Adler, Matthew D. & Eric A. Posner, New Foundations of Cost-Benefit Analysis (Cambridge & London: Harvard U. Press, 2006).
Boyd, Brian, On the Origin of Stories: Evolution, Cognition, and Fiction (Cambridge & London: Belknap/Harvard U. Press, 2009).
Burns, James MacGregor, Packing the Court: The Rise of Judicial Power and the Coming Crisis of the Supreme Court (New York: The Penguin Press, 2009) (This brief synthesis of the political history of the United States Supreme Court is very nicely done, making a strong case for its bottom line thesis: "[Chief Justice] John Marshall was wrong: it is emphatically the province and duty of the American people, not the nine justices of the United States Supreme Court, to say what the Constitution is. A national reappraisal of the all-powerful court chosen by judicial roulette is crucial if American democracy is to meet the rising challenges of the twenty-first century." Id. at 259.).
Canaday, Margot, The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton & Oxford: Princeton U. Press, 2009) ("Unlike comparable European states, which were well established before sexologists "discovered" the homosexual in the late nineteenth century, the American bureaucracy matured during the same years that scientific and popular awareness of the pervert exploded on the American continent. This study examines three of the "engines" of the twentieth-century state--the Bureau of Immigration, the military, and the federal agencies that administered welfare benefits--to demonstrate how federal interest in homosexuality developed in tandem with the growth of the bureaucratic state. In emphasizing the relationship between state formation and homosexuality identity, I do not only seek to put history of sexuality into closer dialogue with political and legal history, but to complicate what has now become a standard interpretation within the field of gay and lesbian history as well. Namely, that extreme state repression of sex and gender nonconformity in the mid-twentieth century was a result of the sudden visibility of gays and lesbians during and after World War II." Id. at 2. "The state did not, I argue, simply encounter homosexual citizens, fully formed and waiting to be counted, classified, administered, or disciplined.... Rather, the state's identification of certain sexual behaviors, gender traits, and emotional ties as grounds for exclusion (from entering the country, serving in the military, or collecting benefits) was a catalyst in the formation of homosexual identity. The state, in other words, did not merely implicate but also constituted homosexuality in the construction of a stratified citizenry." "Homosexuality is thus a legal category as much as a medical or psychiatric one. This study not only sets the federal regulation of homosexuality in longer historical view, but also offers an account of the bureaucratization of homosexuality--something forged, in short, through legal and administrative processes. To uncover those processes is to challenge the law's own tendency to authorize homosexuality as somehow pregiven or even natural in its constitution." Id. at 4.).
Crawford, Matthew B., Shop Class as Soulcraft: An Inquiry Into the Value of Work (New York: The Penguin Press, 2009) (See Francis Fukuyama’s review, “Making Things Work,” in the NYT Book Review, Sunday, June 7, 2009).
Fredriksen, Paula, Augustine and the Jews: A Christian Defense of Jews and Judaism (New York: Doubleday, 2008).
Grafton, Anthony, Worlds Made by Words: Scholarship and Community in the Modern West (Cambridge & London: Harvard U. Press, 2009) ("Sit in your local coffee shop and your laptop can tell you a lot, especially if you wield your search terms adeptly. But if you want a deeper, more local knowledge, you will still have to take the narrower path that leads between the lions and up the stone stairs. There--as in great libraries around the world--you will use all the new sources, all the time, You will check musicians' names and dates at Grove Music Online, read Marlowe's Doctor Faustus on Google Books or EEBO, or savor the idiosyncrasies of British justice as exhibited in the online proceedings of the Old Bailey. But these streams of data, rich as they are, will illuminate rather than eliminate the unique books and prints and manuscripts that only the library can put in front of you. For now, and for the foreseeable future, if you want to piece together the richest possible mosaic of documents and texts and images, you will have to do it in those crowded public rooms where sunlight gleams on varnished tables, as it has for than a century, and knowledge is still embodied in millions of dusty, crumbling, smelly, irreplaceable manuscripts and books." Id. at 323-324.).
