" Id. at 53).

Coll, Steve, The Bin Ladens: An Arabian Family in the American Century (New York: The Penguin Press, 2008).

Collins, Randall, Violence: A Micro-sociological Theory (Princeton & Oxford: Princeton U. Press, 2008) (“This gives us a clue to the rather disjointed relationship between anger and violence. Competent use of weapons is for the most part not angry. Anger is effective only in situations where sheer muscular force is at issue, and then more in the effort to exert compliance than to cause actual harm to an opponent. Anger comes out where there is little or no confrontational fear: in controlled situations where the opponent is already subdued, or in completely symbolic confrontations where there is no fighting but opinions are expressed or vented. Ironically, there is probably more anger in civilian life than in actual combat.” “To ask whether the basic human propensity to fear, or pleasure in killing, or something else, is the wrong way to go about producing an explanation. Better to proceed on the assumption that all humans are basically alike, and that situational dynamics over very specific periods of time determine where individual fighters will be on the continuum. The very same soldiers who minutes earlier were in a frenzy of killing a helpless enemy, or exulting over victory, can be sharing rations with surrendered prisoners...; and hour before that, they could be in a phrase of high tension, non-firing, and half-paralysis. Not violent individuals, but violent situations; and also , not fearful individuals, but fearful positions in situation. And thus across the board.” Id. at 70 (citations omitted). “The inner culture of the police comes from the centrality of confrontations in their work. Police (at least in the big-city police forces heavily studied by sociologists) do not like to associate with outsiders in their leisure time, and are suspicious of them as well as of their own departmental superiors.... We can interpret this to mean that officers are used to dominating everyone they encounter, and hence they avoid off-duty situations where this is not possible. This ongoing self-segregation of the police from those whom they patrol keeps up a degree of polarization and cultural isolation” Id. at 377 (citations omitted). I would strongly recommend book to all law students. If nothing else reading this book should get one away from thinking there are the ‘good guys’ and the ‘bad guys’, or that there are the ‘nonviolent us’ and the ‘violent them.’ For the most part, it is not the individual or kinds of individuals. Rather, borrowing and modifying a turn of phrase from the 1992 presidential election, it is the situation, stupid.).

Cosby, William, H., and Alvin F. Poussaint, Come On People: On the Path from Victims to Victors (Nashville: Thomas Nelson, 2007).

Dranove, David, Code Red: An Economist Explains How to Revive the Healthcare System Without Destroying It (Princeton & Oxford: Princeton U. Press, 2008) (I was anticipating something a bit more intellectually rigorous, and was greatly disappointed. Still, it provides a nice overview of a failed system. One should step back and think first about what one thinks is the proper function of government. There is sense in which the healthcare system in the United States is a failure only if one generally believes in big government. Or, to put it another way, the healthcare system is a failure only if one believes that there is a right to have wealth redistributed so that others may receive increased healthcare. Thus, the book that needs to be written might be titled ‘Code What: A Political Philosopher Explains Why the Government Has (or Does Not Have) a Duty to Provide Healthcare’. We may all agree that mom’s apple pie is something we all want, but what we don’t seem to agree upon is whether the government (or we the people) have an obligation to provide everyone with mom’s apple pie. Until there is a true consensus that such an obligation exist, any effort to revive the healthcare system is pretty much doomed to failure.)

Dudziak, Mary L., Exporting American Dreams: Thurgood Marshall’s African Journey (Oxford & New York: Oxford U. Press, 2008).

Dyson, Michael Eric, April 4, 1968: Martin Luther King, Jr.’s Death and How It Changed America (New York: Basic Civitas Books, 2008).

Eppridge, Bill, A Time It Was: Bobby Kennedy in the Sixties with an essay by Pete Hamil (New York: Harry n. Abrams (2008) (photographs).

Erikson, Erik H., Childhood and Society, Second Edition, Revised and Enlarged (New York: Norton, 1963) ("If we take intellectual functioning as an example of a part function, we find that it is either integrated with or will be distorted by organ modes. We perceive an item of information; as we incorporate it, we apprehend that part of it which seems worth appropriating; by digesting it we try to comprehend it in our own way, assimilating it to other items of information; we retain parts of it and eliminate others; and we transmit it to another person in whom the appropriate digestion or insemination repeats itself. And just as the modes of adult genitality may bear the more or less distorting imprint of early organ-mode experiences, so a man's intellectuality may be--for better or worse--characterized by the under- or overdevelopment of one or the other of the basic modes. Some grasp at knowledge as avidly as the cartoonist's goat who was asked by another whether she had eaten a good book lately; others take their knowledge into a corner and chew on it as on a bone; again, others transform themselves into storehouses of information with no hope of ever digesting it all; some prefer to exude and spread information which is neither digested nor digestible; and intellectual rapist insist on making their points by piercing the defenses of unreceptive listeners." Id. at 96-97.).

Eskridge, William N., Jr., Dishonorable Passions: Sodomy Laws in America 1861-2003 (New York: Viking, 2008) (“This book traces the rise, evolution, decline, and fall of the crime against nature, from a capital offense with great symbolic importance to an object of judicial nullification. A history of the crime against nature is, in some ways, a history of American sexuality and its social and legal regulation. That is, sodomy’s tale reflects the evolution of a culture that has remained ambivalent about the morality of pleasure. This book also, perhaps surprisingly, touches on our rich history of identity-based social movements—not just the gay and lesbian rights movement, but also the civil rights and women’s movements and the traditional family values (TFV) countermovement. Finally, the history of sodomy illuminates some central themes of American politics, including the role of constitutional law in the continual reshaping of American law.” Id. at 2. This is an interesting and worthwhile read. However, Professor Eskridge has a particular political perspective and a particular political agenda. It is usually problematic and difficult, though not impossible, to write a balanced history when one’s political perspective and political agenda are central to the narrative. Professor Eskridge has been as balanced as anyone can be given that the regulation of sodomy (defined in its narrower definition) is still very much a culturally contested one. Decriminalization does not mean social acceptance.).

Freeberg, Ernst, Democracy’s Prisoner: Eugene V. Debs, The Great War, and The Right to Dissent (Cambridge, Ma. & London: Harvard U. Press, 2008).

Fromm, Erich, The Anatomy of Human Destructiveness (New York: Holt, Rinehart, & Winston, 1973) ("The truth is that all human passions, both the 'good' and the 'evil,' can be understood as a person's attempt to make sense of his life. Change is possible only if he is able to 'convert himself' to a new way of making sense of life by mobilizing his life-furthering passions and thus experiencing a superior sense of vitality and integration to the one he had before. Unless this happens he can be domesticated, but he cannot be cured. But even though the life-furthering passions are conducive to a greater sense of strength, joy, integration, and vitality than destructiveness and cruelty, the latter are as much an answer to the problem of human existence as the former. Even the most sadistic and destructive man is human, as human as the saint. He can be called a warped and sick man who has filed to achieve a better answer to the challenge of having been born human, and this is true; the cam also be called a man who took the wrong way in search of his salvation." These considerations by no means imply, however, that destructiveness and cruelty are not vicious; they only imply that vice is human. The are indeed destructive of life, of body and spirit, destructive not only of the victim but of the destroyer himself. They constitute a paradox: they express life turning against itself in the striving to make sense of it. They are the only true perversion. Understanding them does not mean condoning them. But unless we understand them, we have no way to recognize how they may be reduced, and what factors tend to increase them." "Such understanding is of particular importance today, when sensitivity toward destructiveness-cruelty is rapidly diminishing, and necrophilia, the attraction to what is dead, decaying, lifeless, and purely mechanical, is increasing throughout our cybernetic industrial society. The spirit of necrophilia was first in literary form by F. T. Marinetti in his Futurist Manifesto in 1909. The same tendency can be seen in much of the art and literature of the last decades that exhibits a particular fascination with all that is decayed, unalive, destructive, and mechanical. The Falangist motto, 'Long live death,' threatens to become the secret principle of a society in which the conquest of nature by the machine constitutes the very meaning to progress, and where the living person becomes an appendix to the machine." Id. at 9-10. This was written more than thirty-five years ago, before personal computers, laptops, the cellphones, the Ipods, MP3 players, the internet, videogames, the 24-hour news cycles, ultimate sports, (un)reality television, etc., etc., etc. When have moved from a society where there would have been general agreement that the use of torture, pre-emptive war, etc., were against American values, but now those who question the legitimacy and morality of these are viewed as unpatriotic. Where society was once severely neurotic, society is now totally psychotic and, most definitely, is showing signs of diminishing sensitivity toward destructive-cruelty and an increasing attraction to the mechanical and necrophia. I wonder whether there is a sense in which we are actually attracted to the idea and possibility of terror.).

