October 31, 2009


Suk, Jeanie, At Home in the Law: How the Domestic Violence Revolution is transforming Privacy (New Haven & London: Yale U. Press, 2009) (“Legal doctrine, practice, and discourse are coalescing around the notion of the home as a place of subordination that portends abuse. This developing common sense of legal actors increasingly constructs the way the law conceives of intimacy as well as the relationship between the state and private space, in surprising ways. Legal reasoning increasingly reflects the hardening and generalizing of the home-as-violence idea, with some unexpected consequences. Legal practices make public and private more legally similar spaces than they have been in the past, even as the discourse of home abounds.” “I present interpretations of the values and ideals that are at work when the law deploys the concept of home. I demonstrate the remarkable practical (not just theoretical) advance of feminist critique in the law, and I do not shrink from identifying its real-world consequences. These include not only the protection of some women but also in substantial reductions in the autonomy of women and men vis-à-vis the state—particularly in racial and economic communities already subject to disproportionate state control. The time is ripe to question seriously whether these developments advance women’s interests. While most will certainly agree with reforms that today aim to ensure that criminal punishment of violence does not stop at the door of the home, perhaps upon a closer examination many will also find that persistent logical (though not inexorable) extensions of ideas motivating those reforms have begun to create a legal reality that seems in some ways untenable and incompatible with valuable autonomy, privacy, and even security.” Id. at 6-7. There is little real meat in this short book, though it provides the emerging left-of-center perspective and synthesis of the case law to support its thesis. It is vulnerable to the libertarian critique: ‘What did you expect? If you give the state more power by extending its reach into the home, did you really think that reach would be exercised in a manner without substantial costs to women (and men) of their autonomy? Even a home, a women who gives up a little freedom for greater domestic security may well end up with neither. Which is not to say that women were better off before than they are now.’).

October 30, 2009


Reding, Nick, Methland: The Death and Life of an American Small Town (New York: Bloomsbury, 2009) (“In truth, all drugs epidemics are only in part about the drugs. Meth is indeed uniquely suited to Middle America, through this is only tangentially related to the idea that it can be made in the sink. The rise of the meth epidemic was built largely on economic policies, political decisions, and the recent development of American cultural history. Meth’s basic components lie equally in the action of government lobbyists, long-term trends in the agricultural and pharmaceutical industries, and the effects of globalization and free trade. Along the way meth charts the fears that people have and the vulnerabilities they feel, both as individuals and as communities. The truly singular aspect of meth’s attractiveness is that since it first wide-scale abuse—among soldiers during World War II—meth has been associated with hard work. For seventy years, the drug more commonly referred to as crank has been the choice of the American working class. It’s in this way more than any other that that the story of meth is the story of Oelwein, Iowa, along with that of Roland Jarvis and Tim Gilson and Jeremy Logan. It is also the story of the remarkable, even heroic lengths to which people and communities will go in order to fix themselves.” Id. at 16. “In another way, though, many of the towns of the rural United States are quite disconnected from the rest of the nation. Poverty rates are higher, fewer people have achieved secondary levels of education, and substance abuse is far more prevalent than in urban America. It’s worth noting that the reason your dinner moves an average of fifteen hundred miles to get from its source to your plate is because the source—or sources, really—is determined by companies like Tyson and Cargill and ConAgra based on where they can pay the cheapest labor costs. Barnett posits that when one piece is no longer part of the system—that is, when it is disengaged from the standard rules—everyone is vulnerable. Oelwein may look very different from Independence, but Oelwein’s problems nonetheless affects its neighbors. Oelwein’s vulnerabilities are Iowa’s vulnerabilities, and America’s.” Id. at 207-208. See Walter Kirn’s review, “Wasted Land,” NYT, Sunday, July 5, 2009.).

October 29, 2009


Becker, Gary S. & Richard A. Posner, Uncommon Sense: Economic Insights, From Marriage to Terrorism (Chicago & London: U. of Chicago Press, 2009) (When reading Gary Becker, and especially when reading Richard Posner, if one does not find oneself in the logical and intellectual contradiction of both nodding one's head in agreement while simultaneously shaking one's head in disagreement one has probably not carefully read neither Becker nor Posner. And therein lies the value of this collection of postings and comments from their joint blog: hearty food for thought, especially where they disagree between themselves, or agree in the conclusion but get there by quite different footpaths. An intelligent reader has no recourse but to unpack and questions their premises, think for him/herself and, thus, be transformed.).

