August 23, 2010


From Scott Soames, Philosophical Analysis in the Twentieth Century: Volume 2, The Age of Meaning (Princeton & Oxford: Princeton U. Press, 2003):

"Grice's theoretical insight is that there are certain natural principles which guide the efficient and rational exchange of information by cooperative language users, and that speakers relying on these principle my use sentences to convey information that goes well beyond the information given by the meanings of the sentence uttered, or the propositions they semantically express. He introduces the idea of a principle of rational and cooperative exchange of information. . . . 'We might then formulate a rough general principle which participants will be expected (ceteris paribus) to observe, namely: Make your conversational contribution such as is required, at the stage at which it occurs, by the accepted purpose or direction of the talk exchange in which you are engaged. One might label this the Cooperative Principle'."

"[Grice] breaks down the general idea expressed by the Cooperative Principle into four sets of conversational maxims.
'1. Make your conversational contribution as informative as is required (by current conversational purposes). In other words, don't say too little.
'2. Don't make your conversational contribution more informative than is required. Don't say too much.
'1. Don't say what you believe to be false.
'2. Don't say that for which you lack adequate evidence.
'Make your conversational contribution relevant to the purpose of the conversation--i.e., be relevant.
'1. Avoid obscurity of expression.
'2. Avoid ambiguity.
'3. Be brief.
'4. Be orderly.'"

. at 200-201 (citations and formatting omitted).

The passage above, in which Soames summarizes the contributions of the philosopher Paul Grice, struck me (a recovering law teacher) by its implications were at least the spirit of the various maxims adhered to by law teachers, law students, and lawyers in their daily conversations generally and conversations about law in particular. Thoughtful persons in law will not need for me to make explicit those implications.

For those of you with a philosophical bent, or at least an interest in the history of ideas (here ideas in philosophy), I recommend not only the aforementioned second volume,
The Age of Meaning, but also the first volume. Scott Soames, Philosophical Analysis in the Twentieth Century: Volume 1, The Dawn of Analysis (Princeton & Oxford: Princeton U. Press, 2003).

August 20, 2010


Alexander, Michelle, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010) ("An extraordinary percentage of black men in the United States are legally barred from voting today, just as they have been throughout most of American history. They are also subject to legalized discrimination in employment, housing, education, public benefits, and jury service, just as their parent, grandparents, and great-grandparents once were." " What has changed since the collapse of Jim Crow has less to do with the basic structure of our society than with the language we use to justify it. In the era of colorblindness, it is no longer socially permissible to use race, explicitly, as a justification for discrimination, exclusion, and social contempt. So we don't. Rather than rely on race, we use our criminal justice system to label people of color 'criminals' and then engage in all the practices we supposedly left behind. Today it is perfectly legal to discriminate against criminals in nearly all the ways that it was once legal to discriminate against African Americans. Once you're labeled a felon, the old forms of discrimination--employment discrimination, housing discrimination, denial of the right to vote, denial of educational opportunity, denial of food stamps and other public benefits, and exclusion from jury service--are suddenly legal. As a criminal, you have scarcely more rights, and arguably less respect, than a black man living in Alabama at the height of Jim crow. We have not ended racial caste in America: we have merely redesigned it." Id. at 1-2. "This book is not for everyone. I have a specific audience in mind--people who care deeply about racial justice but who, for any number of reasons, do not yet appreciate the magnitude of the crisis faced by communities of color as a result of mass incarceration. . . ." Id. at xiii. On those increasingly rare days when I have a glimpse of my younger self, I think the following: That through argument and discussion people, especially young people, can be motivated to both see the injustices in the world and want to address correct them. It is part of the reason for my wanting to be a teacher a life time ago. Sadly, I admit, my older self has come to realize that few people are capable of seeing injustice unless it happens to them personally. (What is the cliche/joke: 'A liberal is a conservative who has been arrested. A conservative is a liberal who has been mugged.') And most of those who see it are motivated to think seriously about it only if there is a payoff, e.g., a job or at least another line on the resume. It is easy to live with someone else suffering injustices. Ms. Alexander still has the optimism that racial justice is a real possibility in America, and her book is an attempt to convince others of the seriousness of the problem and the need to address it. I wish I had that optimism.).

Alter, Jonathan, The Promise: President Obama, Year One (New York: Simon & Schuster, 2010) ("Yet the question remained: How much change did the country truly want? Like all presidential elections, 2008 was a referendum on the status quo, not a mandate for every policy prescription that the winner proposed. The returns were at bottom a stunning repudiation of the cowboy presidency of George W. Bush, with its ideological preoccupations and failure to honor what the Declaration of Independence called 'a decent respect to the opinions of mankind.' Weakened by his incompetent response to Hurricane Katrina, a quagmire in Iraq, and a wrenching recession, Bush was a deadweight on his old rival McCain, especially among self-described moderates (44 percent of the electorate), who went 60-39 for Obama. Independents (29 percent of voters) went 52-44 for the winner. Many of these swing voters like to strike a blow against incumbents and could easily turn on the new president. Obama in 2008 was like Franklin Roosevelt in 1932 and Ronald Reagan in 1980: the beneficiary of failure. The size of each of their victories depended on the intensity of the rejection." Id. at 43. "Decency, equanimity, intelligence, analytical rigor. An ability to inspire, set goals, and execute. Every organization absorbs the character it discerns in its leader, and Obama's nascent administration was no different. He hoped his appointees would look for the same qualities of leadership in the people they hired, and that hose official would in turn take on talented subordinates, and so on down the line. That was the idea, anyway." Id. at 58. 'The president's assumption about the intelligence and common sense of his audience was optimistic, even Pollyannish, but for most of 2009 it seemed to work even when his listeners didn't fully understand what he was saying. 'He treats people like adults,' Rhodes said. 'He doesn't think they're not smart enough or can't handle someone explaining the problems--whether it's race in America or the problems of the Muslim world. He knows that explaining things to people like they're adults is a sign of respect. It's also a bit of a prerequisite for progress. He's telling people not to be afraid of what's going on in the economy, or differences we have with people around the world, or changes that are taking place in the twenty-first century. He saying, 'If we talk through this, we can get through this.' " "But before long Obama began paying a price for favoring complex versions of policies over those with simple, elegant designs and colorful metaphors that were easier to sell. . . ." "Moreover, a lot of Americans weren't adults; they were more like the boisterous kids in the back of the car when Dad is trying to drive through a hurricane. And for at least a generation they had been more attuned to pictures than words. The White House had no stage manager, no one to do for Obama what Micheal Deaver did for Reagan and Harry and Linda Bloodworth-Thomason did for Clinton. It was easy for Obama backers to laugh at that and call it superficial, but staging counted. Whether he liked it or not, Obama was a performer in the theater of the presidency. Axelrod was a wordsmith, not an expert on visuals, but the bigger impediment to changing the communications strategy was Obama himself." ' 'It can't be too staged,' said Marty Nesbitt. 'He's going to tell the truth even when it's the hard truth, and without tricky rhymes or slogans. It takes time for the realness to take root, but he thinks it will.' Here Nesbitt quoted something Michelle said when they were first discussing running for president in 2006: 'If we can't do this being ourselves, I don't want to win.'" Id. at 274. Alter has written a very good synopsis of Obama: Year One.).

Barnhart, Bill & Gene Schlickman, John Paul Stevens: An Independent Life (DeKalb: Northern Illinois U. Press, 2010) ("Steven's dedication to judicial independence is hardly exceptional or quixotic. State and federal judges throughout the country are working to expose and blunt the power of money and special interests in judicial selection. Still, a suit to correct the most egregious episode of money influence on a court in recent years-a West Virginia mine operator paid more than $3 million to elect a judge who who overturn a $50 million judgment against him--drew just five of nine votes on the Supreme Court in the spring of 2008 (Capert0n v. A.T. Massey Coal Co.). The subject of judicial independence does not resonate in the public or press, which is more attracted to the debates and outcomes of judicial decisions than to the process. 'Independent' is an even more abstract concept in the law than 'liberal' or conservative'." Id. at 258.).