Fromm, Erich, The Dogma of Christ and Other Essays on Religion, Psychology and Culture (New York: Holt, Rinehart, & Winston, 1963) (In the essay 'The Present Human Condition,' Fromm makes this observation: "Man's character has been molded by the demands of the world he has built with his own hands. In the eighteenth and nineteenth centuries, the social character of the middle class showed strong exploitative and hoarding traits. His character was determined by the desire to exploit others and to save one's own earnings to make further profit from them. In the twentieth century, man's character orientation shows considerable passivity and an identification with the values of the market. Contemporary man is certainly passive in most of his leisure time. He is the eternal consumer; he 'takes in' drink, food, cigarettes, lectures, sights, books, movies; all are consumed, swallowed. The world is one great object for his appetite: a big bottle, a big apple, a big breast. Man has become the suckler, the eternally expectant--and the eternally disappointed." Id. at 93, 96. In another essay, 'The Ethical Problem of Modern Man,' Fromm comments on equality as having been reduced to sameness: "Inequality is the third vice which we seem to think we have overcome. Indeed the inequality which existed and was permitted in the nineteenth century is vanishing, Despite the vast amount that remains to be done, an objective observer will be impressed by the progress made toward the equality of races in America, especially in the years since World War II. Progress toward economic equality in the United States has also been considerable. But where has this led us? We have distorted the notion of equality into the notion of sameness. What did the concept of 'equality' mean in the great humanistic tradition? It meant that we were equal in one sense: that every man is an end in himself and must not be a means for the end of anyone else. Equality is the condition in which no man must be a means, but every man is an end in himself, regardless of age, color, sex. This was the humanistic definition of equality which was the basis, indeed, for the development of differences. Only if we are permitted to be different without being threatened with being treated as unequal, only then are we equal." "But what have we done? We have transformed the concept of equality into that of sameness. Actually, we are afraid to be different because we are afraid that if we are different, we have no right to be here...." "Now this concept of equality, which has all the prestige, all the dignity, of a great philosophical and humanistic concept, is misused for one of the most degrading, inhuman, and dangerous aspects of our culture, namely, sameness, which means loss of individuality." Id. at 178-180.).

Fromm, Erich, Escape from Freedom (New York: Farrar & Reinhart, 1941) (“Our aim will be to show that the structure of modern society affects man in two ways simultaneously: he becomes more independent, self-reliant, and critical, and he becomes more isolated, alone, and afraid. The understanding of the whole problem of freedom depends on the very ability to see both sides of the process and not to lose track of one side while following the other.” “This is difficult because conventionally we think in nondialectical terms and are prone to doubt whether two contradictory trends can result simultaneously from one cause. Furthermore, the negative side of freedom, the burden which it puts upon man, is difficult to realize, especially for those whose heart is with the cause of freedom. Because in the fight for freedom in modern history the attention was focused upon combating old forms of authority and restraint, it was natural that one should feel that the more these traditional restraints were eliminated, the more freedom one had gained. We fail sufficiently to recognize, however, that although man has rid himself from old enemies of freedom, new enemies of a different nature have arisen; enemies which are not essentially external restrains, but internal factors blocking the full realization of the freedom of personality. We believe, for instance, that freedom of worship constitutes one of the final victories for freedom. We do not sufficiently recognize that while it is a victory against those powers of Church and State which did not allow man to worship according to his own conscience, the modern individual has lost to a great extent the inner capacity to have faith in anything which is not provable by the methods of the natural sciences. Or, to choose another example we feel that freedom of speech is the last step in the march of victory of freedom. We forget that, although freedom of speech constitutes an important victory in the battle against old restraints, modern man is in a position where much of what ‘he’ thinks and says are the things that everybody else thinks and says; that he has not acquired the ability to think originally, that is, for himself—which alone gives meaning to his claim that nobody can interfere with the expression of his thoughts. Again, we are proud that in his conduct of life man has become free from external authorities, which tell him what to do and what not to do. We neglect the role of the anonymous authorities like public opinion and ‘common sense,’ which are so powerful because of our profound readiness to conform to the expectations everybody has about ourselves and our equally profound fear of being different. In other words, we are fascinated by the growth of freedom from powers outside of ourselves and are blinded to the fact of inner restraints, compulsions, and fears, which tend to undermine the meaning of the victories freedom has won against its traditional enemies. We therefore are prone to think that the problem is exclusively that of gaining still more freedom of the kind we have gained in the course of modern history, and to believe that the defense of freedom against such powers that deny such freedom is all that is necessary. We forget that, although each of the liberties which have been won must be defended with the utmost vigor, the problem of freedom is not only a quantitative one, but a qualitative one; that we not only have to preserve and increase the traditional freedom, but that we have to gain a new kind of freedom, one which enables us to realize our own individual self, to have faith in this self and in life.” Id. at 104-106. “What holds true of thinking and feeling holds also true of willing, Most people are convinced that as long as they are not overtly forced to do something by an outside power, their decisions are theirs , and that if they want something, it is they who want it. But this is one of the great illusions we have about ourselves. A great number of our decisions are not really our own but are suggested to us from the outside; we have succeeded in persuading ourselves that it is we who have made the decision, whereas we have actually conformed with expectations of others, driven by the fear of isolation and by more direct threats to our life, freedom, and comfort.” Id. at 199-200. ‘The same distortion happens to original thinking as happens to feelings and emotions. From the very start of education original thinking is discouraged and ready-made thoughts are put into people’s heads.” Id. at 246-247. “The future of democracy depends on the realization of the individualism that has been the ideological aim of modern thought since the Renaissance. The cultural and political crisis of our day is not due to the fact that there is too much individualism but that what we believe to be individualism has become an empty shell. The victory of freedom is possible only if democracy develops into a society in which the individual, his growth and happiness, is the aim and purpose of culture, in which life does not need any justification in success or anything else, and in which the individual is not subordinated to or manipulated by any power outside of himself, be it the State or the economic machine; finally, a society in which his conscience and ideals are not the internalization of external demands, but are really his and express the aims that result from the peculiarity of his self…. The problem we are confronted with today is that of the organization of social and economic forces, so that man—as a member of organized society—may become the master of these forces and cease to be their slave.” Id. at 270-271.).

Fromm, Erich, Man for Himself: An Inquiry into the Psychology of Ethics (New York: Holt, Rinehart & Winston, 1947) ("[M]odern man feels uneasy and more and more bewildered. He works and strives, but he is dimly aware of a sense of futility with regard to his activities. While his power over matter grows, he feels powerless in his individual life and in society. While creating new and better means for mastering nature, he has become enmeshed in a network of those means and has lost the vision of the end which alone gives them significance--man himself. While becoming the master of nature, he has become the slave of the machine which his own hands built. With all his knowledge about matter, he is ignorant with regard to the most important and fundamental questions of human existence: what man is, how he ought to live, and how the tremendous energies within man can be released and used productively." Id. at 4. "Modern society, in spite of all the emphasis it puts on happiness, individuality, and self-interest, has taught man to feel that not his happiness ... is the aim of life, but the fulfillment of his duty to work, or his success. Money, prestige, and power have become his incentives and ends. He acts under the illusion that his actions benefit his self-interest, though he actually serves everything else but the interests of his real self. Everything is important to him except his life and the art of living. He is for everything except for himself. Id. at 19. "[I]f we ask what the respective weight of skill and personality as a condition for success is, we find that only in exceptional cases is success predominantly the result of skill and of certain human qualities like honesty, decency, and integrity. Although the proportion between skill and human qualities on the one hand, and 'personality on the other hand as prerequisites for success varies, the 'personality factor' always plays a decisive role. Success depends largely on how well a person sells himself on the market, how well he gets his personality across, how nice a 'package' he is; whether he is 'cheerful,' 'sound,' 'aggressive,' reliable,' ambitious'; furthermore what his family background is, what clubs he belongs to, and whether he knows the right people. The type of personality required depends to some degree on the special field in which a person works. A stockbroker, a salesman, a secretary, a railroad executive, a college professor, or a hotel manager must each offer different kinds of personality that, regardless of their differences, must fulfill one condition: to be in demand." Id. at 69-70. "In the last three hundred years the concept of self-interest has increasingly been narrowed until it has assumed almost the opposite meaning which it has in Spinoza's thinking. It has become identical with selfishness, with interest in material gains, power, and success; and instead if its being synonymous with virtue, its conquest has become an ethical commandment." "This deterioration was made possible by the change from the objectivistic into the erroneously subjectivistic approach to self-interest. Self-interest was no longer to be determined by the nature of man and his needs; correspondingly, the notion that one could be mistaken about it was relinquished and replaced by the idea that what a person felt represented the interest of his self was necessarily his true self-interest." Id. at 134.).

