September 30, 2009


Atwood, Margaret, The Year of the Flood: A Novel (New York: Nan A. Talese/Doubleday, 2009) ("What is it about our own Species that leaves us so vulnerable to the impulse to violence? Why are we so addicted to the shedding of blood? Whenever we are tempted to become puffed up, and to see ourselves as superior to all other Animals, we should reflect on our own brutal history." Id. at 312. "Is that what pigs want her to do? Go outside her defensive walls, into the open, so they can jump her, knock her down, then rip her open? Have a pig-style outdoor picnic. A pig-out. She has a fair idea of what that would look like. The Gardeners weren't squeamish about describing the eating habits of God's various Creatures: to flinch at these would be hypocritical. No one comes into the world clutching a knife and fork and a frying pan, Zeb was fond of saying. Or a table napkin. And if we eat pigs, why shouldn't pigs eat us? If they find us lying around." Id. at 320.).

Kidder, Tracy, Mountains Beyond Mountains (New York: Random House, 2003) (“The quest of Dr. Paul Farmer, a man who would cure the world”).

Kristof, Nicholas D., & Sheryl WuDunn, Half the Sky: Turning Oppression into Opportunity for Women Worldwide (New York: Knopf, 2009) (See Irshad Manji, “Changed Lives”, in The NYT Sunday Book Review, September 20, 2009. “’Half the Sky’ tackles atrocities and indignities from sex trafficking to maternal mortality, from obstetric fistulas to acid attacks, and absorbing the fusillade of horrors can feel like an assault of its own. But the poignant portraits of survivors humanize the issues, divulging facts that moral outrage might otherwise eclipse.” Id.).

Mayer-Schonberger, Viktor, Delete: The Virtue of Forgetting in the Digital Age (Princeton & Oxford: Princeton U. Press, 2009) (“Will our children be outspoken in online equivalents of school newspapers if they fear their blunt words might hurt their future careers? Will we protest against corporate greed or environmental destruction if we worry that these corporations may in some distant future refuse doing business with us? In democracies, individuals are both citizens and consumers. They engage in economic transactions, and take sides on public issues. At times, they may find themselves opposing what their transaction partners advocate. In the analog world, if a person wasn’t particularly outspoken, one could easily do both: engage and oppose a transactional partner. Take automobile companies. One can easily buy a car and still advocate for higher emission standards opposed by car manufacturers. Suppose transactional partners knew our views much more precisely. Would they still transact with us, offer us the best price, perhaps even employ us? Just the thought that they might not, may constrain our willingness to act as consumers, let alone as citizens.” Id. at 111. READ THIS BOOK! ).

Sandel, Michael J., Justice: What’s the Right Thing to Do? (New York: Farrar, Straus & Giroux, 2009) (“When moral reflection turns political, when it asks what laws should govern our collective life, it needs some engagement with the tumult of the city, with the arguments and incidents that roil the public mind. Debates over bailouts and price gouging, income inequality and affirmative action, military service and same-sex marriage, are the stuff of political philosophy. They prompt us to articulate and justify our moral and political convictions, not only among family and friends but also in the demanding company of our fellow citizens.” Id. at 29. A worthwhile introductory read for anyone tired of the void of critical thinking in much of American political discourse. Also, see the review"Rights and Wrongs: First Principles of Justice," in The Economist, September 26, 2009.)

Twenge, Jean M. & W. Keith Campbell, The Narcissism Epidemic: Living in the Age of Entitlement (New York: The Free Press, 2009) (“Narcissists are also not popular bosses. Employees rate narcissistic managers as average in problem-solving skills but below average in interpersonal skills and integrity, two qualities considered very important for management. Another study found that while narcissists saw themselves as excelling at leadership, their peers thought they were below average.” Id. at 45. “The findings presented in The Millionaire Next Door are counterintuitive. Americans see people with fancy cars and clothes and assume they must be rich. In reality, it is often safer to assume that they are in debt.” The credit crunch that paralyzed the economy in the late 2000s is, at base, the conflict between the pleasure principle—it looks great and get what it wants, but it hurts other people and even the self in the long run. In contrast, the reality principle isn’t flashy or self-promoting, but it does lead to actual wealth. At least until 2008, most Americans were living on the narcissistic pleasure principle. Easier and easier credit allowed them to live out grandiose, materialistic fantasies—until the bill came due.” Id. at 137-138. “Cheating is also rampant, and growing, among students. In 2002, 74% of high school students admitted to cheating, up from 61% in 1992. In 1969, only 34% of high school students admitted to cheating, less than half of the 2002 number. A large 2008 survey of teens found that two-thirds admitted to cheating and nearly one-third had stolen something from a store. Nevertheless, 93% said they were satisfied with their personal ethics—a classically narcissistic disconnect between reality and self-concept. [] A 2004 study of 25,000 high school students found that 67% of the boys and 52% of girls agreed that ‘in the real world, successful people do what they have to do to win, even if others consider it cheating.’” Id. at 206.).