Hardin, Russell, How Do You Know?: The Economics of Ordinary Knowledge (Princeton & Oxford: Princeton U. Press, 2009) (This is very much a worthwhile read for law teachers and law students. From the Preface: "We often say of someone's action that it is irrational. I wish to take a charitable view and suppose that people are not generally irrational according to their own assessments of what they are doing. They seem to be irrational according to some second-party assessment of even a putatively objective account of their interests, and of the means to achieve their ends...." "For explaining human behavior and choice we need an economic theory of knowledge, meaning economic in a very broad and even loose sense. The theory would not be about what the philosophical epistemologist's criteria for truth claims should be, but rather about why we come to know what we know or believe. We can use such a theory to make sense of many behaviors and beliefs, such as religious, moral, and pragmatic beliefs, and of limits on popular knowledge of science. In politics, such a theory makes sense of some aspects of liberalism, cultural commitments, extremism, and voters' lack of knowledge, and it undercuts the median-voter model of party positions in a democracy. Here I present a theory of ordinary knowledge and then apply it to many contexts. Such a theory can explain many seemingly systematic failures of individual choice." Id. at xi.).
Hardin, Russell, Indeterminacy and Society (Princeton & Oxford: Princeton U. Press, 2003).
Hardin, Russell, One For All: The Logic of Group Conflict (Princeton & Oxford: Princeton U. Press, 1995) (I shake my head in amazement when I hear or read supposedly well-educated people talking about the post-racial American society now that an African-American has been elected president of the United States. I understand the hopefulness of those who are simply being hopeful. Others, however, are not being hopeful. There are being unrealistic at best, and dishonest at worst. Why? Because they are not acknowledging the continued importance to individuals--be they white, black, brown, yellow, red or purple--of identity and identification. Hardin, writing more than a decade before the 2008 Presidential election, is on point. "The literatures on personal and ethnic identity commonly run two matters together: identity in some objective sense and subjective identification...." "Those who tout the identity of members of some group often seem to intend a normative assertion about the rightness or goodness of identification on the part of those who share the identity. Identity, however, is often not at all objective. Or, rather, one should say, what objectively defines membership in some group is not the proclaimed ethnicity or other characteristics of its members, because this characteristics is often not objectively definable, For example, most of the so-called Muslims, Serbs, and Croats of Yugoslavia have little to distinguish themselves from each other, other than that they use two different alphabets for their joint language and those who are religious belong to three different faiths...." "If we did not have identifications, that is, commitments, it would not matter so much that we have the quasi objective identities we have--I as an Anglo-Saxon-Celtic-Huguenot-Hillbilly-Texas-American, you as a Tutsi, Serb, or whatever...." "As nations are imagined communities, so too are individual identities in very large part only imagined. A distant colleague asserts her strong identification with the culture of the place where she was born. She left that place as a small child and has never returned. Her grandparents represent four different ethnic groups who were blended to create her parents and then her. None of them was from the culture with which my colleague identifies. I might as well have declared myself a hillbilly, although I left the hills as a child and never expect to return to live there again. The hills and their culture do not motivate me. In some sense, I have stronger objective grounds for identifying with the hills than my colleague has for identifying with the culture of her birth--my parents before me and theirs before them were also hillbillies. Yet, I have the thinnest of commitments to most of my objective identities--the strongest is probably to the life of trying to understand such issues and to teaching, which involve an identity that I acquired rather than inherited. I have so little commitment to my putative ethnic identities that I know anything about some of them only from casual hearsay, and I may have got some of them wrong. Many Serbs must share my lack of ethnic identification; many others are willing to kill for theirs. Objective identity tells almost none of the story--indeed, it may only tell the victim's story, as many groups have suffered horrendous abuse because they were objectively identified as worthy of suppression or extinction." Id. at 7-8. Can this really be a post-racial America unless it is a post-identity America? Does anyone really think we have entered a post-identity America? Listen to talk radio. Go to one of those "pride", or XYZ-day, parades. There the under sides of identity are very much in evidence. It takes a certain type of persons to step away from group identity. Persons of that type are rare.).