Galbraith, John Kenneth, The New Industrial State (The James Madison Library in American Politics) with a new foreword by James K. Galbraith (Princeton & Oxford: Princeton U. Press, 1967, 2007) (Though dated in several aspects (and the 'Foreword' by James Galbraith does place the book in context), this work remains interesting. Were I teaching Corporation law I would assign this as background reading. My favorite quote, as an educator, is from James Galbraith's 'Foreword': "The planning system imparts its peculiar flavor to modern higher education, with the emphasis on generalized business arts, and the devaluation of higher technical skills (science, mathematics, engineering) as well as older talents such as design, music, draftmanship, and the fine arts. These today we import. [John Kenneth] Galbraith explained the phenomenon: the technostructure does not generally need craftsmen. it needs flexible young men and women willing to be molded to the goals and mores of the organization, and to do whatever it may ask. Here the corporation resembles the foreign service, or the army, and not at all the medieval guild. Contrary to a common theme in recent labor economics, education does not impart skills; it imparts acceptability." Id at xv (italics added).).

Gay, Peter, Modernism: The Lure of Heresy From Baudelaire to Beckett and Beyond (New York & London: Norton, 2008) (“For all their palpable differences, modernists of all stripes shared two defining attributes…: first, the lure of heresy that impelled their actions as they confronted conventional sensibilities; and , second, a commitment to a principled self-scrutiny.” Id. at 3-4. I would ask ‘Is modernism dead?’ I would argue that it is. There are no conventional sensibilities to confront since everything goes. And, we (at least Americans) are incapable of self-scrutiny since we leave in a self-congratulatory society.).

Graham, Jorie, Sea Change: Poems (New York: Ecco, 2008) (From the poem Guantanamo,"We long to be forgiven. It doesn't matter for what, there are no facts." Id. at 10, 11).

Hopkins, Charles Howard, The Rise of the Social Gospel in American Protestantism 1865-1915 (Yale Studies in Religious Education, Volume XIV) (New Haven: Yale U. Press, 1940) ("[W]hen the Federal Council met in quadrennial session at Chicago in 1912... Social justice was given a new emphasis and 'other matters than those strictly industrial' were included in the now classic document. Widely--almost universally--adopted by the Protestant denominations of America, the 1912 formulation of the fully-developed program of social Christianity--unmodified until 1932--serves as a fitting close to our analysis of the rise of the social gospel: 'The Churches must stand: 1. For equal rights and complete justice for all men in all stations of life. 2. For the protection of the family, by the single standard of purity, uniform divorce laws, proper regulation of marriage, and proper housing. 3. For the fullest possible development for every child, especially by the provision of proper education and recreation. 4. For the abolition of child labor. 5. For such regulation of the conditions of toil for women as shall safeguard the physical and moral health of the community. 6. For the abatement and prevention of poverty. 7. For the protection of the individual and society from the social, economic, and moral waste of the liquor traffic. 8. For the conservation of health. 9. For the protection of the worker from dangerous machinery, occupational disease, and mortality. 10. For the right of all men to the opportunity for self-maintenance, for safeguarding this right against encroachments of every kind, and for the protection of workers from the hardships of enforced unemployment. 11. For suitable provision for the old age of the workers, and for those incapacitated by injury. 12. For the right of employees and employers alike to organize for adequate means of conciliation and arbitration in industrial disputes. 13. For the gradual and reasonable reduction of the hours of labor to the lowest practicable point, and for that degree of leisure for all which is a condition of the highest human life. 15. For a living wage as a minimum in every industry, and for the highest wage that each industry can afford. 16. For a new emphasis upon the application of Christian principles to the acquisition and use of property, and for the most equitable division of the product of industry that can ultimately be derived.' And in conclusion the report declared: 'The final message is redemption, the redemption of the individual in the world, and through him of the world himself, and there is no redemption of either without the redemption of the other': 'The Gospel is outgrown, the Christian pulpit is superfluous, the Church of the living Christ goes out of existence when the truths of the gospel, the vocabulary of the preacher, and the constitution of the Church no longer contain the words, God, Sin, Judgment, and Redemption, and they are gigantic and capacious word, belong to a vocabulary that can interpret the whole universe of right and wrong, both individual and social. They are applicable to every problem in God's world." Id. at 316, citing Report of the Commission (1912), at 20-21, 26. One may take issue with specific language, question whether this is limited to being a 'Christian' gospel,' etc., but doesn't this get it right? And, more important, does not this admonishment also measure and highlight how far we--contemporary America and Americans-- have strayed from the goal of social justice?).

Judt, Tony, Reappraisals: Reflections on the Forgotten Twentieth Century (New York: The Penguin Press, 2008) (This is a collection of essay written by historian Judt. “Of all the transformations of the past three decades, the disappearance of ‘intellectuals’ is perhaps the most symptomatic. The twentieth century was the century of the intellectual: The very term first came into use (pejoratively) at the turn of the century and from the outset it described men and women in the world of learning, literature, and the arts who applied themselves to debating and influencing public opinion and policy. The intellectual was by definition committed—‘engaged’: usually to an ideal, a dogma, a project….” “So long as public policy debate was framed in such all-embracing generalities, whether ethical or political, intellectual shaped—and in some countries dominated—public discourse, In states where public opposition and criticism was (is) repressed, individual intellectuals assumed de facto the role of spokesmen for the public interest and for the people, against authority and the state. But even in open societies the twentieth0century intellectual acquired a certain public status, benefiting not only from the right of free expression but also from the near-universal literacy of the advanced societies, which assured him or her an audience….” “The intellectual—free thinking or politically committed, detached or engaged—was also a defining glory of the twentieth century…. “If we are to understand the world whence we have just emerged, we need to remind ourselves of the power of ideas…” Id. at 12-15. From the essay, 'Albert Camus: "The best man in France",' a case in point:“In an era of self-promoting media intellectuals, vacantly preening before the admiring mirror of their electronic audience, Camus’s patent honesty, what his former schoolteacher called ‘ta pudeur instinctive,’ has the appeal of the genuine article, a hand-crafted masterwork in a world of plastic reproductions,” Id. at 105 (citations omitted.) “Why have American liberals acquiesced in President Bush’s catastrophic foreign policy? Why have they so little to say about Iraq, about Lebanon, or about recent reports of a planned attack on Iran? Why has the administration’s sustained attack on civil liberties and international law aroused so little opposition or anger from those who used to care most about these things? Why, in short, has the liberal intelligentsia of the United States in recent years kept it head safely below the parapet?” “…Liberalism in the United States today is the politics that dare not speak its name. And those who style themselves ‘liberal intellectuals’ are otherwise engaged. As befits the new Gilded Age, in which the pay ratio of an American CEO to that of a skilled worker is 412:1 and a corrupted Congress is awash in lobbies and favors, the place of the liberal intellectual has been largely subsumed by an admirable cohort of muckraking investigative journalist….” “The collapse of liberal self-confidence in the contemporary USA can be variously explained. In part it is a backwash from the lost illusions of the sixties generation, a retreat from the radical nostrums of youth into the all-consuming business of material accumulation and personal security... The disappearance of the liberal center in American politics is also a direct outcome of the deliquescence of the Democratic party. In domestic politics liberal once believed in the provisions of welfare, good government, and social justice. In foreign affairs they had a long-standing commitment to international law, negotiation, and the importance of moral example. Today a spreading me-first consensus has replace vigorous public debate in both areas. And like their political counterparts, the critical intelligentsia once so prominent in American cultural life has fallen silent,” Id. at 384-385. “In today’s America, neoconservatives generate brutish policies for which liberal provide the ethical fig leaf. There really is no other difference between them.” Id. at 389.).