October 28, 2009


Christakis, Nicholas & James H, Fowler, Connected: The Surprising Power of Our Social Networks and How They Shape Our Lives (NewYork & London: Little, Brown, 2009) (“We see our society as a meritocracy that rewards sound choices and creates opportunities for the well prepared. The radical individualist perspective is that we are masters of our destiny, and that by making changes in everything from what we eat to how we brush our teeth, we can improve our survival chances, our mental stability, or our reproductive prospects.” “But the picture is much more complicated. Our unavoidable embeddedness in social networks means that events occurring in other people—whether we know them or not—can ripple through the network and affect us. A key factor in determining our health is the health of others. We are affected not only by the health and behavior of our partners and friends but also by the health and behavior of hundreds or thousands of people in our extended social network.” Id. at 129-130. "Embedded in social networks and influenced by others to whom we are tied, we necessarily lose some of our individuality. Focusing on network connections lessens the importance of individuals in understanding the behavior of groups. In addition, networks influence many behaviors and outcomes that have moral overtones. If showing kindness and using drugs are contagious, does this mean that we should reshape our own social networks in favor of the benevolent and the abstemious? If we unconsciously copy the good deeds of others to whom we are connected. do we deserve credit for those deeds? And if we adopt the bad habits or evil thoughts of others to whom we are closely or even loosely tied, do we deserve blame? Do they? If social networks place constraints on the information and opinions we have, how free are we to make choices?" Id. at 305. This is a very interesting book, Yet, somehow, for some reason, I shall always admire that rare individual who tries to be his (or her) own person; who can live with people but who can, just as well, live without them. That is, I shall always admire out-of-network individuals. Freedom, autonomy, and individuality (as well as the idea of being responsible for who you are, what you think, and what you do) may be illusion (or delusions) only, but they are important and useful illusions (delusions). Without them, we are just gloried laboratory rodents.).

October 27, 2009


Gibson, James L. & Gregory A. Caldeira, Citizens, Courts, and Confirmation: Positivity Theory and the Judgments of the American People (Princeton & Oxford: Princeton U. Press, 2009) (“Various law professors proclaimed in an advertisement in the New York Times that the Supreme Court had sacrificed a significant portion of its institutional legitimacy through its ruling in Bush v. Gore. It is difficult to imagine how a set of circumstances could arise that would constitute a greater threat to the legitimacy of the Supreme Court than its (so-called self-inflicted) involvement in settling the presidential election in Florida and therefore for the nation.” “Yet things are not always as they seem. It turns out that the available evidence is that the Court’s involvement is the election did not damage its legitimacy. . . . Many academic understandings of the impact of Bush v. Gore seem to be considerably off the mark.” “How is it that the United States Supreme Court avoided any harmful consequences of the election imbroglio? [A] proffered . . . answer: the theory of positivity bias. According to this theory . . . anything that causes people to pay attention to the courts—even controversies—winds up reinforcing institutional legitimacy through exposure to the legitimizing symbols associated with law and courts. The theory suggests a bias in favor of developing positive feelings for the institution, even during conflicts. While there are many elements of this theory, its central prediction is that legal controversies tend to reinforce judicial legitimacy by teaching the lesson that courts are different from the other institutions of the American democracy, and are therefore worthy of respect.” “Does the theory of positivity bias apply to confirmation hearings? No one knows, and it is therefore the purpose of this research to test the theory in that context. . Id. at 3. I guess you will have to read the book to find out the results and conclusions drawn from the authors’ research.).

October 26, 2009


Levitt, Steven D., & Stephen J. Dubner, Superfreakonomics: Global Cooling, Patriotic Prostitutes and Why Suicide Bombers Should Buy Life Insurance (New York: Morrow, 2009) (“Most of the stories fall into one of two categories: things you always thought you knew but didn’t; and things you never knew you wanted to know but do.” Id. at 17. “People have long posited that violent TV shows lead to violent behavior, but that claim is not supported by data. We are making an entirely different argument here. Our claim is that children who grew up watching a lot of TV, even the most innocuous family-friendly shows [e.g., “Leave It To Beaver”], were more likely to engage in crime when they got older.” Id. at 102. “For every extra year a young person was exposed to TV in his first 15 years, we see a 4 percent increase in the number of property-crime arrests later in life and a 2 percent increase in violent-crime arrests. According to our analysis, the total impact of TV on crime in the 1960s was an increase of 50 percent in property crimes and a 25 percent in violent crimes.” Id. at 104.).