Heclo, Hugh, On Thinking Institutionally (Boulder & London: Paradigm Publishers, 2008) (This is a thoughtful essay. "The messages of the popular culture tell us one thing. The lessons from ordinary life--if we take time to think about them--tell us something else. And it turns out that the lessons from what we see in daily life have a commonsense wisdom that rings true. Striving to make yourself the celebrity star in your own life leaves you striving in an empty house of mirrors. Has the satisfaction proven to be just out of reach? Like the Great Gatsby, has the dream eluded us so far? 'That's no matter--tomorrow we will run faster, stretch out our arms farther . ... And one fine morning ...' " Id. at 9 (citing the last scene of F. Scott Fitzgerald, The Great Gatsby). "Accommodation to the perceived demands of the times can incrementally produce a redirection of institutional mission itself. The modern university [the modern law school within the modern university?] is a good example. In the past one hundred years, the university's basic educational work on behalf of the young adults has been enlarged to cover myriad research agendas, professional training, lucrative sports programs, combating racial and gender discrimination, government contracting, adult education, and on and on. At the same time a strong case can be made that in responding to the demands of business and student consumers, the university's basic mission--to prepare broadly educated citizens for life--has been redirected to training workers for the job market." Id. at 61 (italic added).).
Hedges, Chris, War is a Force That Gives Us Meaning (New York: PublicAffairs, 2002) ("I learned early on that war forms its own culture. The rush of battle is a potent and often lethal addiction, for war is a drug.... It is peddled by mythmakers--historians, war correspondents, filmmakers, novelists, and the state--all of whom endow it with qualities it often does possess: excitement, exoticism, power, chances to rise above our small stations in life, and a bizarre and fantastic universe that has a grotesque and dark beauty. It dominates culture, distorts memory, corrupts language, and infects everything around it, even humor, which becomes preoccupied with the grim perversities of smut and death. Fundamental questions about the meaning, or meaninglessness, of our place in the planet are laid bare when we watch those around us sink to the lowest depths. War exposes the capacity for evil that lurks not far below the surface within all of us. And this is why for many war is so hard to discuss once it is over." "The enduring attraction of war is this: Even with its destruction and carnage it can give us what we long for in life. It can give us purpose, meaning, a reason for living. Only when we are in the midst of conflict does the shallowness and vapidness of much of our lives become apparent. Trivia dominates our conversations and increasingly our airwaves. And war is an enticing elixir. It gives us resolve, a cause. It allows us to be noble. And those who have the least meaning in their lives, the impoverished refugees in Gaza, the disenfranchised North African immigrants in France, even the legions of young who live in the splendid indolence and safety of the industrialized world, are all susceptible to war's appeal." Id. at 3-4.).
Holmes, Richard, The Age of Wonder: How the Romantic Generation Discovered the Beauty and Terror of Science (New York: Pantheon, 2008) (See Christopher Benfey's review, 'Science and the Sublime,' in The NYT Book Review, July 19, 2009.).
Hulsman, John C., & A. Wess Mitchell, The Godfather Doctrine: A Foreign Policy Parable (Princeton & Oxford: Princeton U. Press, 2009) ("The age of American global dominance is drawing to a rapid and definitive close." Id. at 1.).
Husak, Douglas, Overcriminalization: The Limits of the Criminal Law (Oxford & New York: Oxford U. Press, 2008) (This is a thoughtful book and a worthwhile read for all law students, especially those future assistant district attorneys who are so confident that they are on the side of right, truth, and justice. “What is worrisome about delegating so much authority to prosecutors? Surely the objection cannot be that prosecutors fail to use their power to punish even more individuals than are sentenced at the present time. From the perspective of a legal philosopher, the answer is simple. Even when exercised wisely, this discretionary power, unchecked and unbalanced by other branches of government, is incompatible with the rule of law. This deterioration in the rule of law produces injustices. Because real power in our criminal justice system is not exercised in conformity with any principles that commentators have been able to formulate, no one is able to answer the question that legal realists like Oliver Wendell Holmes identified as fundamental to understanding what the law is. According to Holmes, the law consists in ‘prophecies of what the courts will do in fact, and nothing more pretentious.’ Without endorsing the whole school of jurisprudence Holmes sought to defend, he clearly articulated the central concern of laypersons who make inquiries about the law. Holmes recognized that experts who profess to know the law should be able to make a fairly accurate ‘prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court.’ But these predictions become notoriously unreliable in a system in which real power, and the decisions that govern the fate of individuals, is wielded with so much discretion.” Id. at 27 (citations omitted). “Thus I take for granted that those who teach and theorize about the criminal law would be unable to answer the simple and straightforward questions I have borrowed from Holmes. If knowledge of the criminal law consists in the ability to make reliable forecasts about what conduct will be punished, it follows that no one knows the law. Experts in the criminal law cannot make accurate predictions about potential offenders because the fate of such persons is not a function of the law at all. The real criminal law, as Holmes would construe it, is formulated by police and prosecutors.” Id. at 31.)