Kagan, Robert, The Return of History and The End of Dreams (New York: Knopf, 2008) (“The years immediately following the end of the Cold War offered a tantalizing glimpse of a new kind of international order, with nation-states growing together or disappearing, ideological conflicts melting away, cultures intermingling, and increasingly free commerce and communications. The modern democratic world wanted to believe that the end of the Cold War did not just end one strategic and ideological conflict but all strategic and ideological conflict….” “But that was a mirage…. In most places, the nation-state remains as strong as ever, and so, too, the nationalist ambitions, the passions, and the competition among nations that have shaped history…. Struggles for status and influence in the world have returned as central features of the international scene. The old competition between liberalism and autocracy has also reemerged, with the world’s great powers increasingly lining up according to the nature of their regimes. And an even older struggle has erupted between radical Islamists and the modern secular cultures and powers that they believe have dominated, penetrated, and polluted their Islamic world. As these three struggles combine and collide, the promise of a new era of intentional convergence fades. We have entered an age of divergence.” Id. at 3-4.).

Kaiser, David, The Road to Dallas: The Assassination of John F. Kennedy (Cambridge & London: Belknap/Harvard U. Press, 2008).

Kershaw, Ian, Hitler, The Germans, and The Final Solution (Jerusalem: International Institute for Holocaust Research; New Haven & London, Yale U. Press, 2008).

Lambert, Frank, Religion in American Politics: A Short History (Princeton & Oxford: Princeton U. Press, 2008) ("...the two main arguments of this book. The first is that religious coalitions seek by political means what the Constitution prohibits, namely, a national religious establishment, or, more specifically, a Christian civil religious. Religious groups become politically active because of the dissatisfaction with prevailing public policy.... Depending upon their particular notions of the nation's religious heritage, religious groups develop moral agendas that become the centerpieces of their political campaigns. They then must find a political party willing to adopt their agenda and find candidates who will embrace their values and express their visions. On occasion... they attempt to operate as a separate party; more often...they work within an existing party." "The book's second argument is that religion in American politics is contested. That is, any religious group's attempt to represent the nation's religious heritage or claim to be its moral conscience is sure to be met with opposition from other religious groups as well as from nonreligious parties. In American political culture, religion matters, and politicians often recognize its influence by invoking the name of God in public addresses. However, any reference to a particular religion, such as a presidential candidate's speaking in the name of Christ, is viewed as sectarian...." Id. at 5-6.").

Lasch, Christopher, The New Radicalism in America 1889-1963: The Intellectual as a Social Type (New York: Knopf, 1965) ("The main argument of this book is that modern radicalism or liberals, can best be understood as a phrase of the social history of the intellectual." "The intellectual may be defined, broadly, as a person for whom thinking fulfills at once the function of work and play; more specifically, as a person whose relationship to society is defined, both in his eyes and in the eyes of the society, principally by his presumed capacity to comment upon it with greater detachment than those more directly caught up in the practical business of production and power. Because his vocation is to be critical of society, in the most general sense, and because the value of his his criticism is presumed to rest in a measure of detachment from the current scene, the intellectual's relation to the rest of society is never entirely comfortable; but it has not always been as uncomfortable as it is today in the United states. 'Anti-intellectualism' offers only a partial explanation of the present tension between intellectuals and American society. The rest of the explanation lies in the increased sensitivity of intellectuals to attack on themselves as a group. It lies in the intellectuals' own sense of themselves, not simply as individuals involved in a common undertaking, the somewhat hazardous business of criticism, but as members of a beleaguered minority. The tension is a function, in other words, of the class-consciousness of intellectual themselves." Id. at ix-x. [Those who have followed The Cosmopolite Lawyer are aware of my ongoing criticism of the anti-intellectualism of contemporary legal education. That it, among other things, fails to nurture a vocation of detached criticism of society. ] "I have written ... about some of the critics of capitalism, in the hope that their history would tell something, if not specifically about capitalism, about the peculiarly fragmented character of modern society, and beyond that, about what it means to pursue the life of reason in a world in which the irrational has come to appear not the exception by the rule." Id. at xvii. And does not the following have a contemporary ring to it regarding those viewed as inadequately patriotic in their attitude toward the so-called 'War on Terror' or the wisdom of the American War in Iraq? "Thirteen years after Edward A. Ross published the first edition of Social Control, a general war broke out in Europe--the first in a hundred years. Two and a half years later, the United States herself entered the war, and the 'educational' machinery of the modern state was set in option to persuade Americans that the destruction of imperial Germany would make thee world safe for democracy. The 'spiritual associations lying over against the state,' which Ross had hoped would prevent the 'state educational machine' from tyrannizing over the minds of men, not only failed to resist the official war propaganda but often anticipated it, so that it became impossible to tell whether the government was teaching the people to hate or whether the people themselves were forcing the hand of the government. Citizens' groups took it upon themselves to ferret out subversives and punish dissent. They descended on the public schools, tore up German books, abolished the German language. A lynching party in Montana murdered Frank Little, an official of the IWW. In a suburb of Cincinnati, vigilantes seized Herbert S. Bigelow, a liberal whose support of the war his neighbors deemed not sufficiently ardent, threw him into an automobile, took him to a wood, stripped him tied him to a tree, and flogged him until he was covered with blood, then left him to wander alone until he was finally rescued the next morning." Id. at 177-178.).

Lewis, David E., The Politics of Presidential Appointments: Political Control and Bureaucratic Performance (Princeton & Oxford: Princeton U. Press, 2008) (Nice little supplemental reading for those interested in Administrative Law. “This raises…two important questions about the American political system. First, why do some agencies have many appointees and others few? Second, how do political appointments influence management? This study seeks to answer these questions. It investigates the reasons for differences in the number and location of appointees across agencies in different presidential administrations and provides some of the first systematic analysis of the relationship between appointees and agency performance. The study examines how presidents use appointees to both influence public policy and satisfy patronage demands and how these practices influence performance.” Id. at 1-2.).

Matthiessen, Peter, Shadow Country: A New Rendering of the Watson Legend (New York” The Modern Library, 2008).

McDougall, Walter A., Throes of Democracy: The American Civil War Era 1829-1877 (New York: HarperCollins, 2008) (“In American politics only regional or single-issue quixotes can afford to be steadfast. Candidates and parties competing in national politics must constantly trim their sails. That in turn invites voters to choose sides not just on the basis of whose position they share, but on the basis of whose hypocrisy offends their temperaments more.” Id. at 106. “[R]acial antipathies are the most emotional, intractable, embarrassing scandal of the American civic religion.” Id. at 504. “Years ago, while stuck in a railroad station cursing a tardy train, I noticed a man in a jacket bedecked with insignia from Vietnam. Experience had taught me that veterans still advertising their service decades after the fact were probably bitter and down-at-the-heels. But to relieve the tedium I mentioned that I, too, was a Vietnam veteran and struck up a conversation. We exchanges the usual questions--When were you there? What was your outfit? Where were you based?—but then the dialogue flagged. His speech, demeanor, and the clothing suggested that he had a blue-collar background and no success in civil life. We had little in common. But then he surprised me by saying, ‘I’m glad I went, `cause I learned the lesson of Vietnam.’ What was that, I inquired. ‘Say no to bullsh-t,’ he replied. I feigned a cynical chuckle, then quickly waved good-bye to him because I suddenly found myself choking back tears.” Id. at xi.)

McKibben, Bill, ed., American Earth: Environmental Writings Since Thoreau with a foreword by Al Gore (New York: Library of America, 2008) (This is a rather nice anthology. My favorite quotation is from Garret Hardin, 'The Tragedy of the Commons,’ Science, December 13, 1968, an excerpt from which is reprinted here at page 438-450. “In passing it is worth noting that the morality of an act cannot be determined from a photograph. One does not know whether a man killing an elephant or setting fire to the grassland is harming others until one knows the total system in which his act appears. ‘One picture is worth a thousand words,’ said an ancient Chinese; but it may take 10,000 words to validate it. It is as tempting to ecologists as it is to reformers in general to try to persuade others by way of the photographic shortcut. But the essence of an argument cannot be photographed: it must be presented rationally—in words. Id. at 442.).