October 25, 2009


Gladwell, Malcolm, What the Dog Saw and Other Adventures (Boston: Little, Brown, 2009) (Let me draw your attention to several pieces in this collection which, I think, are of special interest to law type persons: “Blowing Up: How Nassim Taleb Turned the Inevitability of Disaster Into an Investment Strategy.” “John Rock’s Error: What the Inventor of the Birth Control Pill Didn’t Know About Women’s Health.” “Open Secrets: Enron, Intelligence, and the Perils of Too Much Information.” “Million-Dollar Murray: Why Problems Like Homelessness May be Easier to Solve Than to Manage.” “Something Borrowed: Should A Charge of Plagiarism Ruin Your Life?” “Connecting the Dots” The Paradox of Intelligence Reform.” “Troublemakers: What Pit Bulls Can Teach Us About Crime.”).

October 24, 2009


Parini, Jay, Why Poetry Matters (New Haven & London: Yale U. Press, 2008 ("I will argue in these pages that poetry matters, in part, because of voice." "It also matters because metaphor, one of the essential forms of thought. Robert Frost suggested (with his usual sly wit) that a person uneducated in the operations of metaphor was not safe in the world, should not even be let out of doors. Poetry, for me, is important because it refines our ability to make comparisons, to understand how far one can ride a metaphor before it breaks down. There are all sorts of implications for this, some of them harshly political, as when politicians actually plunge us into illegal wars because of dangerously inept metaphors, which reflect foolish or ill-considered thinking. I quite agree with Frost that poetry offers a solid form of education, giving its readers access to metaphorical thought, its operations and dynamics." Id. at xi. I cannot help but reflect on how so much of good legal reasoning involves (as, for example, evidenced in the judicial opinions and other legal writings of the American great jurists: Oliver Wendell Holmes, Louis Brandies, Benjamin Cardozo, Learned Hand) the use of metaphor. I suspect that many paradigm shifts in legal thought are grounded on the able use of cogent metaphor. If metaphor is one of the essential forms of thought, cannot it not be an essential form of legal thought? And, if poetry through metaphor refines our ability to make comparison, then perhaps would-be lawyers should read good poetry. Sadly, in this age of increasingly instrumental and experiential legal education, it is doubtful that the reading of poetry will be considered part of that latest false god, "Best Practices.").

October 23, 2009


Alexander, Caroline, The War that Killed Achilles: The True Story of Homer’s Iliad and the Trojan War (New York: Viking, 2009) ("Homeric scholarship goes back to the dawn of literary scholarship, to the work of Theogenes of Rhegium, around 525 B.C., and in most Western--and some non-Western--universities continues to this day. . . ." "This book is not about many of the things that have occupied this scholarship. although inevitably it will touch on the same themes. This book is not an examination of the transmission of the Homeric text or of what Homer has meant to every passing age. It is not an analysis of the linguistic background of the epic, and it is not about the oral tradition behind the poem; it is not about formulaic expressions or whether "Homer" should refer to an individual or a tradition. It is not about Bronze Age Greece nor the historicity of the Trojan War. This book is about what the Iliad is about; this book is about what the Iliad says of war." Id. at xvii. "'Thus, drawing on its long tradition, the Iliad used conventional epic events and heroes to challenge the heroic view of war. Is a warrior ever justified in challenging his commander? Must he sacrifice his life for someone else's cause? How is a catastrophic war ever allowed to start--and why, if all parties wish it over, can it not be ended? Giving his life for his country, does a man betray his family? Do the gods countenance war's slaughter? Is a warrior's death compensated by his glory? These are the questions that pervade the Iliad. These are also the questions that pervade actual war. And in life, as in epic, no one has answered them better than Homer." Id. at 14-15.)

October 22, 2009


Doxiadis, Apostolos & Christos H. Papadimitriou, Logicomix: An Epic Search for Truth with art by Alecos Papadatos & Annie Di Donna (New York: Bloomsbury, 2009).

Sunstein, Cass R., On Rumors: How Falsehoods Spread, Why We Believe Them, What Can Be Done (New York: Farrar, Straus & Giroux, 2009) (“This small book has two goals. The first is to answer these questions: Why do ordinary human beings accept rumors, even false, destructive, and bizarre ones? Why do some groups, and even nations, accept rumors that other groups and nations deem preposterous? The second is to answer this question: What can we do to protect ourselves against the harmful effects of false rumors? As we shall see, part of the answer lies in recognizing that a “chilling effect” on those who would spread destructive falsehoods can be an excellent idea.” Id. at 4-5.).