Blakely, Susan Smith, Best Friends at the Bar: What Women Need to Know about a Career in the Law (New York: Wolters Kluwer Law & Business, 2009) ("[B]e prepared for the stark realities of law practice, and arm yourself with research and a solid goals assessment. You are likely to find that the early years of practice can be an eye-opening experience for all lawyers, male and female alike. According to law school career counselors, the current generation of young lawyers is more inclined to walk out of unsatisfying circumstances and to derail careers without planning ahead. This is rarely an acceptable result. It is imperative to have a career plan--something like a mosaic that creates a pattern. It is really a simple case of developing building blocks for the future. Having a career strategy is different from having a job, and it takes different skills. One contributor, a law school career counselor, has a contemporary art poster of a block pattern in her office for a reason. She uses it to demonstrate that the blocks, which look random at first glance, actually display a pattern when more closely examined. She tells her students that this is the same process that they will go through if they give time and attention to developing a career plan. According to her, the most important blocks in the career plan are job satisfaction blocks, but getting to the ultimate goal of job satisfaction might require a series of choices, detours, and skill-based acquisitions. In other words, Rome was not built in a day! It takes patience and a deliberate approach to get what you want." "This can be a problem for members of the 'millennial generation,' who have been raised on technology like cell phones, instant messaging, and Blackberries, and often view things in terms of instantaneous responses and results. Instant gratification has become part of our culture, and the patience to develop a plan might not come as easily for young people today or seem as important. However, for young women attorneys, especially, many of whom will desire children and require a balance of work and life, it is critically important to go through this process to view a career prospectively to determine what is needed to stay in the profession and succeed." Id. at 16-17.).

Bodansky, Daniel, The Art and Craft of International Environmental Law (Cambridge, Massachusetts & London, England: Harvard U. Press, 2010) ("In countless ways, we are affected by international environmental norms, some social, other legal; some quite general, others very specific. . . . " "How and why do these norms arise? In what ways do they affect behavior? Do they change what states and individuals actually do, and, if so, why? How effective are they in solving international environmental problems? These are the fundamental questions I examine in this book." "As the questions suggest, the book focuses on the processes by which international environmental law is developed, implemented, and enforced rather than on the substance of international environmental law itself. . . . Rather than focus on one or two aspects of the international environmental process, it examines the process as a whole, from beginning to end, synthesizing recent research on international environmental environmental negotiations, treaty design, social norms, policy implementation, and effectiveness." "Understanding the international environmental process involves many disciplines--not only law, but also political science, economics, and, to more limited degree, philosophy, sociology, and anthropology. So this book is multidisciplinary. The aim is to provide the reader with the analytical tools necessary to understand what international environmental law is, how it operates, and what role it can play in addressing environmental problems." Id. at x-xi. This book is a very worthwhile read. I think some creative law professor, teaching a legal methods or legal reasoning course, could usefully incorporate this book into the course for its comments and illustrations of various forms of legal and nonlegal reasoning, the complexities of the law and the role of lawyers, and the realistic view that, though lawyers have a role to play in addressing many complex issues, the role of the lawyer who is just a lawyer (knowing only the law) is not as grand as the students might think.).

Breen, T. H., American Insurgents, American Patriots: The Revolution of the People (New York: Hill & Wang, 2010) ("There is another way of looking at the insurgency. This story draws upon the painful reflections of the last British officials to abandon their colonial posts. At a moment of crisis, these beleaguered figures offered valuable insights into the character of popular militancy. By viewing the insurgents as British official did, we discover that the Americans were not unlike so many oppressed people throughout the world who have taken up arms in defense of what they regard as their just rights. In more recent times, we have come to adopt the point of view of the imperial officials--sometimes even as we watch in horror as the representatives of our government flee from the last secure compound--but at such moments we might reflect that once, long ago, at the beginning of our national history, Americans challenged the legitimacy of the occupying regime." Id. at 288.).

Current, Richard Nelson, Those Terrible Carpetbaggers: A Reinterpretation (New York & Oxford, 1988) (From the book jacket: "Woodrow Wilson described them as men bent on 'an expedition of profit,' who used 'the negroes as tools for their own selfish ends.' Horace Greeley, while running for President, said they were 'fellows who crawled down South in the track of our armies, generally at a very safe distance in the rear.' And in the South they were hotly condemned as 'the larvae of the North,' 'vulturous adventurers,' and 'vile, oily, odious.' But how accurately does this describe the men from the North who came to be called 'carpetbaggers'? Were they uneducated, penniless exploiters of the freed slave, jackals who plundered a devastated South?" "In this eye-opening study, . . . Current weaves together the biographies of ten of these men--all of whom are representative, if not the epitome, of the men called 'carpetbaggers'--and offers a provocative revisionist history of Reconstruction and what has long been considered its 'most disgraceful' episode. Set within the larger context of congressional politics and the history of individual Southern states, Current's narrative reveals a group of men who were often highly educated, almost all of whom had served with distinction in the Union Army (three were generals), and several of whom brought their own money down South to help rebuild a war-torn land. Daniel H. Chamberlain, for instance, was educated at Yale and Harvard Law School--he was described by the President of Yale as 'a born leader of men'--was governor of South Carolina, and latter became a successful Wall Street lawyer. Adelbert Ames, a friend of blacks while Mississippi governor, afterwards made a fortune as a Massachusetts businessman. And Albion W. Tourgee, author of the best-selling A Fool's Errand, wrote the main brief of the Supreme Court case Plessy v. Ferguson, a major court battle against segregation, and was praised after his death by W.E.B. Du Bois for his efforts on behalf of the freed slaves." Current's vivid narrative captures the passions of this tumultuous period as he documents the careers of these ten prominent men. But more important, he provides a major reinterpretation of the entire Reconstruction era and the effort to establish biracial democratic government in the South. This brilliant collective biography will challenge us to rethink our views of this controversial epoch in American history.").

Crystal, David. A Little Book of Language (New Haven & London: Yale U. Press, 2010) ("Things are not getting easier. The number of styles [of language] we have to master has virtually doubled, because of the internet. . . . " "Sometimes, as with clothing, we simply don't have a choice about the kind of language we use. If we are people who go to religious services, the kind of language we use is laid down in advance. People say prayers in a fixed way--often with everyone speaking together. If someone reads aloud from a sacred book, it has to be done in a proper style." "The same principles applies if we find ourselves in court. There, everyone talks in a special way--the judge, the lawyers, the witnesses, the defendants. We might have to take an oath, which means repeating the words exactly as they're said to us. If we give evidence, we have to answer all the questions and do so in a properly respectful way. If we don't, we can be charged with being in 'contempt of court'. And if he judge thinks the offense is serious, we can even be fined or go to prison for it." "So it can pay us to know as much as possible about the different styles that exist in language, and to master as many of them as we can. And mastering a style means developing a sense of when it's appropriate to use it and when it isn't. If we have a good 'clothes sense', it means we instinctively know what kind of things to wear to suit the occasion. It's the same with language. We have to develop a good 'language sense' too." Id. at 229.).