Kirn, Walter, Lost in the Meritocracy: The Undereducation of an Overachiever (New York: Doubleday, 2009) ("Percentile is destiny in America." Id. at 5. From the jacket cover: "Lost in the Meritocracy reckons up the costs of a system where the point is simply to keep accumulating points and never look back--or within. It's a remarkable book that suggests the first step toward intellectual fulfillment is getting off the treadmill that is the American meritocracy.").
Lincoln, Abraham., Lincoln on Race and Slavery edited and introduced by Henry Louis Gates, Jr., coedited by Donald Yacovone (Princeton & Oxford: Princeton U. Press, 2009).
Markovits, Daniel, A Modern Legal Ethics: Adversary Advocacy in a Democratic Age (Princeton & Oxford: Princeton U. Press, 2008) (This is a worthwhile read for law students and young lawyers. From my perspective, however, it is also a sad and disheartening read. Why? Though it certainly was not the intent of Professor Markovits for the readers to draw this conclusion, in the final analysis one is seemingly compelled to acknowledge that being a lawyer is pretty much incompatible with living a truly moral life. Yes, to be effective lawyers, lawyers must lie, etc. It would be too much to expect for these capacity and willingness to lie as a lawyer (what Markovits calls “the lawyerly vices”) to not migrant and inflect the nonlawyer aspects and areas of the lawyers’ lives. Lawyers may be able to compartmentalize their lives in many ways (e.g., be a bulldog lawyer, yet be a warm and affectionate spouse or parent). Yet, I doubt that many lawyers are so good at compartmentalizing that the capacity to lie, etc., as lawyers will not increase their tendency to lie, etc., elsewhere (e.g., lie to their spouses and children). One might refer to this tendency as 'lawyerly-vice drift'. Anyone who has ever practiced law for more than a few years knows first-hand how difficult, if not impossible, it is to stop being a lawyer (or, stop thinking like a lawyers) when engaged in nonlaw activity. “Just as social roles give their occupants access to forms of first-personal moral life from which others are excluded, so also do roles exclude their occupants from the more ordinary forms of first-personal moral life that they displace.” Id. at 251.).
McGlone, Robert E., John Brown’s War Against Slavery (Cambridge: Cambridge U. Press, 2009)
Mehlman, Maxwell J., The Price of Perfection: Individualism and Society in the Era of Biomedical Enhancement (Baltimore: Johns Hopkins U. Press, 2009) (In reading this book I had thoughts of a different meaning of 'the perfect is the enemy of the good'. "Thanks to biomedical enhancement, in six months, you can be transformed. Your eyesight can become 20/5, so that you can see something from 20 feet away as clearly as a person with normal vision sees it at 5 feet. You can increase your muscle mass by 40 percent; improve your cognitive function so that you can remember better, solve harder problems, and cope better with emergencies; elevate your mood; sustain your erection; and surgically reshape your body so completely that even close friends will have trouble recognizing you." Id. at 1. "[T]he distribution of favorable genes is random only to a limited degree. As we shall see, prize children can be bred in much the same way as prize cattle, and new reproductive technologies like sperm and egg donation and preimplantation genetic diagnosis are increasingly giving parents the ability to select offspring with favorable characteristics. Talent, in short, is becoming less and less 'natural.' As genetic science advances, it may well give rise to genetic manipulations that actively design a child's genetic endowment. At that point, natural talent will all but have disappeared." Id. at 70-71.).