October 21, 2009


Hirsch, E.D., Jr., The Making of Americans: Democracy and Our Schools (New Haven & London: Yale U. Press, 2009) ("The intellectual and moral error of some members of the intellectual elite has been to equate American patriotism with narrow nationalism and militaristic flag-waving. They have a point. When the Nazis came to power in Germany in the 1930s, there was a flowering of German flags and a sharp rise of government-induced patriotic fervor. But the special character of that kind of nationalism has little to do with the more accommodating American patriotism. [????] The best writer on this subject is Benedict Anderson, who sees this hostile form of nationalist flag-waving as tribalism--always directed against some other tribe: the Jews, the Blacks, the Muslims, the Hispanics, and so on. Anderson connects this whipped-up nationalism with racism, an attempt to resist or overcome some other group. The language is that of "contamination" or "infiltration." Real patriotism, he observes, involves the willingness to sacrifice and even die for the patria and defines itself not by its difference from or superiority to some "other" but rather by its unconditional loyalty. . . ." "The true American form of patriotism [????] is commodious rather than tribal. It is inherently cosmopolitan--the first such patriotism in the history of the world and, in that respect, at its best, a beacon. But America also has content; it is not an unrooted polyglot cosmopolitansim. It accommodates all groups but at the same time, through commonalities and principles learned in childhood, fills the human need for group attachment--the noblest such political experiment yet attempt. The proper aimm of American schools is not jingoism but loyalty to a truly glorious ideal. As Anderson observes, such loyalty to an imagined community can be accomplished only through a common language. Commonality of language is the indispensable vehicle of loyalty and solidarity as well as general competence. Language, like it the civic ideals of freedom, equality, and toleration, is thus at the cent of the core curriculum." Id. at 92. In reading both the next passages, think about legal education. "We have moved to the proposition that, in order to enable communication in the public sphere, commonality of language requires commonality of knowledge. Now we need to take the next logical step. Commonality of knowledge requires commonality in schooling. The schools need to impart not only the forms of the standard language but also the unstated knowledge students need in order to understand what is being said in the classroom, in newspapers, and elsewhere in the public sphere. This unstated knowledge is extensive, and it needs to be imparted gradually and securely over the years of schooling. Indeed, the vastness of this knowledge is the chief reason schooling takes many years. If reading and writing were simply-how- skills, three or four years would suffice. You could graduate after fourth grade. But thirteen years are barely enough to gain the need general knowledge for mature literacy in the Internet age, and even that many years . . . have not sufficed in the United States." Id. at 115. As member of a law faculty, I often wonder how much common knowledge about law student have on the day of graduation. I suspect they have very little. If they are lucky, students will have sufficient knowledge to pass the bar and get hired. But passing the bar and getting a law job do not require much knowledge of the law, and certainly requires a bare commonality in what little law is known. As many law school get on the latest schooling craze, i.e., experiential learning, the students' knowledge of law 's content and substance will be even less and commonality in knowledge will be pretty much nonexistent. Say it isn't so Joe. Joe? Joe? Are you even listening, Joe? Are you still there, Joe?).

October 20, 2009


Ehrenreich, Barbara, Right-Sided: How the Relentless Promotion of Positive Thinking Has Undermined America (New York: Metropolitan Books, 2009) (“Even the academy, which one might think would be a safe haven for cranky misanthropes, is seeking the inroads of positive thinking. In early 2007, the administration of Southern Illinois University at Carbondale, alarmed by a marketing study finding the faculty ‘prideless,’ brought in a motivational speaker to convince the glum professors that ‘ q positive attitude is vital for improving customer satisfaction,’ the ‘customers’ being the students. It should be noted that only 10 percent of the faculty bothered to attend the session.” Id. at 48. However, on a serious note: “Breast cancer, I can now report, did not make me prettier or stronger, more feminine or spiritual. What it gave me, if you want to call this a ‘gift,’ was a very personal, agonizing encounter with an ideological force in American culture that I had not been aware of before—one that encourages us to deny reality, submit cheerfully to misfortune, and blame only ourselves for our fate.” Id. at 43-44. “Human intellectual progress, such as it has been, results from our long struggle to see things ‘as they are,’ or in the most universally comprehensible way, and not as projections of our own emotions. Thunder in not a tantrum in the sky, disease is not a divine punishment, and not every death or accident results from witchcraft. What we call the Enlightenment and hold on to only tenuously, by our fingernails, is the slow-dawning understanding that the world is unfolding according to its own inner algorithms of cause and effect, probability and chance, without any regard for human feelings.” Id. at 197-198.).