Eagleton, Terry, On Evil (New Haven & London: Yale U. Press, 2010) ("Thomas Aquinas taught that our reasoning is closely bound up with our bodies. Roughly speaking, we think the way we do because of the kind of animals we are. It belongs to our reasoning, for example, that it always goes on within a specific situation. We think from inside a particular perspective on the world. This is not an obstacle to grasping the truth. On the contrary, it is the only way we can grasp it. The only truths we can attain to are those appropriate to finite beings like ourselves. And these are the truths of neither angels nor anteaters. Overreachers, however, refuse to accept these enabling constraints. For them, only truths which are free of all perspective can be authentic. The only valid viewpoint is the God's-eye viewpoint. But this is a vantage point from which we humans would see nothing at all. For us, absolute knowledge would be utter blindness. Those who try to leap out of their finite situations in order to see more clearly end up seeing nothing at all. Those who aspire to be gods, like Adam and Eve, destroy themselves and end up lower than the beasts, who are not so plagued by sexual guilt that they need a fig leaf. Even so, this aberration is an essential part of our nature. It is a permanent possibility for rational animals like ourselves. We cannot think without abstraction, which involves reaching beyond the immediate. When abstract concepts allow us to incinerate whole cities, we know we have reached too far. A perpetual possibility of going awry is built into our capacity for sense-making. Without this possibility, reason could not function." Id. at 32-33. "For the most part, it is old-fashioned self-interest and rapacity we have to fear, not evil. Monstrous acts are by no means always committed by monstrous individuals. CIA torturers no doubt make devoted husbands and fathers. No single individual is usually responsible for military carnage . . . . Those who steal pension funds or pollute whole regions of the planet are often mild-mannered individuals who believe that business is business. And that this is so should be seen as a source of hope. The point is that most wickedness is institutional. It is the result of vested interests and anonymous processes, not of the malign acts of individuals. One should not, to be sure, underestimate the importance of such acts, just as one one should not be excessively sophisticated as to reject the ideas of conspiracies. It is a fact that men and women with shady intentions gather from time to time in what these days are smoke-free rooms to plot some moral outrage or other. For the most part, however, such outrages are the product of particular systems." Id. at 143-144. "In a sense, the moral absolutists are right. The distinction that matters is indeed one between good and bad. But not in the sense they imagine. Morally speaking, what really divides people is whether or not they acknowledge that history to date has been for the most part a fable of bloodshed and despotism; that violence has been far more typical of the species than civilized conduct; and that a great many men and women born on the planet would almost certainly have been better off never having seen the light of day. . . ." Id. at 154. This is a thoughtful read, but whose arguments most readers will find far less than comforting.).

Emanuel, Kerry, What We Know About Climate Change (Boston Review Book) (Cambridge, Massachusetts & London, England: MIT Press, 2007) ("Especially in the United States, the political debate about global climate change became polarized along the conservative-liberal axis some decades ago. Although we take this for granted now, it is not entirely obvious why the chips fell the way they did." Id. at 65. "There are other obstacles to taking a sensible approach to the climate problem. We have preciously few representatives in Congress with a background or interest in science, and some of them display an active contempt for the subject. As long as we continue to elect scientific illiterates . . . we will lack the ability to engage in intelligent debate. Scientists are most effective when they provide sound, impartial advice, but their reputation for impartiality is severely compromised by the shocking lack of political diversity among American academics, who suffer from the kind of group-think that develops in cloistered cultures. Until this profound and well-documented intellectual homogeneity changes, scientists will be suspected of constituting a leftist think tank." Id. at 67-68. Lawyers, law professors, and law students should question their level of scientific literacy? Is it adequate? Or, do they talk-the-talk of, say, environmental regulation, climate change, etc., while lacking a solid grounding in the science?).

Greenhouse, Linda & Reva B. Siegel, eds., Before Roe v. Wade: Voices that Shaped the Abortion Debate Before the Supreme Court's Ruling (New York: Kaplan, 2010) ("During the years before January 22, 1973, the day on which the Supreme Court decided Roe v. Wade and proclaimed that the Constitution protected a woman's right to decide whether to bring a pregnancy to term, Americans conducted a vigorous debate about abortion's morality and meaning. It is obvious today that the Supreme Court's decision did not end this debate. Neither, of course, did the Court start it--although public discussion of Roe v. Wade implies not infrequently that it did. . . ." "By declaring unconsitutional laws that criminalized abortion in states across the country, the decision in Roe v. Wade also swept away much of the collective memory of what had gone before. Records of court cases that had taken years to build were now rendered irrelevant, and transcripts of testimony once painstakingly compiled were carelessly misfiled or discarded. And beyond the loss of paper records, the Supreme Court decision itself proved a distorting lens through which to look back on what had preceded it." "For example, the fact that neither women nor fetuses figured very prominently in Roe v. Wade makes it plausible to assume that feminsit voices and right-tolife voices were simply missing, both from the arguments presented to the Supreme Court and from the public conversation. In fact, feminist and right-to-life positions were passionately expressed in public debate and in friend-of-the-court briefs filed in Roe v. Wade. Yet, the Supreme Court issued a decision that appeared mainly responsive to the arguments of the medical community. . . . The organized medical professionn, which had spurred the criminalization of abortion a century wearlier, had come only lately to view the humdreds of thousands of illegal abortions performed every year as a public health problem of urgent dimensions. The Court responded to these medical voices--which the justices heard through legal briefs and, more informally, through their reading and in their daily lives." "As this book demonstrates, doctors and public health advocates played an important role in setting the nation on the road to Roe v. Wade, but so too did movements for human freedom. In the pages that follow, we trace how arguments for liberalizing abortion law in the name of public health gave way over time to claims of the women's movement seeking for women liberty, equality, and dignity: women's right to control their own bodies and lives; to have thier voices and decisions treated with respect; and to particpate as equals in private and public life. As the women's movement connected the abortion right to these larger claims of principles, the abortion conflict was constitutionalized. And these claims for repeal of law criminalizing abortion in turn moved other Americans to appeal to widely held principles to defend the 'right to life' of the unborn." Id. at ix-x. Worthy background reading!! I do wonder how a majority of young women today would react to the following statement by Phyllis Schlafly: " 'Women's libbers do not speak for the majority of American women. American women do not want to be liberated from husbands and children. We do not want to trade our birthright of the special privileges of American women--for the mess of pottage called the Equal Rights Amendment.' ' Modern technology and opportunity have not discovered any nobler or more satisfying or more creative career for a woman than marriage and motherhood. The wonderful advantage that American women have is that we can have all the rewards of that number-one career, and still moonlight with a second one to suit our intellectual, cultural or financial tastes or needs.' 'And why should the men acquiesce in a system which gives preferential rights and lighter duties to women? In return, the men get the pearl of great price: a happy home, a faithful wife, and children they adore.' " Id. at 219 (citing the Phyllis Schlafly Report, February 1972). The guys blew it, see Hanna Rozin, "The End of Men," in the July/August 2010 edition of The Atlantic. But can one think of a more nobler career for men than marriage and fatherhood, with the opportunity to moonlight in a second career to suit their intellectual, cultural or financial tastes or needs? Were I in my twenties I would say, Sign me up! But, alas, I am too old for a career change into marriage and fatherhood. Then again, I don't think it would have been a good deal. What is the divorce rate in the United States? How many deadbeat dads are there? Will there be a significant number of deadbeat moms? Timing - and a historical perspective- is everything. On a more serious note, see Ginia Bellafante, "Abortion In the Eyes Of a Girl From Dillon, NYT, Saturday, 7/10/2010. "What if, as an emotionally wounded 10th grader without resources living in Dillon, Tex., with its pageant of grim futures, she could defy sociological prediction?" The tortured expression on Becky's face tells us how profoundly she would like this to be so and yet how clearly she foresees the bleaker reality. 'I can't take care of a baby,' she tearfully tells Tami, matriarch to Dillon's lost youth. 'I can't.' " "With those words Becky decided to have an abortion. This took place on Friday's episode of 'Friday Night Lights' and was remarkable--abortions have been rare on serial television since the early '70s. . . ." "For years . . . television has consistently leaned to the right on the subject of unwanted pregnancy. . . ." "What was striking about the exploration of Becky's circumstances on 'Friday Night Lights' was the extent to which the opposing view was depicted as obtuse and out of touch. . . ." "'Friday Night Lights' chose to maintains its commitment, above all, to the world it renders--and to its quasi-Marxist understanding that economics dictate everything. Dillon is a difficult place where improperly-cared-for children materialize one after another, week after week. . . . Again and again, 'Friday Night Lights' seems to remind us, as if in Klieg lights, of the consequences of pareethood pursued by accident or default." Id.).