September 27, 2009


Hubbard, Douglas W., The Failure of Risk Management: Why It’s Broken and How to Fix It (Hoboken, N.J.: John Wiley & Sons, 2009) (“The answer to the second question (whether anyone would know that the risk management system has failed) is also no; most managers would not know what they need to look for to evaluate a risk management method and, more likely than not, can be fooled by a kind of “placebo effect” and groupthink about the method. Even under the best circumstances, where the effectiveness of the risk management method itself was tracked closely and measured objectively, adequate evidence may not be available for some time. A more typical circumstance, however, is that the risk management method itself has no performance measures at all, even in the most diligent, metrics-oriented organizations. This widespread inability to make the sometimes-subtle differentiation between methods that work and methods that don’t work means that ineffectual methods are likely to spread. Ineffectual methods may even be touted as “best practices” and, like a dangerous virus with a long incubation period, are passed from company to company with no early indicators of ill effects until it’s too late.” Id. at 4. I often mention to students, taking my commercial and corporate law courses, that lawyers are involved in a form of risk management. The contracts drafted, the compliance procedures recommended, the check lists used, et., are all about doing, ex ante, the best they can to manage certain legal risks for their clients. That as transactional lawyers they not only seeking to increase the likelihood of good things happening for their clients and decreasing the likelihood that bad things happening. They are trying to make sure that, if the bad things happen, they will not be a complete catastrophe for the client. That even the bad is not worse, let alone the worst. For instance, how much, and what sort of, due diligence is due, not to avoid lawyer malpractice liability but to adequately management the client’s risks. In short, how do lawyers identify risk, manage risk, and, as is the subject of this book, assess their methods for identifying, assessing, and managing risks? They too may be taken in by a placebo effect.) .

Hubbard, Douglas W., How To Measure Anything: Finding the Value of Intangibles in Business (Hoboken, N.J.: John Wiley & Sons, 2007) (My coming to read this book (as well as the book above) had three unrelated sources. First, while sitting in a meeting one of the participants stated that he is ‘a good judge of character.’ Placing aside the self-congratulatory aspects of the statement, I wondered how the person knew, or could substantiate, what he claimed to know about himself. (Or, for that matter, if someone had challenged him on that point, how would they have backed up their challenge.) Perhaps his self-assessment is correct, perhaps it is wrong, and perhaps it is simply meaningless. There are studies reporting that 65% of us think we are of above-average intelligence, the same percentage thinks it of better-than-average looks. I would not be surprised in that same over optimism is found in our assessment of our ability to judge character. The larger issue, however, concerned the fact that some people might defer to this person’s judgment about another person’s character without first establishing (measuring) independently whether the former is (or is not) a good judge of character. That is, other people would be making decisions based on a factor, one’s person’s judgment of another person’s character, without having measured whether the former is a good judge of character or not. Where it may be reasonable to defer to someone judgment when we think that person is a better informed decision maker then we are, we still have a responsible to ascertain whether that person is worthy of such deference in the first place. We cannot just take the person’s word for it that he is a good judge of character. Second, I had the opportunity to listen to a woman who earns her living measuring opinions and ideas (e.g., doing market research). For some reason I came away with the fear that she probably knows/suspects that much of what legal academics (and lawyers) assert as being factually true about the world is not true, or at least not grounded in strong empirical evidence. I was humbled. And, third, I had to prepare to teach my course in Analytical Methods (this is a course developed by Professor Howell Jackson and other at The Harvard Law School), a course which includes components on decision theory, game theory, and statistics. More important, it is a course that underscores the need for lawyers to know more than the law, and to have analytical skills beyond that of mere legal analysis. Reading this book and applying its lessons is useful in better articulating why law students need to be better informed of matters outside the law (e.g., how would they actually ascertain whether law A is more efficient, or less costly, than an alternative law B or no law at all), and for me to better engage in more informed decision-making. Anyway, this is a worthwhile, and nontechnical, read. “Anything you need to quantify can be measured in some way that is superior to not measuring it at all.” Gilb’s Law).