October 19, 2009


Hedges, Chris, Empire of Illusion: The End of Literacy and the Triumph of Spectacle (New York: Nation Books, 2009) (“We are a culture that has been denied, or has passively given up, the linguistic and intellectual tools to cope with complexity, to separate illusion from reality. We have traded the printed word for the gleaming image. Public rhetoric is designed to be comprehensible to a ten-year-old child or an adult with a sixth0grade reading level. Most of us speak at this level, are entertained and think at this level.” Id. at 44. "Functional illiteracy in North America is epidemic.. There are 7 million illiterate Americans,. Another 27 million are unable to read well enough to complete a job application, and 30 million can’t read a simple sentence. There are some 50 million who read at a fourth- or fifth-grade level. Nearly a third of the nation’s population is illiterate or barely literate—a figure that is growing by more than 2 million a year. A third of high-school graduates never read another book for the rest of their lives, and neither do 42 percent of college graduates. In 2007, 80 percent of the families in the United States did not buy or read a book. And it is not much better beyond our borders. Canada has an illiterate and semiliterate population estimated at 42 percent of the whole, a proportion that mirrors that of the United States." Id. at 44. “The assault on education began more than a century ago by industrialists and capitalists such as Andrew Carnegie. In 1891, Carnegie congratulated the graduates of Pierce College of Business for being ‘fully occupied in obtaining a knowledge of shorthand and typewriting’ rather than wasting time ‘upon dead languages.’ The industrialist Richard Teller Crane was even more pointed in his 1911 dismissal of what humanists call the ‘life of the mind.’ No one who has ‘a taste for literature has the right to be happy’ because only men entitled to happiness . . . are those who are useful.’ The arrival of industrialists in university boards of trustees began as early as the 1870s and the University of Pennsylvania’s Wharton School of Business offered the first academic credential in business administration in 1881. The capitalists, from the start, complained that universities were unprofitable. These early twentieth-century capitalists, like heads of investment houses and hedge-fund managers, were as Donoghue writes, ‘motivated by an ethically based anti-intellectualism that transcended interest in the financial bottom line. Their distrust of the ideal of intellectual inquiry for its own sake, led them to insist that if universities were to be preserved at all, they must operate on a different set of principles from those governing the liberal arts.’“ “And as small., liberal arts schools have folded—at least 200 since 1990—they have been replaced with corporate, for-profit universities, There are now some forty-five colleges and universities listed on the NYSE or the NASDAQ. The University of Phoenix, the largest for profit school with some 300,000 students, proudly calls itself on its Web site: ‘Your corporate university.’ Ronald Taylor, the chief operator and co-founder of DeVry, the second-largest for profit, higher-education provider, bluntly stated his organization’s goal: ‘The colossally simple notion that drives DeVry’s business is that if you ask employers what they want and then provide what they want, the people you supply to them will be hired.’ The only mission undertaken by for-profit universities, and increasingly non-profit universities, is job training. And as universities become glorified vocational schools for the corporations, they adopt values and operating techniques of the corporation, they serve. It may be more cost-effective to replace tenured faculty with adjuncts and whittle down or shutter departments like French or history that do not feed vocational aspirations, but it decimates the possibility of a broad education that permits students to question the assumptions of a decaying culture, reach out beyond our borders, and chart new alternative and directions.” Id. at 109-110 (citations omitted). “I used to live in a country called America.” Id. at 141. READ THIS BOOK! THINK ABOUT THIS BOOK! REFLECT ON YOUR OWN INTELLECTUAL PREDICAMENT! CHANGE, OR DIE! ).

October 17, 2009


Begley, Louis, Why the Dreyfus Affair Matters (New Haven & London: Yale U. Press, 2009) (A French abuse of power at the end of the 19th century is relevant, and a warning, regarding an American abuse of power at the beginning of the 21st century. It is always easy to suspect, to blame, to convict, and to abuse ‘the other.’ The book hints at other issues. What is honor? At the national level? At the personal level? To the extent that America engages in acts of torture, is the nation compromising its honor? Compromising its right to be deemed worthy of respect by other nations and opther peoples? Compromising its ideals and self-respect?).