Morris, Benny, 1948: The First Arab-Israeli War (New Haven & London: Yale U. Press, 2008) ("The 1948 War, to be sure, was a milestone in a contest between two national movements over a piece of territory. But it was also...part of a more general, global struggle between the Islamic East and the West, in which the Land of Israel/Palestine figured, and still figures, as a major battlefront. The Yishuv saw itself, and was universally seen in the Muslim Arab world, as an embodiment and outpost of the European 'West.' The assault of 1947-1948 was an expression of the Islamic Arabs' rejection of the West and its values as well as a reaction to what it saw as a European colonialist encroachment against a sacred Islamic soil. There was no understanding (or tolerance) of Zionism as a national liberation movement of another people...." "Historians have tended to ignore or dismiss, as so much hot air, the jihadi rhetoric and flourishes that accompanies the two-stage assault on the Yishuv and the constant references in the prevailing Arab discourse to that earlier bout of Islamic battle for the Holy Land, against the Crusaders. This is a mistake. The 1948 War, from the Arabs' perspective, was a war of religion as much as, if not more than, a nationalist war over territory. Put another way, the territory was sacred: its violation by infidels was sufficient grounds for launching a holy war and its conquest, a divinely ordained necessity..." Id. at 394.).

Niebuhr, Reinhold, The Irony of American History with a new introduction by Andrew J. Bacevich (Chicago & London: U. of Chicago Press, 1952, 2008) (A number of social critics have recently commented on the decline of the United States. For instance, though the twentieth century is regarded as the American Century, some writers are beginning to assert that the twenty-first century will not be (many predict that it will be the Asian Century). For example, there has been concerns as to whether the U.S. dollar will remain the currency of choice in global trade. Notwithstanding the periods of retreat, the American economy had undergone fairly constant expansion since the nation's founding and, this has enabled Americans to avoid, or to minimize, certain social challenges which affected their European counterparts. Among these were the challenges of class struggle. America may no longer be able to avoid such social challenges and conflict if America is, in a sense, in decline. "The Jeffersonian conception of virtue, had it not overstated the innocence of American social life, would have been a tolerable prophecy of some aspects of our social history which have distinguished us from Europe. For it can hardly be denied that the fluidity of our class structure, derived from the opulence of economic opportunities, saved us from the acrimony of the class struggle in Europe, and avoided the class rebellion, which Marx could prompt in Europe but not in America. When the frontier ceased to provide for the expansion of opportunities, our superior technology created ever new frontiers for the ambitious and adventurous. In one sense the opulence of American life has served to perpetuate Jeffersonian illusions about human nature. For we have thus far sought to solve all our problems by the expansion of our economy. This expansion cannot go in forever and ultimately we must face some vexatious issues of social justice in terms which will not differ too greatly from those which the wisest nations of Europe have been forced to use." Id. at 28-29. "Yet the price which American culture has paid for this amelioration of social tensions through constantly expanding production has been considerable. It has created moral illusions about the ease with which the adjustment of interests to interest can be made in human society. These have imparted a quality of sentimentality to both our religious and our secular, social and political theories. It has also created a culture which makes 'living standard' the final norm of the good life and which regards the perfection of techniques as the guarantor of every cultural as well as of every social-moral value. Id. at 57. "The constant multiplication of our high school and college enrollments has not had the effect of making us the most 'intelligent' nation, whether we measure intelligence in terms of social wisdom, aesthetic discrimination, spiritual serenity or any other basic human achievement. It may have made us technically the most proficient nation, thereby proving that technical efficiency is more easily achieved in purely quantitative terms than any other value of culture." Id. at 60. Re-read that last passage substituting 'law school' for 'high school and college'. Note: The Introduction by Andrew J. Bacevich is very good at showing the relevance of this work to our present time.).

O’Neill, Joseph, Netherland: A Novel (New York: Pantheon, 2008) (“Would American security be improved or worsened by taking over Iraq? I did not know, because I had no information about the future purposes and capacities of terrorists or, for that matter, American administrations; and even if I were to have such information, I could still not hope to know how things would turn out. Did I know if the death and pain caused by a war in Iraq would or would not exceed the miseries that might likely flow from leaving Saddam Hussein in power? No. Could I say whether the right to autonomy of the Iraqi people—a problematic entity, by all accounts—would be enhanced or diminished by an American regime change? I could not. Did Iraq have weapons of mass destruction that posed a real threat? I had no idea; and to be truthful, and to touch on my real difficulty, I had little interest. I didn’t really care.” “In short, I was a political-ethical idiot. Normally, this deficiency might have been inconsequential, but these were abnormal times.” Id. at 100.).

O’Reilly, Kenneth, Nixon’s Piano: Presidents and Racial Politics from Washington to Clinton (New York: The Free Press, 1995)(“The politics of race is less dishonorable today than it was two hundred years ago when Washington commiserated with Lafayette on the evils of slavery and then conspired alone to do nothing to stop it. In our time we merely have candidate Bill Clinton commiserating with the ghosts of Richard Nixon’s law-and-order crew and then doing nothing to stop the execution of a brain-damaged black man, and then President Bill Clinton trying to figure out how he might in the odd case get to Speaker Gingrich’s right on matters of race. If the southern strategists of the 1980s made Willie Horton as fitting an image for the Republicans as the elephant, Clinton campaigned and to some extent governed as if he were conspiring to replace the Democratic donkey with the image of Rickey Ray Rector….Too many presidents of the far past devoted too much energy to protecting slavery and them Jim Crow, and too many presidents of the more recent past have devoted too much energy to ensuring that the nation’s politics remains organized along racial fault lines.” Id. at 422-423. That last line, written in 1995 seem to echo still in the rhetoric of the 1996, 2000, 2004, and certainly the 2008 presidential campaigns.).

Patchett, Ann, What Now? (New York: Harper, 2008) (“It’s up to you to choose a life that will keep expanding. It takes discipline to remain curious; it takes work to be open to the world—but…what noble and glorious work it is.” Id. at 77-78.).

Perlstein, Rick, Nixonland: The Rise of a President and the Fracturing of America (New York: Scribner, 2008) (This an important read, benchmarking where we have been politically, racially, ethnically, etc., and some of the many same challenges for our future. It was a painful read, and the 34 chapters required this reader to pause at the end of each to reflect on some mundane, yet incredible, observations and juxtapositions. Case in point: “In the middle of May an L.A. cop stopped a black man named Leonard Deadwyler for speeding through Watts. He stuck his gun in the driver’s-side window—‘to attract the driver’s attention,’ he later testified. He also claimed the car suddenly lurched forward, causing his gun to discharge, Leonard Deadwyler slumped into the lap of his wife and muttered his last words—‘But she’s having a baby’—as his two-year-old son looked on from the backseat. He had been speeding her to the nearest hospital, miles away; there was no hospital in Watts—an area twice the size of Manhattan.” Id. at 89. The book is about political warfare, about a political war which all of us are still—actively or passively—engaged. “After [the] Checkers [Speech], to the cosmopolitan liberals, hating Richard Nixon, congratulating yourself for seeing through Richard Nixon and the elaborate political poker bluffs with which he hooked the sentimental rubes, was becoming part and parcel of a political identity.” “And to a new suburban mass middle class that was tempting itself into Republicanism, admiring Richard Nixon was becoming part and parcel of a political identity based in seeing through the pretentions of the cosmopolitan liberals which claimed to know so much better than you (and Richard Nixon) what was best for your country. This side saw everything that was most genuine in Nixon, everything that was most brave—who saw the Checkers Speech for what it also actually was, not just a hustle but also an act of existential heroism: a brave refusal to let haughty ‘betters’ have their way with him. They were no less self-congratulatory than the liberals.” “Call the America they shared—the America over whose direction they struggled for the next fifty years, whose meaning they continue to contest even as this book goes to press, even as you hold it in your hands—by this name: Nixonland. Study well the man at Nixonland’s center, the man from Yorba Linda. Study well those he opposed. The history that follows is their political war.” Id. at 43. Again, it remains our political war. “Do Americans not hate each other enough to fantasize about killing one another, in cold blood, over political and cultural disagreements? It would be hard to argue they do not. “How did Nixonland end? It has not ended yet.” Id. at 748. READ THIS BOOK!).