Groysberg, Boris, The Myth of Talent and the Portability of Performance (Princeton & Oxford: Princeton U. Press, 2010) (From the bookjacket: "After examining the careers of more than a thousand star analysts at Wall Street investment banks, and conducting more than two hundred frank interviews, Groysberg comes to a striking conclusion: star analysts who change firms suffer an immediate and lasting decline in performance. Their earlier excellence appears to have depended heavily on their former firms' general and proprietary resources, organizational cultures, networks, and colleagues. There are a few exceptions, such as stars who move with their teams and stars who switch to better firms. Female stars also perform better after changing jobs than their male counterparts do. But most stars who switch firms turn out to be meteors, quickly losing luster in their new settings. . . ." "Chasing Stars offers profound insights into the fundamental nature of outstanding performance. It also offers practical guidance to individuals on how to manage their careers strategically, and to companies on how to identify, develop, and keep talent.).

Halliday, Paul D., Habeas Corpus: From England to Empire (Cambridge, Massachusetts & London, England: Belknap/Harvard U. Press, 2010) ("This is a history of England and of its empire. It can and must be a history of a nation and empire in order to be a history of habeas corpus, because no other part of law touched so much of life. No legal instrument dealt equally with things so public as treason and so personal as insanity. No other writ provided opportunities to think through the political threat posed by religious dissent while at the same time considering the social meaning of fathering an illegitimate child, of whore-mongering, or of sodomy. And no other writ issued simultaneously to church leaders, mayors and sheriffs, professional societies, violent husbands, and military officers. Well before 1800, jailers in imperial outposts around the globe answered the writ's demands. Using it, judges inspected the performance of all kinds of administrators and magistrates as they collected tithes and taxes, monitored sewers and the debts of bankrupts, held prisoners of war, and imprisoned the queen's enemies as well as those mistakenly supposed to be her enemies. Given this range, and given the high quality of judicial records, habeas corpus provides an otherwise unavailable means to follow political dislocations and cultural transformations of all kinds over centuries and across the globe. Writing the writ's history permits--even requires--uniting disparate historical fields: social and religious history, the history of the state, histories of politics in thought and action, the history of empire, and the history of law. The presence in this book of each of these varieties of historical explanation makes all the other is intelligible." Id. at 2-3. "Lawyers, too, might find much here to interest them. While writing about one legal instrument, I offer by my practice an implicit essay on what constitutes a properly historical analysis of law's past, and on the sources and methods we might use to produce such analysis. This matters not only to the validity of the claims historians make about what law 'was' in any given past. It matters because such claims are often put to work in legal problem solving, especially in the United States. We read Coke, Blackstone, and a handful of printed reports, then claim that we know what the law 'was' in 1789 or some other moment. If we do that while countless parchment court records and case reports surviving only in manuscript lie unread in archives, then we have been derelict as historians. If we act upon such claims in our courts, we may be derelict in our jurisprudence, our claims resting on hollow foundations." Id. at 3-4.).

Hayek, Friedrich A., The Collected Works of F. A. Hayek: Volume 13, Studies on the Abuse and Decline of Reason: Text and Documents edited by Bruce Caldwell (Chicago & London: U. of Chicago Press, 2010) (From "Individualism: True and False": "The chief concern of the great individualist writers was indeed to find a set of institutions by which man could be induced, by his own choice and from the motives which determined his ordinary conduct, to contribute as much as possible to the need of all others; and their discovery was that the system of private property did provide such inducements to a much greater extent than had yet been understood. They did not contend, however, that this system was incapable of further improvement and, still less, as another of the current distortions of their arguments will have it, that there existed a 'natural harmony of interests' irrespective of the positive institutions. They were more than merely aware of the conflicts of individual interests and stressed the necessity of 'well-constructed institutions' where the 'rules and principles of contending interests and compromised advantages' would reconcile conflicting interests without giving any one group power to make their views and interests always prevail over those of all others." Id. at 46, 58-59. "What the economists understood for the first time was that the market as it had grown up was an effective way of making man take part in a process more complex and extended than he could comprehend and that it was through the market that he was made to contribute 'to ends which were no part of his purposes'." Id. at 60. From "'Purposive' Social Formations": "We flatter ourselves undeservedly if we represent human civilisation as entirely the product of conscious reason or as the product of human design, or when we assume that it is necessarily in our power deliberately to re-create or to maintain what we have built without knowing what we were doing. Though our civilisation is the result of a cumulation of individual knowledge, it is not by explicit or conscious combination of all this knowledge in any individual brain, but by its embodiment in symbols which we use without understanding them, in habits and institutions, tools and concepts, that man in society is constantly able to profit from a body of knowledge neither he nor any other man completely possesses. Many of the greatest things man has achieved are the result not of consciously directed thought, and still less the product of a deliberately co-ordinated effort of many individuals, but of a process in which the individual plays a part which he can never fully understand. They are greater than any individual precisely because they result from the combination of knowledge more extensive than a single mind can master." Id. at 142, 146-147. From "The Source of the Scientistic Hubris: L'Ecole Polytechique": "Never will man penetrate deeper into error than when he is continuing on a road which has led him to great success." Id. at 168, 168. "The [French] Revolution had swept away the old system of colleges and universities, which system was based largely on classical education, and after some short-lived experiments the Revolution replaced them in 1785 with the new ecoles centrales, which became the sole centres of secondary education. In conformity with the ruling spirit and by an over-violent reaction against the older schools, the teaching in the new institutions was confined for some years almost exclusively to the scientific subjects. Not only the ancient languages were reduced to a minimum and in practice almost entirely neglected, even the instruction in literature, grammar, and history was very inferior, and moral and religious instruction, of course, completely absent. Although after some years a new reform endeavored to make good some of the gravest deficiencies, the interruption for a series of years of the instruction in these subjects was sufficient to change the whole intellectual atmosphere. . . . " "Thus a whole generation grew up to whom that great storehouse of social wisdom, the only form indeed in which an understanding of the social processes achieved by the greatest minds is transmitted, the great literature of all ages, was a closed book. For the first time in history that new type appeared which as the product of the German Realschule and of similar institutions was to become so important and influential in the later nineteenth and the twentieth century: the technical specialist who was regarded as educated because he had passed through difficult schools but who had little or no knowledge of society, its life, growth, problems, and values, which only the study of history, literature, and languages can provide." Id. at 175-176. Does not that capture what is happening in higher education, including legal education, today? It is not so much an emphasis of science, but rather an emphasis on a very narrow and perverse notion of 'professionalism." Students are trained to master a set of skills thought useful for their being productive members of some profession, e.g., medicine, law, business, education, sports announcing, etc. In short, students are taught a trade. They are mere technicians of their trade. Technicians, including legal technicians, are graduated notwithstanding their having little or no sense history, literature or language, that is, completely lacking a liberal education. And, with what consequences?).

Hirschman, Albert O., Shifting Involvements: Private Interest and Public Action (Twentieth-Anniversary Edition) (Princeton & Oxford: Princeton U. Press, 1982, 2002) (From "On Disappointment": "My basic point is easily stated: acts of consumption, as well as acts of participation in public affairs, which are undertaken because they are expected to yield satisfaction, also yield disappointment and dissatisfaction. They do so for different reasons, in different ways, and to different degrees, but to the extent that the disappointment is not wholly eliminated by an instantaneous downward adjustment of expectations, any pattern of consumption or of time use within itself, to use the hallowed metaphor, 'the seeds of its own destruction.' . . ." Id. at 9, 10-11. "While a life filled with disappointment is a sad affair, a life without any disappointment may not be bearable at all. For disappointment is the natural counterpart of man's propensity to entertain magnificent vistas and aspirations. Is this propensity unfortunate and irrational? Given the certainty of death (for one thing), what would life be without the ever renewed production of such disappointment-yielding expectations and aspirations? In other words, the 'cost' of disappointments may well be less than the 'benefit' yielded by man's ability to entertain over and over again the idea of bliss and happiness, disappointment-bound though it may be. . . ." Id. at 23-24.).