Bredin, Jean-Denis, The Affair: The Case of Alfred Dreyfus translated from the French by Jeffrey Mehlman (New York; George Braziller, 1986) ("And yet it would be unduly reductive to restrict the Affair narrowly to its own time on the pretext of avoiding a caricature, to deny what was enduring or 'eternal,' in Mauriac's phrase: what continues to help us know ourselves and acknowledge what we are almost a century after Dreyfus's conviction. It is true that the Dreyfus Affair can only be understood within its own time, in terms of the economic, social, and cultural forces of the end of the nineteenth century. It is also true that dramatic opposition between two moralities, two mentalities, is not only of the past. For what were the anti-Dreyfusards fighting? What was at stake, said Barres, was the house of our fathers, our land, our dead. For Cavaignac, it was 'the Nation's greatness,' 'the heritage of the defenders of the country.' It was also, proclaimed Deroulede, 'the spirit of abnegation, the spirit of discipline, the spirit of solidarity.' And behind the exaltation of the nation, the ancestral heritage, and traditional virtues could be found the popular sentiments diversely formulated in the comments of the contributors to the 'Henry monument': love of order, respect for work, devotion to country, rejection of foreigners, demands for security, and anxiety in the face of a changing world." "With what did the Dreyfusards oppose this? They never called into question loyalty to the Nation.... [T]he Dreyfusards claimed that neither order, nor respect for authority, nor institutional might, nor even the national interest were to stand in the way of the higher principles of justice and freedom. There were ethical values higher than all interests, higher even then the law, expressed by Peguy as follows: 'The passion for Truth, the passion for Justice, the impatience with falsity, the intolerance of deception occupied all our hours, all our energies,' On one side, encapsulating the clash, we find the principle that every act is to be judged in relation to France. On the other, that the rights of man are placed above every institution and every conviction." Id. at 539-540. Do we not see a similar divide in early 21st-century America? Yet! "In point of fact, within the Affair itself, the divisions were neither so simple nor so clear cut. For men are not simply a function of their culture and morality, their convictions and prejudices. In the course of their lives, they are affected and occasionally transformed by their class, their social milieu, their friends, the social fabric within which they live and grow old." Id.).

Guttenplan, D. D., American Radical: The Life and Times of I. F. Stone (New York: Farrar, Straus & Giroux, 2009) (See the review by David Carr, “Taking Down Big Game With a Crusading Pen,” NYT, July 9, 2009.).

Henry, Charles P., Ralph Bunche: Model Negro, or American Other? (New York: New York: U. Press, 1999) ("Although Bunche could accept the . . . view of slavery as a degrading experience, he could not totally embrace it. He rejected the 'grandparents as slaves,' 'extreme poverty' image because he rejected victim status. Victim status is a metaphor that describes an ideological discourse that mediates the conflict for mutual recognition that lies at the heart of the oppressed-oppressor interrelationship. If the victim succeeds in getting the victimizer to accept the condition or indeed the creation of the victimized as a product of the victimizer, then the victim has succeeded in being recognized and even in having his or her humanity conformed. It does not necessarily, however, challenge the superiority of the victimizer. In fact, by appealing to the morality and rationality of the victimizer, the victim confirms the humanity and goodness of the victimizer. Much of the discourse on race relations in this country from the abolitionists to Shelby Steele revolves around this concept." "Recognizing that the simple acknowledgment of the horrors created by the institution of slavery did nothing to resolve the dilemma of the 'other,' Bunche rejected any victim-status syndrome. Thus he could not fully accept the pathological character of the Black community that emerged from the work of E. Franklin Frazier." Id. at 214-215. "All of his life Bunche had worked to be treated equally. His thinking reflected the Aristotelian principle of equality as sameness. Those with the same attributes, status, or condition were treated equally. This reflected the liberal tendency to treat the 'other' as equal only after the 'other' had been redescribed as oneself. Only with the rise of Black Power did Bunche come to understand--as his grandmother must have instinctively understood--that the act of redescription is still an attempt to appropriate others. Race in the United States still rested on physical traits despite his best efforts at social reconstruction." "Bunche the human being and his legacy had been appropriate by the dominant ideology. He was redefined to make him an acceptable 'other.' When the larger society no longer needed his legacy for its purposes, he was forgotten. For the Black community, Bunche became invisible--his identity lost. That is why Ralph Johnson Bunche is unknown today and that is why his story must be told." Id. at 249-250.).