Perlstein, Rick, ed., Richard Nixon: Speeches, Writings, Documents (Princeton & Oxford: Princeton U. Press, 2008) (From speech, April 30, 1970: “My fellow Americans, we live in an age of anarchy, both abroad and at home. We see mindless attacks on all the great institutions which have been created by free civilizations in the last 500 years. Even here in the United States, great universities are being systematically destroyed. Small nations all over the world find themselves under attack from within and from without.’ “If, when the chips are down, the world’s most powerful nation, the United States of America, acts like a pitiful, helpless giant, the forces of totalitarianism and anarchy will threaten free nations throughout the world. “ "It is not our power but our will and character that is being tested tonight….” Id. at 206.)

Posner, Richard A., How Judges Think (Cambridge, Ma. & London: Harvard U. Press, 2008).

Rabban, David M., Free Speech In Its Forgotten Years (Cambridge: Cambridge U. Press, 1997) ("focus[ed] primarily on the history of ideas about free speech in the forgotten decades between 1870 and 1920." Id. at 19).

Rieder, Jonathan, The Word of the Lord Is Upon Me: The Righteous Performance of Martin Luther King, Jr. (Cambridge & London: Belknap/Harvard U. Press, 2008).

Rifkin, Jeremy, The European Dream: How Europe’s Vision of the Future Is Quietly Eclipsing the American Dream (New York: Jeremy P. Tarcher/Penguin, 2004) ("One could point to many reasons why Europeans seem to be leading the way into the new era. But among all the possible explanations, one stands out. It is the cherished American Dream itself, once the ideal and envy of the world, that has led America to its current impasse. That dream emphasizes the unbridled opportunity of each individual to pursue success, which, in the American vernacular, has generally meant financial success. The American Dream is far too centered on personal material advancement and too little concerned with the broader human welfare to be relevant in a world of increasing risk, diversity, and interdependence. It is an old dream, immersed in a frontier mentality, that has long since become passé. While the American Spirit is tiring and languishing in the past, a new European Dream is being born. It is a dream far better suited to the next stage in the human journey--one that promises to bring humanity to a global consciousness befitting an increasingly interconnected and globalizing society." "The European Dream emphasizes community relationships over individual autonomy, cultural diversity over assimilation, quality of life over the accumulation of wealth, sustainable development over unlimited material growth, deep play over unrelenting toil, universal human rights and the rights of nature over property rights, and global cooperation over the unilateral exercise of power." Id. at 3. "Some observers of the post-modern psyche are growing concerned about the loss of personal identity in an increasingly thick world.... In their effort to mediate all of the stimuli and accommodate all of the possible connections, young people continue to create new sub-selves and meta-selves--in effect, giving over bits and pieces of their persona to each new relationship just to stay engaged in all of the networks that surround them. The fear is being excluded. If being propertied and enjoying autonomy and exclusivity was the sine qua non of the American Dream, having access and being embedded is the much sought-after goal in the new era. Worried they may lose access, young people divide their attention into smaller and smaller fragments just to keep up with all the possible connections beckoning them." "Overcoming the sense of personal isolation and alienation that can accompany an electronically mediated environment requires a new integrative mission powerful enough to be transformative in nature. What's sorely missing is an overarching reason for why billions of human beings should be increasingly connected. To what end?... Six billion individuals connections, absent any overall unifying purpose, seems a colossal waste of human energy. More important, global connections without any real transcendent purpose risk a narrowing rather than an expanding of human consciousness." Id. at 375-377. On this last point, one might simply note two things:. First, an increasing shallowness in these mushrooming 'connections'. And, second, the glibness of a lot of post-modern communication. In an age of identity politics--and one in which one has multiple and increasingly fragmented identities--, who one is seems to have no more substance than what one is wearing that day. What one wears on a given day may project an image, but the projecting of an image is not the same as substantively being the kind of person thus projected. How many of us, in our efforts to just get through the day, are not authentic but rather simply flakes, fakes, or frauds?)

Roberts, J. M., Twentieth Century: The History of the World, 1901 to 2000 (New York: Viking, 1999) ("The history of the twentieth century has...to be approached with (what is sometimes deplored) a 'Eurocentric' stance. In many ways, the world actually was centred on Europe when the twentieth century began. Much of that century's story is of how and why that ceased to be true before it ended." Id. at 38).

Sachs, Jeffrey D., Common Wealth: Economics for a Crowed Planet (New York: The Penguin Press, 2008) (This is actually an important read for everyone, and I don't see how any student of environmental law can not read it. Here is what Edward O. Wilson writes in the book's Foreword. "...Jeffrey D. Sachs has written a state of the world report of immediate and enormous practical value....a crystal-clear analysis, a synthesis, a reference work, a field manual, a guidebook, a forecast, and an executive summary of recommendations fundamental to human welfare. The world has changed radically in the past several decades; it is going to change more, faster and faster, In spite of all we have accomplished through science and technology--indeed because of it--we will soon run out of margin. Now is the time to grasp exactly what is happening. The evidence is compelling: we need to redesign our social and economic policies before we wreck this planet. At stake is humankind's one shot at a permanently bright future." Id. at xi.).

Sher, Richard B., The Enlightenment and the Book: Scottish Authors and Their Publishers in Eighteen-Century Britain, Ireland and America (Chicago & London: U. of Chicago Press, 2008) ("In my view, the common core [of the Enlightenment] resides not in a fixed body of doctrine or a universal reform program or an institutional structure of a particular field or school of thought but rather in a set of general values to which proponents of the Enlightenment adhered. These values could be found among men of letters from the America in the west to the Russian in the east, and from Scotland in the north to Naples in the south, despite variations within different national and regional contexts, among different schools of thought, and among particular individuals. They included improvements, or a commitment to bettering the human condition, morally and perhaps spiritually as well as materially, sometimes with a local or national focus and sometimes with an eye on mankind as a whole; humanity and cosmopolitan sensibility, or a sense of sympathy and fellow feeling toward other human beings, and opposition to torture, slavery, and other practices judged to be inhumane, sociability, or an awarements of, and a preference for, the social character of human nature and human society; toleration of those holding different beliefs about religion and other matters, and a corresponding adherence to basic liberties of worship, speech, and written communication (even if there was disagreement about just how far those and other liberties should extend); intellectualism, or dedication to cultivating the powers of the mind for understanding human nature, society, and the natural world, in accordance with Kant' famous motto of enlightenment, "Dare to Know,' and a concomitant belief in the power of learning as a means of bringing about improvement and aestheticism, or an appreciation for the arts, including painting, music, poetry, and imaginative literature." Id. at 16-17. Beyond a few isolated pocket here and there, I doubt one would find much evidence of a strong presence of that common core in contemporary American society, except in the breach. Americans for the most part remain very much anti-intellectual, more interested in creature comforts than in cultivating the power of the mind, and so certain that they already know it all so there is not need to dare to know. I would also point to the rather base level at which the presidental election process is being conducted. No candidate is truly discussing ideas; rather there is identity politics and the pandering to fear of 'those not like us'.).

Siegel, Lee, Against the Machine: Being Human in the Age of the Electronic Mob (New York: Spiegel & Grau, 2008) (“For over a hundred years, high culture has been merging with popular culture. But now all experience is available as a form of culture. Which means that there are no criteria for judging these disjointed echoes of each other except their popularity. And what drives popularity is a routine’s success in merging with the mass, in extending the most generic and derivative appeal. You must sound more like everyone else. Exaggeration, intensification, magnification of proven success, become highly effective means of success. The loudest, outrageous, or most extreme voices sway the crowd of voices this way; the cutest, most self-effacing, most ridiculous, or most transparently fraudulent voices sway the crowd of voices that way. A friend of mine call this ‘mega-democracy,’ meaning democracy about to tip through perversion of its principles into its opposite. I call it democracy’s fatal turn.” Id. at 78-79.).

Silko, Leslie Marmon, Ceremony introduced by Larry McMurtry (New York: Penguin Books, 1977, 2006) (From the jacket cover: "Set in the insular world of the Laguna Pueblo Reservation but resonating far beyond, Leslie Marmon Silko's novel tells the story of Tayo, an army veteran of mixed ancestry who returns to the reservation, scarred by his experience as a prisoner of the Japanese. Only by by immersing himself in the Indian past and its traditions can he begin to regain the peace that was taken from him. Masterfully written, filled with the somber majesty of Pueblo myth, Ceremony is a work of enduring power.").