Holton, Woody, Unruly Americans and the Origins of the Constitution (New York: Hill & Wang, 2007) ("Today politicians as well as judges profess an almost religious reverence for the Framers' original intent. And yet what do we really know about the motives that set fifty-five of the nation's most prominent citizens . . . on the road to Philadelphia? The Framers' motivations remain nearly as obscure today as they were that muggy summer of 1887, when the Constitutional Convention delegates voted to maintain their strictest secrecy--and thwarted eavesdroppers by keeping the fetid chamber's doors and windows closed and latched." Id. at 3. "The textbooks and popular histories give surprisingly short shrift to the Framers' motivation. What almost all of them do say is that harsh experience had exposed the previous government, under the Articles of Confederation (1781-1789), as too weak. What makes this emphasis strange is that the Framers' own statements reveal another, more pressing motives." Id. at 4. "What these men were saying was that the American Revolution had gone too far. Their great hope was that the federal convention would find a way to put the democratic genie back into the book. Alexander Hamilton, the most ostentatiously conservative of the convention delegates, affirmed that many Americans--not just himself--were growing 'tired of an excess of democracy.' Others identified the problem as 'a headstrong democracy,' a 'prevailing rage of excessive democracy,' a 'republican frenzy,' 'democratical tyranny,' and 'democratic licentiousness." Id. at 5. "What Americans admire most about their national charter is that it is, at its best, an underdogs' Constitution, a document that protects even the most unpopular religions and political ideas, the most mistrusted racial and ethnic minorities--and even people accused of crimes. But this book has argued that an underdog's Constitution is precisely what the Framers did not intend to write. While there is no reason to question their claim that they hoped to benefit all free Americans, what they meant to give the ordinary citizen was prosperity, not power. Indeed, many of the Amendments that we most cherish today-the enfranchisement of African Americans and women, the direct election of senators, and others--do not just add to the Constitution. They directly contradict the Framers' antidemocratic intent." ". . . That the nation's fundamental charter is an underdogs' Constitution is, for most Americans, a source of tremendous pride. It is richly ironic that what has arguably become history's greatest experiment in shielding the powerless began as a slur on the capacities of ordinary citizens." Id. at 277-278. This is a worthwhile addition to the supplemental reading list to a law school's Constitutional Law course. At least, that is, if one think history matters to the study of law in general, and to American constitutional law in particular.).

Hoxby, Caroline M., ed., The Economics of School Choice (A National Bureau of Economic Research Report)(Chicago & London: U. of Chicago Press, 2003) (From the jacket cover: "Combing the results of empirical research with analysis of the basic economic forces underlying local education markets, The Economics of School Choice presents evidence concerning the impact of school choice on student achievement, school productivity, teachers, and special education. It also tackles difficult questions such as whether school choice affects where people decide to live and how choice can be integrated into a system of school financing that gives children from different backgrounds equal access to resources. . . .").

Jarrell, Randall, Pictures from an Institution: A Comedy (Chicago & London: U. of Chicago Press, 1986) ("The faculty of Benton, the true faculty, felt that if Benton were gone it would no longer be possible to become educated. They were a little awed by this, and cast their eyes down, but it was a truth that, in the end, they looked seriously at. They felt toward, say, Oxford, as the kinder members of the Salvation Army used to feel toward the Established Church: they would have been forgiving except for all the harm it did without meaning to. They said, over and over and over: What is the good of learning Spinoza if you do not learn about life? (And this is true: how better it would be if we could teach, as we teach Spinoza, life!) They had heard intelligent people say, as intelligent people say with monotonous regularity, that one gets more out of one's reading and conversation at college than one gets from college itself. Benton decided, with naked logic: Why not let that reading and conversation be college, and let students do the ordinary classwork on the outside?--if they felt they needed to; for some of it might profitably be disregarded, all that part that is, in President Robbins' phrase, boring. So the students' conversation and reading and 'extra-curricular cultural activities' and decisions about Life were made, as much as possible, the curriculum thorough which the teachers of Benton shepherded the students of Benton, biting at their heels and putting attractive haystacks before their even more attractive noses: they called this 'allowing the students to use his own individual initiative.' There was more individual initiative of this kind at Benton then there was in Calvin's Geneva." Id. at 83-84.).

LaCroix, Alison, The Ideological Origins of American Federalism (Cambridge, Massachusetts & London, England: Harvard U. Press, 2010) ("The few scholars who have explicitly discussed the question of federalism's origins have pointed to three structures and institutions of the British Empire as the source of the concept of divided authority." Id at 3. "Substantively, these . . . approaches reach varied conclusions on the question of federalism's origins. In keeping with its emphasis on drafting and ratification as foundational moments, the constitutional law version of events holds that American federalism was novel, and that the creation of the Republic constituted a fundamental break with the past. . . . In contrast, republican scholars have tended to focus less on federalism itself and more on the broader moments of ideological transformation in late-eighteenth-century American politics. The institutional view, meanwhile, implicitly downplays the significance of the convention and suggests instead that 1787 was one of many moments of negotiation and reshuffling among preexisting institutional forms." Id. at 5. "This book seeks to offer a different view of the origins of American federalism. It brings ideology back into the discussion of the meaning and significance of federalism in the founding and ratification periods and places the Philadelphia convention in the broader context of federal thought in the late eighteenth. To be sure, institutions are an important part of the story, but the ideas surrounding those institutions--the words and concepts that contemporary actors used as they explained to themselves what the institutions meant--played a crucial role in defining the contours first of colonial and then of early national government." Id. at 5. "[T]he central claim of this book is that the emergence of American federalism is he second half of the eighteenth century should be understood as primarily an ideological development--indeed, as one of the most important ideological development of the period. The core of this new federal ideology was a belief that multiple independent levels of government could legitimately exist within a single polity, and that such an arrangement was not a defect to be lamented but a virtue to be celebrated. In this sense, the book emphasizes change rather than continuity in the transition from the British Empire to the federal republic. Id. at 6. This is an important read.).

Langer, Ellen J., Mindfulness (Reading, Massachusetts: Addison-Wesley, 1989) ("A very different . . . explanation for why we become mindless has to do with our early education. From kindergarten on, the focus of schooling is usually on goals rather than on the process by which they are achieved. This single-minded pursuit of one outcome or another, from tying shoelaces to getting into Harvard, makes it difficult to have a mindful attitude about life. " Id. at 33-34. "The style of education that concentrates on outcomes generally also presents facts unconditionaly. This approach encourages mindlessness. If something is presented as an accepted truth, alternative ways of thinking do not even come up for consideration. Such a single-minded way of viewing the world can generalize to virtually everything we do. By teaching absolutes we pass our culture from one generation to the next. It brings stability. But . . . the cost may be high." Id. at 35.).

Langer, Ellen J., The Power of Mindful Learning (Reading, Massachusetts: Addison-Wesley, 1996) ("In a mindful state, we implicitly recognize that no one perspective optimally explains a situation. Therefore, we do not seek to select the one response that corresponds to the situtation, but we recognize that there is more than one perspective on the information given and we choose from among these." Id. at 108.).