Lehman, David, A Fine Romance: Jewish Songwriters, American Songs (Jewish Encounters) (New York: Nextbook/Schocken, 2009) (“It may sound like the ultimate paradox, but one distinctively Jewish thing about the authors of the American songbook is the determination to escape from their Jewish origins and join the American Adventure. America represented freedom not only from persecution but also from the past, from outmoded rules and obscure regulations, esoteric doctrines and archaic habits of dress. America was an idea, a good idea, even a revolutionary one. You had the freedom to worship and the freedom not to worship, if you so chose. How important it was for Berlin to trumpet his patriotism or for Rodgers and Hammerstein to criticize racism at a time when world Jewry faced the specter of annihilation. The art they made was not an art of defiance—there is little anger or protest in a Rodgers and Hammerstein musical or a Berlin ballad. But in their affirmations of American ideals as they understood them, the writers of were pressing back against the forces that aimed to extinguish them.” Id. at 20.).

Oney, Steve, And The Dead Shall Rise: The Murder of Mary Phagan and The Lynching of Leo Frank (New York: Pantheon, 2003) (See the following two book reviews: Warren Goldstein, “Who Killed Mary Phagan?,” NYT, Sunday, October 26, 2003); and Theodore Rosengarten, “The Haunting Questions of a Murder and a Lynching,” NYT, Friday, December 19, 2003.).

Podhoretz, Norman, Why Are Jews Liberals? (New York: Doubleday, 2009) (Read Leon Wieseltier, "Because They Believe," in The NYT Book Review, Sunday, September 13, 2009. "So liberals and conservatives, and socialists too, and even the Club for Growth, will all find a use for this text, which is to say that the text is useless, I mean, for establishing the liberalism or the conservatism of the Jewish tradition." Id. at 8.).

Pritchett, Wendell, Brownsville, Brooklyn: Blacks, Jews, and the Changing Face of the Ghetto (Chicago & London: U. of Chicago Press, 2002).

Pritchett, Wendell, Robert Clifton Weaver and the American City: The Life and Times of an Urban Reformer (Chicago & London: U. of Chicago Press, 2008).

Smith, Steven B., Liberalism and the Question of Jewish Identity (New Haven & London: Yale U. Press, 1997) (“Spinoza’s prudent or philosophical reader, then, is neither a Jew nor a Christian but a new kind of person who might be called the liberated individual. This type of individual, delineated in the pages of Machiavelli, Hobbes, and Montaigne, was just beginning to make an appearance on the European scene. Such a person is liberated as far as possible from dependence on tradition and authority, is master of his passions and tolerant of others, and puts the highest premium on self-respect. Although this idea of the free individual had certain classical antecedents in the philosophy of Plato and the Stoics, it was based much more than before on the idea of personal autonomy. Where did such a reader come from? Where was such a one to be found? Id. at 43-44. “The one powerful, overriding command of both the Hebrew and Christian Scriptures is, then, love of neighbor, which Spinoza interprets to mean no persecution, no intolerance on the basis of religion. This is a teaching of highest political importance. It suggests that not only does the Bible forbid persecution but those who practice intolerance stand condemned of heresy. It suggests that intolerance not only is bad as policy but is at odds with the ‘universal foundation of religion. Toleration carries the weight of reason behind it (‘the [supreme] right of thinking freely, even concerning religion, is in the hands of each person’) and the weight of Scripture. Reason and religion converge on the same moral end.” Id. at 83. “The issue of identity and difference has recently dominated much of contemporary public discourse in the United States. We live in the age of the hyphenated American; many consider the older idea of a common citizenship to be neither possible nor desirable. Instead of focusing on what unities us as a people, we are increasingly told that authenticity, empowerment and self-esteem are bound up with our sense of ethnic, racial, or cultural identity. These issues were not unknown to Spinoza. He lived in an age of what might be called identity politics. [] One was defined by one’s religion, period. Exit, except on rare occasions, was not yet considered a viable option.” [] “In the Treatise Spinoza offers a strategy for dissolving group identities, and differences, not accommodating them. The problem of diversity–regarding religion and various conceptions of the human good–was for Spinoza the natural state of human affairs. The question that he posed was not how to enhance diversity but how to best control and contain it. He sought ways of increasing the power of the individual in order to better to resist the coercive power of group identities. Identity politics was not for him a source if empowerment but a means of imposing narrow orthodoxies and conformity. The threat to freedom was less likely to stem from the imposition of a common culture than from the tyranny of group differences, when, for example, clerical enthusiasts and other putative leaders arrogate to themselves power over the individual. Furthermore, Spinoza regarded a politics of group difference as more likely to produce lasting enmities and hatreds than a pleasing diversity and mutual respect. Did he not say with brutal candor that what leads one person to piety and religion leads another to laughter and contempt?” Id. at 201-202.).