Smith, C. Fraser, Here Lies Jim Crow: Civil Rights in Maryland (Baltimore: The Johns Hopkins U. Press, 2008).

Sternberg, Robert J., ed., The Psychology of Hate (Washington: DC.: American Psychological Association, 2005).

Sternberg, Robert J., ed., Why Smart People Can Be So Stupid (New Haven: Yale U. Press, 2002).

Sternberg, Robert J., & Todd I. Lubart, Defying the Crowd: Cultivating Creativity in a Culture of Conformity (New York: Free Press, 1995).

Sternberg, Robert J., & Karin Sternberg, The Nature of Hate (Cambridge: Cambridge U. Press, 2008).

Updike, John, Due Considerations: Essays and Criticism (New York: Knopf, 2007) (From 'The Tried and the Treowe': "One of the casualties of the electronic age is, perhaps, a feel for history, in its cyclical repetitions and organically gradual progress. To minds conditioned by the rapid electronic reflexes of the computer and its allied entertainments, the end of the world is a flicker away, around the corner, and the significant past happened just yesterday. Compared with virtual reality, actual reality is sluggish. The patient virtues of the rural village make a hard sell even in the year of a Presidential campaign. But is every novelty around us rally unprecedented and radically transformative? Was not bio-engineering, for instance, carried on by the prehistoric New World farmers who developed corn out of wild maize, and by the hunting and sheepherding tribesmen who tamed and split the wild wolf into an astonishing variety of canine breeds? Can family values, so called, and the morality of social interdependence be banished by a tap of the DELETE button, or do they sturdily spring from our basic biological makeup, which includes an instinctive, self-serving decency?...Amid so much electronic clutter and chatter in this disheveled, oversupplied, desperately commercial world, the human organism compels us to remain true to it or else fall into ill health and spiritual discordancy. Freed from physical exercise, we re-embrace it for the body's sake; freed from religious fear, we still seek peace, the relief from competitive striving, that religious acceptance brings." Id. at 72, 74-75.).

Voegelin, Eric, The Collected Works of Eric Voegelin, Volume 1: On the Form of the American Mind translated from the German by Ruth Hein, edited with an introduction by Jurgen Gebhardt and Barry Cooper (Baton Rouge & London: Louisiana State U. Press, 1995) (For those law students with an interest in history of legal ideas, two essays are of particular interest, ‘Anglo-American Analytic Jurisprudence’ and ‘On John R. Commons’.).

Voegelin, Eric, The Collected Works of Eric Voegelin, Volume 2: Race and State translated from the German by Ruth Hein, edited with an introduction by Klaus Vondung (Baton Rouge & London: Louisiana State U. of Press, 1997) (From the Editor’s Introduction: “When and where these two books written and published are critical to a full understanding of Race and State and The History of the Race Idea [see below]. On January 30, 1933, Hitler was appointed chancellor of the German Reich, which opened the way for establishing the dictatorial regime of the National Socialist Party during the following two years. In March, 1933, Austrian chancellor Engelbert Dollfuss overthrew, by means of a coup d’etat, the parliamentary constitution of Austria and introduced an authoritarian regime. This was an attempt to overcome the parliamentary stalemate in Austria, to rein in the strong Social Democratic Party, and, at the same time, to ward off the growing threat of the National Socialist movement, which had become very active and successful in Austria, especially after Hitler came to power in Germany....” “This situation must have pre4sented a compelling motive to an alert and critical young scholar like Eric Voegelin to take a closer look at race ideas and race theories. Race ideas played an important role in various political ideologies of the tine; in National Socialism they were essential for the project of a renewed political and social community. Race theories had developed, some of them in close proximity to the National Socialist movement, to claim a scientific status for the discourse on race. Voegelin’s two books on race can be viewed as a grand test of the discourse on race. As ‘theory,’ its scientific validity is scrutinized; as ‘idea,’ its history is traced, and its motives, functions, and consequences in the realm of politics and society are analyzed. The result of Voegelin’s investigation was devastating. He ascertained the aporias of race theories in general and proved the insufficiency of National Socialist race theories in particular, thereby attacking the very center of national Socialism. And he demonstrated that National Socialist race ideas, which masked themselves as theories, were basically rooted in an inferiority complex, and that they served to reduce the mind-body unit of human beings to animal categories. Thus Voegelin’s grand test dismissed the discourse on race for good....” Id. at ix-x.).

Voegelin, Eric, The Collected Works of Eric Voegelin, Volume 3: The History of the Race Idea translated from the German by Ruth Hein, edited with an introduction by Klaus Vondung (Baton Rouge: Louisiana State U. Press, 1998) (It is important to underscore that this work is not a history of race, but rather a history of an idea: ‘the race idea’. Here in the United States one need only reflect on how all the various presidential candidates (e.g., Clinton, McCain, Obama) and their supporters invoked and manipulated the idea(s) of race. Sometimes it was explicit (e.g., White voters, Black voters, Latino voters, and Asian voters), often times it was implicit and in code (e.g., working class or catholic as code for White, ethnic voters). Who started it, who behaved worse, etc., are the minor issues. The major issue is why an electorate, supposedly intelligent, cannot get beyond the race idea. Perhaps Voegelin explains why. The story is not uniquely American. “These reflections ... lead us right into the center of the race idea as a political idea shaping the community.... We have investigated the systematic content of the race idea and the historical construction of that idea of man that is presupposed in modern race theory; now we see how the race idea becomes effective in the construction of the community–effective in the two intimately connected ways of objectively constructing the community through the idea of race and of subjectively convincing people involved in the community that the race is essential for their connectedness as a community. Race is no longer merely the object of scrutiny, seen at a distance; but a body-soul-spirit reality that includes the scholar himself, and the concept of race that is formed in the concrete situation is no longer a scientific concept but a tool for interpreting the meaning of one’s own life and the broader life of the community. It is not merely the creation of a passive attempt at ‘understanding,’ but an instrument in the service of the future shaping of the community; it is the idea of the community as a bodily context as it is projected into the future by its members.” Id. at 180. The race idea (i.e., ‘we are different from, and better than, them’) works politically. Identity politics! Yes, Virginia, we very much reside in Nixonland still.).

Voegelin, Eric, The Collected Works of Eric Voegelin, Volume 4: The Authoritarian State: An Essay on the Problem of the Austrian State translated from the German by Ruth Hein, edited with an introduction by Gilbert Weiss, and Historical Commentary on the Period by Erika Weinzierl (Columbia & London: U. of Missouri Press, 1999).

Voegelin, Eric, The Collected Works of Eric Voegelin, Volume 5: Modernity Without Restraint: The Political Religions; The New Science of Politics; and Science, Politics, and Gnosticism edited with an introduction by Manfred Henningsen (Columbia & London: U. of Missouri Press, 2000) ( From The Political Religions: “It is possible to utilize the insights that depth psychology has gained into the instinctual life of individuals and of the masses without the appeal to the desires arousing any resistance. Just as criticism of ideology did not result in the destruction of the inner-worldly belief in revelations, the insight into the depths of the life of desires has not let to a rationalization if the personality; to the contrary, it has given rise to the recognition that hate is stronger than love, and that, therefore, the appropriate means of realizing common objectives are to disinhibit man’s aggressions and to build up hate.” Id. at 63.).

Voegelin, Eric, The Collected Works of Eric Voegelin, Volume 6: Anamnesis on the Theory of History and Politics translated from the German by M. J. Hanak, based upon the abbreviated version originally translated by Gerhart Niemeyer, edited with an introduction by David Walsh (Columbia & London: U. of Missouri Press, 2002) (“The problems of human order in society and history originate in the order of consciousness. Hence the philosophy of consciousness is the centerpiece of a philosophy of politics.” Id. at 33. The following passage reminded me of my own take on the challenges to understanding contemporary American society. “[A]s far as their substantive content is concerned, our contemporary institutions offer only minimal opportunities of access to the reality of knowledge. If, for instance, one wishes today to gain information about the great problems of thinking about order in Germany, one would be well advised to real the literary works of Robert Musil, Hermann Broch, Thomas Mann, Heimito von Doderer, or the dramas of Frisch and Durrrenatt, rather than the professional literature of political science.” Id. at 389. So much of what appears in the academic journals (including law journals) is actually unhelpful in gaining even a threshold on the reality of knowledge, on the reality of life. Thus, I always suggest one read a lot of good, contemporary, literary fiction. Writers of good literary works often times seem to have a better, deeper, most honest insight into human consciousness. For instance, the writers for the HBO series The Wire have a greater sense of how the world actually work, especially institutions such as the police, the press, the schools, the electorate, etc. As noted by Richard Russo in his novel, Bridge of Sighs (New York: Knopf, 2007), most of us spend a lot of time pretending we don’t know what we in fact know. Talk about a false consciousness. And what we in fact know is that the system is a sham.).