September 23, 2009


Nussbaum, Martha C., Frontiers of Justice: Disability, Nationality, Species Membership (The Tanner Lectures on Human Values) (Cambridge London: Belknap/Harvard U. Press, 2006) (Four comments: (1) This is an interesting and provocative read. Yet, (2) I am unconvinced by ‘capabilities-approach’ arguments. (3), though I am presently not a dog owner, I know that were my dog to have a serious disability, including simply getting too old, I would not hesitate to put my dog down. And, (4) it is my hope that I have enough sense and the ability to put myself down should I ever find myself in a similar situation. Sometimes the proper way to frame the choice is not as between life with or without dignity, but as between a life of dependency and death with dignity. When the time comes, PLEASE LET ME GO.).

September 22, 2009


Nussbaum, Martha C., Hiding from Humanity: Disgust, Shame, and the Law (Princeton & Oxford: Princeton U. Press, 2004) “[F}ocus on a deeper conceptual issue. This issue is, what is the relevant ’community’? The Achilles heel of all communitarian arguments is their disregard of this all-important question. No group is fully homogeneous. Even in the case of small religious or ethnic communities that are renowned for their homogeneity of values, that renown is typically based on a false and romanticized notion of the group in question, as Fred Kniss has eloquently shown in his important study of American Mennonite communities. All communities contain differences about norms and values, and also differences of power. Frequently these two types of difference are connected: what gets to parade as the ‘values’ of the ‘group’ are, frequently, the values of the group’s most dominant members. Thus, for example, most of what we think we know about the ‘values’ of most ethnic and religious groups in history really represents the views of male members of those groups, rather than the views of women, which may be impossible to recover from the silence of history. Other dissident and relatively powerless groups—the young, the elderly, those who hold unpopular religious , political, or moral views--may not win recognition as part of what the ‘group’ stands for. Differences of power also affect who is permitted to count as a group member and who is not.. Groups frequently define their boundaries in ways that stigmatize and exclude; thus , rather than acknowledging the presence of a dissident or minority subgroup, they may simply refuse to recognize these people as members of their body at all.” Id. at 274-275 (citations omitted).).

Sterry, David Henry & R. J. Martin, Jr., eds., Hos, Hookers, Call Girls, and Rent Boys: Professional Writing on Life, Love, Money, and Sex (Brooklyn: Soft Skull Press, 2009) (See Toni Bentley, “Meet, Pay, Love,” NYT Book Review, Sunday, August 23, 2009.).

September 18, 2009


Gjelten, Tom, Bacardi and The Long Fight for Cuba: The Biography of a Cause (New York: Viking, 2008) (Interesting read. "Some exiles opposed contact with Cuba so rigidly as to suggest they had no sympathy for the position of ordinary Cubans who could not afford to take morally pure stands against the Castro regime. Was there something about living long and comfortably in the United States over time that had narrowed the exiles' thinking, making them less Cuban and more Americans? Jose Marti, writing from New York in 1881, considered whether the 'colossal nation' that was his adopted home contained 'ferocious and terrible' elements. 'Does the absence of the feminine spirit, source of artistic sensibility and complement to national identity, harden and corrupt the heart of this astonishing people?' he wondered." Id. at 365. That is a good question for all Americans to ask themselves, is it not?).