Raz, Joseph, Between Authority and Interpretation (Oxford & New York: Oxford U. Press, 2009).
Schweik, Susan M., The Ugly Laws: Disability in Public (New York & London: NYU Press, 2009) (This book is part of the NYU Press's The History of Disability series. The shortcomings of this flawed and disappointing book are, I think, captured in the book's "Conclusion". "This book has told the story of a petty ordinance, barely enforced, small-minded, and obscure. I have aimed to show how large and how ongoing the implications of that story are. The law, remembered powerfully by one social movement alone as a legend and a lesson about disability, turns out to be about much more: about class antagonism, the distribution of wealth, and the routine suppression of resistance; about authenticity and masquerade; about how distinctions between genders and race and between Americans and others have been sorted out by Americans (and others); about bodily vulnerability and animality; about political action." Id. at 289-290. If The Ugly Laws is about a petty, barely enforced, small-minded and obscure ordinance, why should the readers find a book-length discussion of interest? Then, we are informed that The Ugly Laws is about almost everything: class, distribution of wealth, suppression, resistance, authenticity, masquerade, race, gender, Americans and foreigner, and on and on. Are ugly laws the best vantage point from which to view those other things? Or does so trying make ugly laws seem relatively trivial to those not already involved in the cause? Often times, less is more. In short, The Ugly Laws is an insider’s book for insiders. Fine. For non-insider, however, the treatment of the subject seems small, forced, whiney and, as a consequence, unappealing and unconvincing. This is unfortunate, as the broad subject of The Ugly Laws is a worthy subject, a subject waiting for legal and/or economic historians to tackle.)
Thompson, Mark, The White War: Life and Death on the Italian Front 1915-1919 (New York: Basic Books, 2008).
Tuck, Richard, Free Riding (Cambridge & London: Harvard U. Press, 2008).
Walbert, Kate, A Short History of Women: A Novel (New York & London: Scribner, 2009) ("'I am just trying to Do something,' Dorothy says, though Caroline is busy looking for dinner inspiration, for anything other than pasta. 'You don't care to understand. It's like everything. Conversation, for example, is now just approximations of opinions, etcetera, etcetera. I'm just trying to be real when everything is an approximation.'" Id. at 45. See Leah Hager Cohen's review, 'Feminine Mystique,' in The NYT Book Review, June 14, 2009.).
Wallace, David Foster, Consider the Lobster and Other Essays (Boston & New York: Little, Brown, 2006).
Wilson, Mark, Wandering Significance: An Essay on Conceptual Behavior (Oxford & New York: Clarendon Press/Oxford U. Press, 2006) ("Teenage Victory. Returning to our main themes, in our teenager's thinking we plainly witness the reentry of the "great ideas" worship discussed in connection with the Darwin critics of 2,ii: it is only the pure grasp of important concepts that matters, not the fussy details of how they are applied in concrete circumstances. If we are honest with ourselves, we should recognize the insidious magnetism of this conceit. Most of us would like to know everything there is to know, but, as this state is plainly unattainable, we cultivate rationales for skimming off the essential cream of a subject, leaving the more objectionable aspects of toil to the little fellow. In this fashion, we fall into a form of intellectual self-regard that generally carries foolishness and error in its wake: the attitudes of those who know little of substance but fancy themselves to be great judges of intellectual capital when it is presented to them ("I can recognize a good idea when I see it" is the characteristic mantra of the self-important). Scions of wealth who ascend to great offices through family ties commonly develop arrogancies of this ilk: they persuade themselves that they enjoy some distinguished "intuitive insight" that guides their decisions faultlessly onward, much to the chagrin of the better informed underlings forced to endure such whimsies. Through his pulp fiction philosophizing, our ward has come to cherish unmoored conceptual attainment of exactly this undesirable type." Id. at 509.).
Wimsatt, William C., Re-Engineering Philosophy for Limited Beings: Piecewise Approximations to Reality (Cambridge & London: Harvard U. Press, 2007).