Voegelin, Eric, The Collected Works of Eric Voegelin, Volume 7: Published Essays 1922-1928 translated from the German by M. J. Hanak, edited with an introduction by Thomas W. Heilke and John Von Heyking (Columbia & London: U. of Missouri Press, 2003).

Voegelin, Eric, The Collected Works of Eric Voegelin, Volume 8: Published Essays 1929-1933 translated from the German by M. J. Hanak and Jodi Cockerill, edited with an introduction by Thomas W. Heilke and John Von Heyking (Columbia & London: U. of Missouri Press, 2003).

Voegelin, Eric, The Collected Works of Eric Voegelin, Volume 9: Published Essays 1934-1939 translated from the German by M. J. Hanak, edited with an introduction by Thomas W. Heilke (Columbia & London: U. of Missouri Press, 2001).

Voegelin, Eric, The Collected Works of Eric Voegelin, Volume 10: Published Essays 1940-1952 edited with an introduction by Ellis Sandoz (Columbia & London: U. of Missouri Press, 2000).

Voegelin, Eric, The Collected Works of Eric Voegelin, Volume 11: Published Essays 1953-1965 edited with an introduction by Ellis Sandoz (Columbia & London: U. of Missouri Press, 2000) (From the essay ‘The Oxford Political Philosophers’: “I shall conclude on an Aristotelian point.... The polis offers the opportunity for full actualization of human nature. The fully actualized man is the spoudaios, the mature man, who has developed his dianoetic excellences and whose life is oriented by his noetic self. This is the decisive issue in a philosophy of politics. The issue that the distinguished authors whose work we have discussed studiously avoid. Under pretext of respect for the freedom of conscience the ignore the fact that conscience, however ‘good’ it may be putatively, can only be as good as the man who has it. A theory of conscience that shies away from ontology, and in particular from a theory of the nature of man, is empty; it is a parlor game in which one can indulge as long as the surrounding society contains enough Christian substances to make at least the worst sort of good consciences socially ineffective; but even under such favorable conditions...this nihilistic theory of conscience contributes to the intellectual and moral confusion that paves the way for the best of all consciences, viz., that of the totalitarian killers. All men are equal, to be sure, or they would not be individuals 0of one species; but sometimes it is forgotten that the point in which they most certainly are equal in their capacity for evil. Enough of that evil is rampant; and this ins not time to pat the viciously ignorant on the back for being ;sincere,’ or abiding by their ‘conscience.’ This is a time for the philosopher to be aware of his authority, and to assert it, even if that brings him into conflict with an environment infested by dubius ideologies and political theologies–so that the word of Marcus Aurelius will apply to him: ‘The philosopher–the priest and the servant of the gods.’” Id. at 24, 45-46.) .

Voegelin, Eric, The Collected Works of Eric Voegelin, Volume 12: Published Essays 1966-1985 edited with an introduction by Ellis Sandoz (Baton Rouge & London: Louisiana State U. of Press, 1990).

Voegelin, Eric, The Collected Works of Eric Voegelin, Volume 13: Selected Book Reviews translated and edited by Jodi Cockerill and Barry Cooper, with an introduction by Barry Cooper (Columbia & London: U. of Missouri Press, 2001).

Whitman, James Q., The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (New Haven & London: Yale U. Press, 2008) (This is a very worthwhile read, particularly for those interested in criminal law and/or the possible religious foundation of legal principles. “The best lesson to draw from the history of reasonable doubt is not a lesson about how to apply reasonable doubt correctly, either according to its original intent or according to its original context. Those are senseless goals. The real root of our confusion about reasonable doubt has to do with the fact that we have lost the old conviction that judging and punishing are morally fearsome acts. We have a far weaker sense than our ancestors that we should doubt our own moral authority when judging other human beings. There were tough-on-crime programs in the past just as there are now. But in our own tough-on-crime era, we find it easy to forget what Christian jurists remembered during the tough-on-crime era of the late fifteenth century: ‘[T]he judge must be brought to punish only in sorrow…if the judge glories in the death of a man, as no small number do in our age, he is a murderer.’ We have lost any sense that the challenge facing any humane system of law is to protect the guilty as well as the innocent…. Open-hearted human beings condemn others in a spirit of humility, of duteousness, of fear and trembling about their own moral standing. That is what our ancestors, for all their bloodiness, believed; and it is why they spoke about ‘reasonable doubt’.” Id. at 211-212 (citation omitted).).

Wilentz. Sean, The Age of Reagan: A History, 1974-2008 (New York: Harper, 2008).

Wittes, Benjamin, Law and The Long War: The Future of Justice in the Age of Terror (New York: The Penguin Press, 2008) (This little book is one I wish every citizen would read and every current law student should be required to read. The subject is habeas corpus. The good news is this: “Modern America is long past the stage as society where it will tolerate executive power unmediated by some other institution of government. One can still make a theoretical argument for an executive only approach to problems like global terrorism. In practice, however, the argument is an unreal dream. When the president bypasses Congress—and Congress so willingly lets him do so—the result will not, in fact, be unrestrained executive latitude. It will be litigation, and another institution will step in to fill the void; the courts. When the executive branch untethers itself from statutory law, the courts will examine its actions with a more powerful microscope. If they lack clear law to apply, they will tend to create it with whatever surrogates might be available. The day has long passed when the executive branch can count on the courts to declare that the absence of a Congress saying ‘no’ is the equivalent of the legislature’s saying ‘yes’.” Id. at 61-62. The bad news is this: “Habeas corpus litigation is not a policy making engine.” Id. at 129.).

Wolterstroff, Nicholas, Justice: Rights and Wrongs (Princeton & Oxford: Princeton U. Press, 2008) (This is an interesting read for those with a philosophical bent. Though, I should acknowledge, I have never found natural rights theories intellectually appealing. In working through the text I was reminded of how most of legal education has gotten far away from studying first principles, and how few law students are even required to think seriously about the nature of legal rights (which is quite different from thinking about the consequences of recognizing—or not-- a particular legal right). Few law students today graduate even having taken a basic jurisprudence or legal philosophy course. Do students not take such courses because the courses are not offered, or are the courses not offered because the students are not interested in taking them? Does it simply reflect the decline in liberal arts education in the United States and the rise of pre-professional and professional education? Anyway, as Wolterstorff notes, “Not only are moral and legal rights intertwined. Amidst their differences are deep structural similarities; and it has been my experience that discussions of legal rights by legal philosophers often illum8nates moral rights. In particular, I have found this to be the case for one of the classics in twentieth-century legal philosophy, W. H. Hohfeld’s essay, 'Fundamental Legal Conceptions as Applied to Judicial Reasoning'." Id. at 242. What law student, what law professor, today has read Hohfeld? Our loss!).

Zakaria, Fareed, The Post-American World (New York & London: Norton, 2008).

SOME FILMS WELL WORTH ANOTHER VIEWING AND FURTHER DISCUSSION:
Director Tony Gilroy's Michael Clayton (2007).
Director Afred Hitchcock's Rope (1948)
Director Norman Jewison's In the Heat of the Night (1967).
Director Thomas McCarthy's The Visitor (2008).
Director William Wellman's The Ox-Bow Incident (1942)
Director Fred Zinnemann's High Noon (1952).

All that said, summer is over (for me). Fall classes begin in 2 weeks.

Cosmopolitan Lawyer

August 19, 2008

FIVE WORTHWHILE READS FOR ADVANCED LAW STUDENTS

PLEASE BE SURE YOU READ THE AUGUST 27, 2008 ISSUE OF THE NEW REPUBLIC

August 3, 2008

“BUT WHAT DOES IGNORANCE MATTER IF YOU ALREADY POSSESS THE KEY TO THE UNIVERSE?” ARTHUR SCHLESINGER, JR.

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