September 14, 2009


Keynes, John Maynard, The General Theory of Employment, Interest and Money (1936) (New York: Palgrave Macmillan, 1973, 2007 (From Paul Krugman's "Introduction to New Edition": "As an intellectual achievement, The General Theory ranks with only a handful of other works in economics--the tiny set of books that transformed our perception of the world, so that once people became aware of what those books had to say they saw everything differently. Adam Smith did that in The Wealth of Nation: suddenly the economy was not just a collection of people getting and spending, it was a self-regulating system in which each individual 'is led by an invisible hand to promote an end which was no part of his intention.' The General Theory is in the same league: suddenly the idea that mass unemployment is the result of inadequate demand, long a fringe heresy, became completely comprehensible, indeed obvious." "What makes The General Theory truly unique, however, is that it combined towering intellectual achievement with immediate practical relevance to a global economic crisis.... Until The General Theory, sensible people regarded mass unemployment as a problem with complex causes, and no easy solution other than the replacement of markets with government control. Keynes showed that the opposite was true: mass unemployment had a simple cause, inadequate demand, and an easy solution, expansionary fiscal policy." Id. at xxxvii.).

Meltzer, Allan H., Keynes’s Monetary Theory: A Different Interpretation (Cambridge: Cambridge U. Press, 1988) ("Keynes's basic beliefs have a large influence on the problems he considered and the way he addressed them. In the philosophy that he learned from G. E. Moore and shared with many of his closest associates, the highest good came from states of mind--contemplation, beauty, truth, and love. Pecuniary motives were at a much lower level and the pursuit of wealth or money unattractive. This broad view of the purposes of life was joined by two others. One was the values learned as a child--the so-called presuppositions of Harvey Road--under which persuasion by an intellectual elite was to be the means of improving mankind. The duty of the intellectual elite, in this view, was to lead public opinion and shape society's rules by discussion within the elite of civil servants, intellectuals, and molder of opinion and by changing public opinion. The other influence was once again Moore, who taught that there were no fixed definitions of food and evil. "Good" depended on the circumstance in which an issue was to be decided." Id. at 59.).

September 12, 2009


The most recent The New York Review of Books arrived in yesterday's late afternoon mail. This morning, over coffee, I did my usual initial, and slow, survey of its pages just to take in its landscape. That landscape, of course, includes announcements (advertisements really) from the various publishers (Farrar, Straus & Giroux; the Knopf Doubleday Publishing Group--i.e., Knopf, Doubleday, Pantheon, Schocken, Vintage, Anchor, Nan. A. Talese, and Everyman's Library--; The Library of America; Cambridge University Press; Columbia University Press, Duke University Press; The Johns Hopkins University Press, The University of Chicago Press; Fordham University Press; Nebraska University Press; Princeton University Press; Stanford University Press; etc., just to name a few; plus the three-page Independent Press listing) of recent publications. And, because this particular issue is the Fall Book issue, the landscape is quite rich and textured even for the NYRB. Yes, I did smuggly engage in a few moments of self-congratulation as to the books I had read already. I did make mental notes of the books I had not yet read but owned and waiting to be read, as well as of the titles ordered but yet to arrive. Then . . . I stepped back and took in the larger landscape seeing all the the books not read by me, not owned by me, or not on yet even ordered for purchase by me. And I was--and still am-- overwhelmed. Overwhelmed not by the seemingly infinite number of books published which will go unread by me, but by the vast number books I would want, should want, and ought to want read if only I had the time. Yet, given the vastness of the landscape of the worthwhile printed word, there is not sufficient time to make a meaningul excursion into--let alone across the landscape. I am reminded of how poorly read I am. Reminded of the narrow limits of my education. I am reminded of Socrates. "I know nothing except the fact of my ignorance." And I reminded of the fact of my own ignorance.

September 7, 2009


Jones, Jacqueline, Labor of Love, Labor of Sorrow: Black Women, Work, and the Family from Slavery to the Present (New York: Basic Books, 1985).

Rodgers, Daniel T., The Work Ethic in Industrial America 1850-1920 (Chicago & London: U. of Chicago Press, 1974, 1978) ("'There are many ways to accommodate change,' John William Ward has written. 'A favorite one is man's happy ability to keep talking one way while acting another.' It is an unimpeachable historical observation and more than a reflection on human foolishness. The groves of thought and language are deep ones, particularly at the levels of morals, and even in the midst of change conscious values are not easily wrenched from the familiar ruts.... But it is also true that change intensifies fixities as men struggle to reaffirm the threatened. Not only inertia is at work in such instances, but the mutation of doubt into conventions of faith--the more versatile, the more reassuring, and in some ways the more potent in their ideal remove from the confusions of everyday life. American history has had its ample share of examples. From the rhetoric of republican simplicity and frugality by which the Jacksonians salved their practical experiment in restless speculation, to the doctrineless religious revival of the faith-shaken Eisenhower years, to the hollow versatility of the term 'peace' in a war-torn nation, stress has repeatedly hardened anxiety into ideals, generated words to cling to even as one strode off into the forbidden and the unknown." Id. at 241.).