Liu, Goodwin, Pamela S. Karlan, & Christopher H. Schroeder, Keeping Faith with the Constitution (Inalienable Rights Series) (New York & Oxford: Oxford U. Press, 2010) ("In this book, we describe and defend an approach to constitutional interpretation that is richer than originalism or strict construction, more consistent with the history of our constitutional practice, and more persuasive in explaining why the Constitution remains authoritative over two hundred years after the nation's founding. Interpreting the Constitution, we argue, requires adaption of its text and principles to the conditions and challenges faced by successive generations. The question that properly guides interpretation is not how the Constitution would have been applied at the Founding, but rather how it should be applied today in order to sustain its vitality in light of the changing needs, conditions, and understandings of our society." "We use the term constitutional fidelity to describe this approach. To be faithful to the Constitution is to interpret its words and to apply its principles in ways that preserve the Constitution's meaning and democratic legitimacy over time. Original understandings are an important source of constitutional meaning, but so too are the other sources that judges, elected officials, and everyday citizens regularly invoke: the text of the Constitution, its purpose and structure, the lessons of precedent and historical experience, the practical consequences of legal rules, and the evolving norms and traditions of our society. A dynamic process of interpretation informed by these considerations is what enables the American people to keep faith with the Constitution from one generation to the next." Id. at xvi-xvii. In short, interpreting the Constitution is not a simply matter of calling balls and strikes.)

Lynch, Jack, The Lexicographer's Dilemma: The Evolution of "Proper" English, from Shakespeare to South Park (New York: Walker, 2009) ("Everybody complains about language, but nobody does anything about it--well, almost nobody. This book is an account of some of the people who did try to do something about it. It's about the rise of 'standard English'." Id. at 1. "Not all the effects of computers have been unambiguously positive. Once upon a time, when people read printed material, it had been copyedited, typeset, and proofread by professionals. Handwritten notes were one thing--no one was surprised by erratic spelling, punctuation, and grammar there--but if something appeared in print, it had almost always undergone several stages of vetting. Heavens knows it wasn't always perfect, but it had received at least some superficial attention." "The technology transformation of the last few decades have changed that, apparently forever. Now, thanks to the phenomenon known as 'desktop publishing' . . . anyone has the power to do what only professional typesetters could do before. There are many advantages of giving the masses easier access to the printed word, but there are also downsides. Under the old dispensation, typesetters and proofreaders were expected to learn an elaborate protocol about when punctuation goes inside or outside quotation marks, when to use italics, how to set ordinal numbers . . . , how far to indent new paragraphs, where to hyphenate words across lines, whether it's U.S.A. or USA, whether it's well known president or well-known President, whether it's flower pot, flower-pot, or flowerpot, whether it should be pages 123-124, or pages 123-24, how long that dash between digits should be . . . , and so on. The handbooks spelling out the rules for such matters--The Chicago Manual of Style is one of the most famous--stretch to hundreds of pages, describing the minutiae of typesetting practice. You didn't get to make those decisions until you'd served an apprenticeship in the publishing business and demonstrated a mastery of the rules." "Today, though, anyone with access to even a cheap computer and a printer can reproduce the superficial appearance of a printed book, without training in how to handle all the special cases. And sometimes the results are nervous-making. . . . The technology made it possible to skip the apprenticeship,and now even the marginally literate can publish. It is not necessarily a bad thing, but it is one way in which technology s changing the language--or, to be more precise, in which the social changes made possible by technology are changing the language." Id. at 257-258.).

Manguel, Alberto, A Reader on Reading (New Haven & London: Yale U. Press, 2010) ("The subject of this book, as of almost all my other books, is reading, that most human of creative activities. I believe that we are, at the core, reading animals and that the art of reading, in its broadest sense, defines our species. We come into the world intent on finding narrative in everything: in the landscape, in the skies, in the faces of others, and, of course, in the images and words that our species creates. We read our own lives and those of others, we read the societies we live in and those that lie beyond our borders, we read pictures and buildings, we read that which lies between the covers of a book." "This last is of the essence. For me, words on a page give the world coherence. . . . Words tell us what we, as a society, believe the world to be." " 'Believe to be': therein lies the challenge. Pairing words with experience and experience with words, we readers, sift through stories that echo or prepare us for an experience, or tell us of experiences that will never be ours, as we know all too well, except on the burning page. Accordingly, what we believe a book to be shapes itself with every reading. . . . Heraclitus's bon mot about time applies equally well to my reading: 'You never dip into the same book twice.'" Id. at ix-x. At the beginning of a new academic year, I wonder how many of the entering students are 'readers,' what stories reading law will tell them, what beliefs about the world they have now and will have after all their law reading, and how their naive(?) beliefs about the world of laws will shape their reading of legal texts.).

Marano, Hara Estroff, A Nation of Wimps: The High Cost of Invasive Parenting (New York: Broadway Books, 2008) ("Less than one-third of college graduates--down from 40 percent a decade ago--were deemed proficient in the ability to read and understand ordinary text passages. A mere 25 percent of college graduates--and only 31 percent of those with at least some graduate studies (down from 40 percent a decade ago)--scored high enough to be deemed 'proficient' from a literacy standpoint. Most could not interpret a table about exercise and blood pressure, understand the arguments of newspaper editorials, or compare credit card offers with differing interest rates and annual fees. Nor could they summarize results of a survey about parental involvement in school. 'What's disturbing,' said the center's commissioner of education statistics, 'is that the assessment is not designed to test your understanding of Proust but to test your ability to read labels." "As educational attainment rises, one would expect at a minimum a rise in average test scores for text-based literacy. That is what education is supposed to do. But scores actually fell from 1992 to 2003 for virtually every educational level. Worse, the decline were steepest the further up the educational ladder adults moved. 'You have the possibility of people going through schools, getting a piece of paper for sitting in class a certain amount, and we don't know whether they're getting what they need' . . . ." Id. at 108. "It is bad enough that the hothouse approach to children's experience is consuming private life. But it is spilling into public life in various ways. The cultivation of preciousness of one's offsprings seems to breed in parents the conviction that everyone else in the culture, or at least the neighborhood, is as interested in and delighted by children, specifically their children, as they are. This is a well-recognized psychological phenomennon known as the focusing fallacy; parents inflate the importance of their kids. That encourages them to cart the kiddies with them everywhere they themselves want to go--even to parties and restaurants, cafes, and other venues where grown-ups like to gather just to remind thesmselves that there is life beyond poop and Play-Doh, and where (at the risk of being judged uncaring by 'nipple Nazis' and other extreme parents) they might actually enjoy a respite from the demands of their equally darling children." "But taking kids to adult playgrounds typically has an aggressive quality to it, because it tends to violate the primary purpose of such places and alter the atmosphere dramatically; it can turn a taproom into a playroom faster than you can say Guinness draft. The new parental aggressiveness is not going down everywhere as smoothly as Enfamil, and it could trigger the next great divide in political life." Id. at 254.).

Marcus, Greil, & Werner Sollors, eds., A New Literary History of America (Cambridge, Massachusetts & London, England: Belknap/Harvard U. Press, 2009) (New Literary History of America begins in the sixteenth century; the nineteenth and twentieth centuries dominate the story it tells, and this is the story of a made-up nation that in many ways preceded its society. Its literature was not inherited but invented, as if it were a tool or a machine, and discovered, as if it were a gold strike or the next wonder of the Louisiana Purchase. No tradition has ever ruled; no form has ever been fixed; American history, literary, social, political, religious, cultural, and technological, has been a matter of what one could make of it, and how one got across what he or she meant to say to his or her fellow citizens, as they no less than the speaker struggled to define themselves as individuals, and as part of a whole." "This book is a reexamination of the American experience as seen through a literary glass, where what is at issue is speech, in many forms. Throughout, the search has been for points in time and imagination where something changed: when a new idea or a new form came into being, when new questions were raised, when what before seemed impossible came to seem necessary or inevitable. The goal of the book is not to smash a canon or create a new one, but to set many forms of American speech in motion, so that different forms, and people speaking at different times in sometimes radically different ways, can be heard speaking to each other. Thus this broadly cultural history--a history of America in which literary means not only what is written but also what is voiced, what is expressed, what is invented, in whatever form. The focus is on the whole range of all those things that have been created in America, or for it, or because of it: poems, novels, plays, and essays, but also . . . Supreme Court decisions . . . : 'Made in America.'" Id. at xxiii-xxiv.).