Smith, Steven B., Spinoza’s Book of Life: Freedom and Redemption in the Ethics (New Haven: & London Yale U. Press, 2003) (“The problem with Weimar [Republic of Germany] was in the first instance its weakness and instability. The weakness of Weimar became most evident not with the economic crisis of 1929 --other democracies faced similar economic problems--but with its inability to protect the Jews. This dilemma was made all the more acute because the Jews of Germany, more that Jews of any other nation, had put their faith in liberal democracy to provide a solution to the ‘Jewish Question.’ Liberal democracy was understood as the regime devoted to ending persecution not only of Jews but of all religious and ethnic minorities. Liberal democracy was the first political regime to grant full citizenship and equal rights to Jews while recognizing their right to remain Jews. If for this reason only, the assassination of Walter Rathenau, the Jewish minister of foreign affairs, in 1922 proved a moment of profound crisis.” “The dilemma of modern Jewry has a long genealogy going back before Weimar to the time of Spinoza. Spinoza was to [Leo] Strauss and many of his generation the first example of the modern Jew. Spinoza championed not only a break with orthodoxy and the burdens of ceremonial law, but was the first Jewish thinker to endorse liberal democracy in something like its modern form [citation omitted]. Although Spinoza has been anathematized by the Jewish community of Amsterdam, he was subsequently canonized by generations of Jewish modernists, who celebrated him not only for showing the way out of the ghetto but for establishing a new kind of secular religion and culture based on the highest aspirations of the educated middle class…” “In particular Spinoza opened the door to liberal democracy. Society that was neither Christian nor Jewish but above or impervious to each, Central to the liberal solution to the theological-political predicament was the distinction between public and private and the belief that religion belonged exclusively to the private sphere of life. Henceforth religion would be deprived of the tools of force and coercion and turned into a matter of conscience and private belief, something quite different from the authoritative character of the law….” Id. at 191-1192. Given the increased intrusion of religion into the public sphere, is American society in decline as a liberal democracy? What will a post liberal-democracy look like? It certainly will not be liberal, but will it even be democratic?).

Urofsky, Melvin I., Louis D. Brandeis: A Life (New York: Pantheon, 2009) (“Brandeis never really questioned the basic rightness of the free enterprise system. He acknowledge that it had defects, and he spent many years trying to correct them. But the achievements of his immigrant father, and his own and his brother’s successful careers, imbued him with a sense of the opportunities awaiting the diligent worker. He differed from many of his fellow reformers in Boston when he insisted that risk capital deserved greater returns than money invested in safe measures, although he condemned outright speculation. Despite his involvement in labor matters, Brandeis did not overly concern himself with the weak. It is not that he did not care for people victimized by industrialization, or that he opposed measures to prevent the strong from taking advantage of others. Rather, he approached reform neither as a social worker nor as a leveler to give a leg up to those on the bottom. Life involved risks, and those who competed had to bear the losses as well as enjoy the gains. He always accepted and indeed rejoiced in the competition of life and of the economy, with both the harshness and the rewards. He once told his daughter Susan, when she complained of some difficulty, ‘My dear, if you will just start with the idea that this is a hard world, it will all be much simpler.’” Id. at 304-305. See the following two review essays. Adam Liptak, “How Brandeis, Revered or Hated, Became a Giant of the Supreme Court,” NYT, September 20, 2009; Alan M. Dershowitz, “The Practice,” The NYT Sunday Book Review, September 27, 2009. Also see, "Let's Look at the Facts," in The Economist, September 26, 2009: "Much of the legal conflict of the past few years in the United States has resulted from the efforts of a new generation of conservatives to reverse the work of Brandeis and his companions and disciplines on the court.").

October 13, 2009


Feigenson, Neal & Christina Speisel, Law on Display: The Digital Transformation of Legal Persuasion and Judgment (New York: NYU Press, 2009) (“As we contemplate the arc of the book, we cannot help but ask whether digital pictures and multimedia are in general good or bad for law. There is no simple answer. Since it’s clear, though, that digital pictures are here to stay, the question becomes how the law can best accommodate them, along with words spoken and written. Unless the legal system makes the effort to embrace and understand the new media, it’s going to encounter even more trouble as lawyers routinely deploy their digital tools. If, on the contrary, the law takes up the challenge to be alert, wise, and full of inquiry about the uses of new media, judgment and justice many be enhanced. This book is a first effort to suggest what should be done—not because we have all the answers but because , we hope, we have some of the right question.” Id. at xii. This is a very worthwhile read.).