September 5, 2009


Alter, Robert, The Five Books of Moses: A Translation with Commentary (New York: Norton, 2004) (I don't read the bible as a 'religious' text, but rather as poetry. I am reminded of a comment of John Fowles on point. See John Fowles, The Journals:, Volume 1 edited by Charles Drazin (London: Jonathan Cape, 2003). "The bible, I chanced to start reading some of the last Old Testament prophets the other day. A revelation of poetry; superb language and imagery. It is a mistake to imagine that the Bible is the same in all languages. The English translation is a work of great genius; it should be to us what Homer was to the Greeks." Id . at 140).

Armstrong, Karen, The Bible: A Biography (Books That Changed the World) (New York: Atlantic Monthly Press, 2007) (“Because scripture has become such an explosive issue, it is important to be clear what it is and what it is not. This biography of the Bible provides some insight into this religious phenomenon. It is, for example, crucial to note that an exclusively literal interpretation of the Bible is a recent development. Until the nineteenth century, very few people imagined that the first chapter of Genesis was a factual account of the origins of life. For centuries, Jews and Christians relished highly allegorical and inventive exegesis, insisting that a wholly literal reading of the Bible was neither possible nor desirable. They have rewritten biblical history, replaced Bible stories with new myths, and interpreted the first chapter of Genesis in surprisingly different ways.” Id. at 3.).

Balakian, Grigoris, Armenian Golgotha: A Memoir of the Armenian Genocide, 1915-1918 translated from the Armenian by Peter Balakian with Aris Sevag (New York: Knopf, 2009).

Cohen, G.A., Why Not Socialism? (Princeton & Oxford: Princeton U. Press, 2009) (“Because motivation in market exchange consists largely of greed and fear, a person typically does not care fundamentally, within market interaction, about how well or badly anyone other than herself fares. You cooperate with other people not because you believe that cooperating with other people is a good thing in itself, not because you want yourself and the other person to flourish, but because you seek to gain and you know that you can do so only if you cooperate with others. In every type of society people perforce provision one another: a society is a network of mutual provision. But, in market society, that mutuality is only a by-product of an unmutual and fundamentally nonreciprocating attitude.” Id. at 45 (italics in original). Perhaps the ugliness of the healthcare debates, especially the part attacking the poorly understood “public option”, simply reflects that we Americans are not much of a society (or a society in decline) due to our lack of network of mutual provision.).

Flint, Anthony, Wrestling With Moses: How Jane Jacobs Took On New York’s Master Builder and Transformed the American City (New York: Random House, 2009) (See Dwight Garner's review, "When David Fought Goliath in Washington Square Park," NYT August 6, 2009.).

McCann, Colum, Let the Great World Spin: A Novel (New York: Random House, 2009) (It happened five or six times in a row. The turn of the door handle. The ping of stilettos on the bare floorboards. A different hooker each time. One even leaned down and let her long thin breasts hang in my face. ‘College boy,’ she said like an offer. I shook my head and she said curtly” ‘I thought so.’ She turned at the door and smiled. ‘There’ll be lawyers in heaven before you see somethin’ so good again.’ “ Id. at 25.).

Nehring, Cristina, The Vindication of Love: Reclaiming Romance for the Twenty-First Century (New York: Harper, 2009) (“Love at the beginning of the twenty-first century has been defused and discredited. Feminism is partly to blame, but only partly. We inhabit a world in which every aspect of romance from meeting to mating has been streamlined, safety-checked, and emptied of spiritual consequence. The result is that we imagine we live in an erotic culture of unprecedented opportunity when, in fact, we live in an erotic culture that is almost unendurably bland.” Id. at 7.).