May, Elaine Tyler, America and the Pill: A History of Promise, Peril, and Liberation (New York: Basic Books, 2010) (From the book jacket: "In 1960, the U.S. Food and Drug Administration approved the oral conceptive known as 'the pill.' Advocates, developers, and manufacturers believed that the convenient new drug would put an end to unwanted pregnancy, ensure happy marriages, and even eradicate poverty. Cold Warriors saw the pill as an antidote to the 'population bomb' that would ease tensions in the developing world and ward off the threat of communism. Researchers promised that a pill for men would follow on the heels of the pill for women. Observers saw the pill as the engine for the sexual revolution. But as renowned historian Elaine Tyler May reveals, the pill did none of those things. Rather, the oral contraceptive became a tremendous tool for women." "With the exception of Margaret Sanger and Katharine McCormick, two 'mother' of the pill, few of the pill's early promoters realized its potential to liberate and empower women. Women, however, understood the pill's true promise. They used it as a means to challenge the authority of doctors, pharmaceutical companies, religious leaders, and lawmakers. Bolstered by the feminist movement, women used the pill to gain control over their bodies and their lives." This is an interesting and worthwhile read. However, a reader might want to question the soundness of the argument that "Women . . . understood the pill true promise." Hindsight, and seeing the promise of the pill after the fact, is 20-20. It is less clear that women as a whole saw the true potential impact of the pill before that impact began to materialize. We tend to rewrite history to make ourselves more insightful that we in fact were. And, whereas a few individuals are forward thinkers with go intuitions and insights, more typically we are a clueless lot.).

McKibben, Bill, Eaarth: Making a Life on a Tough New Planet (New York: TimesBooks/Henry Holt, 2010) ("The U.S. military--besides worrying about sixty-three of its own coastal facilities that are in danger of flooding as sea levels rise--has begun planning for a future where 'climate change will require mass mobilizations of the military to cope with humanitarian disasters,' in the words of one researcher. The Defense department has to ask 'if our forces are adequate enough to respond to several Katrinas,' said retired U.S. Army general Paul Kern. We used to worry about having to fight two wars at once--now the military worries about 'a string of bad events, of landslides, tornadoes, and hurricanes.' In August 2009, the Defense Department reported that 'recent war games and intelligence studies' could 'destabilize entire regions.' The scenarios 'get real complicated real quickly,' one deputy assistant secretary of defense explained. The most lurid account of all came form a Pentagon-sponsored report forecasting possible scenarios a decade or two away, when the pressures of climate change have become 'irresistible--history shows that whenever humans have faced a choice between starving or raiding, they raid. . . . Here's the bottom line from that Pentagon report, a picture of a new planet that, at least as far as conflict goes, resembles nothing so much as the old one: 'Wars over resources were the norm until about three centuries ago. When such conflicts broke out, 25% of a population's adult males usually died. As abrupt climate change hits home, warfare may again come to define human life.' " "Well, that's a tad grim. Not really the career I trained for, fighting other adult males over the fall harvest. . . ." Id. at 84-85. It is difficult for each of us to view our individual selves as the problem . . . but, though we cannot individually solve the problem of climate change, our individual selves are the problem.).

Metz, Tamara, Untying the Knot: Marriage, The State, and the Case For Their Divorce (Princeton & Oxford: Princeton U. Press, 2010) ("Marriage--like the church in America--should be disestablished. . . . The state can achieve its legitimate public welfare goals--in this case, of protecting intimate associations and caregiving--without defining and conferring marital status. In a diverse, liberal democratic polity such as the United States, freedom, equality, fairness, and marriage itself would be better served were marriage disestablished and an ICGU ["Intimate Care Giving Union"] created." "Disestablishing marriage would mean that the state would withdraw from its current role in defining and controlling marriage; it would not confer marital status or use 'marriage' as a category for dispersing benefits or assigning legal obligations. As a legal category, marriage would be abolished. As a cultural status, marriage would be left to voluntary associations, to religious and cultural entities that would wield ethical authority more effectively and justly than does the state." "In place of marriage, we should create an ICGU status. In many ways, an ICGU status would look like marital status today. It would afford legal recognition from which would flow various legal presumptions (lines of rights and responsibility), protection (that is, from certain types of intrusion), and material benefits (tax benefits). As with marital status now, and ICGU status would be defined, conferred, and if, necessary, dissolved by the state. Unlike marriage, however, ICGU would be expressly tailored to protecting intimate care in its various forms. . . ." Id. at 134-135. This is a seriously flawed work. The arguments are mainly conclusory, faulty in their logic and, thus, unconvincing. Get rid of marriage, yes! But don't then, more or less, bring it back in an expanded form under a new name. Ninety-nine percent of today's marriages would qualify as ICGUs, so ICGUs are marriage with better perks and for more people. So, keep marriage, expanding who may legally marry, and place greater importance on the caregiving function that Metz has as her focus. Let's be honest, however. Except for a few groups of people at the extremes, most people do not care who other people marry, how many people a person marries (serially or concurrently), whether they are of the same or different gender, etc., provided whatever is done is done knowingly and freely (thus, for example, a minimum age requirement). What people care about is their tax dollars. American are not really opposed to paying taxes, even high taxes, provided the tax money goes to support people and programs for people just like them. What they don't want is to support people and programs for people who they view as the "other". Expanding the definition of marriage, or disestablishing marriage and replacing it with ICGUs would have the effect of shifting tax dollars from one small group to another larger group which includes those much-feared 'others'. The former fears that it will get short-changed. It is all about the money. What is required from Metz is the argument making the case that the liberal state should provide for a certain redistribution of wealth based solely, or primarily, on one's status as a caregiver. I suspect that most people would reject such redistribution as justified when unencumbered with the marriage/ICGU rhetorical baggage; with the baggage a bad argument simply sinks faster.).

Nash, Gary B., The Liberty Bell (New Haven & London, Yale U. Press, 2010) ("The Liberty Bell is only a sliver of American history. But few slivers have had such resonance. For more than a century, the Liberty Bell has captured Americans' affections and become a stand-in for the nation's vaunted values: independence, freedom, unalienable rights, and equality. It is virtually a touchstone of American identity because Americans have adopted it, along with the flag, as the symbol of justice, the rule of law, and the guardian of sovereign right." Id. at ix-x. "There comes a point when an icon is deeply etched in the public mind that anyone with an ounce of capitalistic energy and a nose for low-hanging fruit will jump to seek profit. In Philadelphia, the Liberty Bell's home, one can't go very far without encountering the commercial use of the bell. At the National League Phillies' baseball stadium (now Citizens Bank Park!), a gigantic Liberty Bell above the right field bleachers lights up and rings whenever a Phillie hits a home run. On the other side of town, the ponies ran at the Liberty Bell Racetrack from 1963 to 1986 (until it was demolished to make way for Walmart and other big-box outlets). Up the Schuylkill River at Douglasville, the Liberty Bell Motorsports Park and Campground caters to Harley-Davidson bikers, while across the Delaware River from Philadelphi at Mount Laurel, sailors go for blue ribbons at the Liberty Bell Regatta.' "All around the city--and elsewhere--for-profit outfits eagerly capitalize on the Liberty Bell. Hang out at the Liberty Belle nightclub near the Philadelphia Navy Yard. Or buy insurance from the Liberty Bell Life Insurance Company. Or deposit your paycheck with Liberty Bell Bank; get title insurance for your home from the Liberty Bell Agency; make your car's engine hum with Liberty Bell Oil; sign up (if you live in the Denver area) with Liberty Bell Telecom; mount up and ride to the sounds of the guns on a saddle from Liberty Bell Tack Shop; dress up your living room with new Liberty Bell Windows; get ready for Labor Day barbeque with top sirloin from Liberty Bell Steak Company; do a backyard makeover with walls and fountains from Liberty Bell Precast Stone Company; call in Liberty Bell Catering for your next party; or protect your house by calling the Liberty Bell Alarm Company. If you are lonely in Bear Creek, Montana, Liberty Belle will be your escort to whatever venue strikes your fancy." "Anything else needed? For your pet parrot, what about a nickel-plated Liberty Bell to dangle in the cage? A 'Liberty Bell Patriotic Handcrafted Cat and Dog Pillow Pad'? A Nestle chocolate Liberty Bell ('shelf life of one year if properly stored at room temperature')? A Liberty Bell luggage lock? A 'Liberty Bell March' ringtone? A Liberty Bell T-shirt announcing, 'I Came to Philly for the Crack' ($18.95, choice of eleven colors)? The 'Liberty Bell Classic Thong' from several undergarment manufacturers (the bell's image in front, the only space available)? For the sexual adventurous, the 'Liberty Bell Couples Toy' (available online or at most sex shops for about forty dollars)? A little less exotic are Liberty Bell nipples and navel rings. Or--for specialists only--a Liberty Bell patch from the California Gang Investigators Association promises untold rewards." Id. at 183-185.).

Newman, Katherine S. & Elisabeth S. Jacobs, Who Cares?: Public Ambivalence and Government Activism from the New Deal to the Second Gilded Age (Princeton & Oxford: Princeton U. Press, 2010) ("Progressives today often reminisce about the generosity of public spirit that allowed Roosevelt to hammer out the New Deal, and the openness of heart that allowed Johnson to build the Great Society. (Few remember Nixon's domestic policy achievements, and liberals are not often found waxing nostalgic over his administration's accomplishments, thanks to the Watergate debacle.) Yet our examination of mass opinion via pubic opinion pools and correspondence with the White House of both FDR and LBJ suggests quite a different story. A key thread that weaves its way between all three of these eras of social welfare policy development--the New Deal, the Great Society, and even the rise and fall of FAP--is the willingness of elites to reach beyond the boundaries of what the public opinion polls indicate Americans are prepared to accept." Id. at 155. "Underlying [V. O.] Key's and [James] Stimson's argument is a second basic assumption regarding the nature of public opinion that we view the evidence presented in preceding chapters as supporting as well: the general public holds a core of stable preferences, and it does not favor the conventional brother's keeper formula. Across near three-quarter of a century's worth of polls and letter we see limited enthusiasm for public beneficence." Id. at 157.).

Oreskes, Naomi & Erik M. Conway, Merchants of Doubt: How a Handful of Scientists Obscured the Truth on Issues from Tobacco Smoke to Global Warming (New York: Bloomsbury Press, 2010) (From the book jacket: "The U.S. scientific community has long led the world in research on public health and environmental science. Our scientists have produced landmark studies on the dangers of DDT, tobacco smoke, acid rain, and global warming. But at the same time, a small yet potent subgroup of this community leads the world in vehement denial of these dangers." "Merchants of Doubt tells the story of how a loose-knit group of high-level scientists and scientific advisors, with deep connections in politics and industry, ran effective campaigns to mislead the public and deny well-established scientific knowledge over four decades. Remarkably, the same individuals surface repeatedly: Some of the same figures who have claimed the science of global warming is 'not settled' denied the truth of studies linking smoking to lung cancer, coal smoke to acid rain, and CFCs to the ozone hole. 'Doubt is our product,' wrote one tobacco executive. These 'experts' supplied it." Though it is not the subject of Merchant of Doubts, don't you have to wonder about the lawyers who, out of ignorance but perhaps knowingly, used the faulty science to advance their clients' interests. Someone needs to write that book. "C. P. Snow once argued that foolish faith in authority is the enemy of truth. But so is a foolish cynicism." "In writing this book, we have plowed through hundreds of thosands of pages of documents. As historians during the course of our careers we have plowed through millions more. Often we find that, in the end, it is best to let the witnesses to events speak for themselves. So we close with the comments of S. J. Green, director of research for British American Tobacco, who decided, finally, that what his industry had done was wrong, not just morally, but also intellectually: 'A demand for scientific proof is always a formula for inaction and delay, and usually the first reaction of the guility. The proper basis for such decisions is, of course, quite simply that which is reasonable in the circumstances.' " "Or as Bill Nierenberg put it in a candid moment, 'You just know in your heart that you can't throw 25 million tons a year of sulfates into the Northeast and not expect some . . . consequences.' " Id. at 274. A must read book for budding young lawyers! You got to know stuff, a lit of stuff, and most of it is not law-stuff in the narrow sense of law. However, the book is in no way complete in its coverage. See the book review, "All Guns Blazing: The Misuse of Science," The Economist, June 19th 2010, at 86: "The book is good on drawing out the politics involved, and pointing out the contradictions. People who insisted that it was vital to look at worst-case scenarios when dealing with the Soviet Union proved remarkably averse to taking the same approach to environmental issues. It is rather less strong on the politics of the other side. In most campaigns the dissenters have argued that the American scientific establishment is tainted with an anti-corporate liberalism and is trying to impose socialism by the back door. One does not have to agree with this view, or to think that both sides are equally culpable, to feel that the ways in which science is used to generate assent for environmental action may sometimes be as interesting as the ways in which it is mobilised for dissent. Though the authors note as a curiosity that campaigns against secondary smoke predated the evidence that it did any harm, they show no desire to explore this seemingly reversed causality." Id.).

Patterson, James T., Freedom Is Not Enough: The Moynihan Report and America's Struggle over Black Family Life from LBJ to Obama (New York: Basic Books, 2010) (From the book jacket: "Although it has continued to spark angry reactions, its arguments have proved startlingly prescient, and have framed a host of debates about welfare and family policies that have roiled American culture for nearly half a century.").

Pollock, Mica, Because of Race: How Americans Debate Harm and Opportunity in Our Schools (Princeton & Oxford: Princeton U. Press, 2008) ("For this book, I have analyzed hundreds of arguments over racial discrimination in public schools that I encountered while working a the U.S. Department of Education's Office for Civil Rights (OCR) from 1999-2001. . . . All centered on a longstanding, still-raging debate within American education: Which opportunity denials experienced by students of color should be remedied?" "It is not surprising that the debate raged at OCR. Like other OCR employees, I was paid to determine which harms to children in their daily lives in public schools 'count' in federal legal terms as harms demanding remedy. What surprised me at OCR, and during data analysis post facto, was to find just how often both educators and OCR people argued that fewer harms experienced by students of color should be remedied., rather than more. I wrote this book to examine this response empirically, and to examine how debates over serving students of color exposed conflicting American analyses of opportunity denial and harm worth remedying." Id. at 1. "Many observers call this the 'post-civil rights era.' The phrase is meant to describe more than our temporal location, although the mass marches and legislative victories of the civil rights movement are now to many a distant memory. It is meant to characterize an era in which white Americans in particular resist specific measures to equalize opportunity for people of color, even while now stating shared beliefs in the basic premise of equal opportunity. On surveys, researchers now find some people of color resisting specific policies designed to equalize opportunity racially for groups other than their own as well. It is also meant to characterize an era in which people of color express profound pessimism about the possibility of ever enjoying equal opportunity using civil rights strategies; in which courts have almost fully gutted such expansive efforts at equalizing opportunity as school desegregation, and largely attack the 'very principle of racial antidiscrimination' central to civil rights law as itself 'racist' in its use of racial categories to assess and equalize opportunities in schools, workplaces, and other social institutions; in which public statements of any remaining support for racial equal opportunity policies qualify such support a s being both tentative and limited; and in which 'civil rights' tools designed to fight intentional Jim Crow segregation are inadequate to fulling address contemporary structures of racial inequality." "Those coming to OCR demanding everyday justice in education circa 2000 attempted, in this complex climate, to use civil rights' basic logic and OCR's civil rights leverage to demand still that real people in specific locations provide specific forms of equal opportunity to children. Title VI complainants alleging racial discrimination circa 2000 demanded equal opportunity as a still-existing American requirement. . . . They analyzed not just endpoint statistics but also the treatment of children at specific moments in their educatioal lives, as well as their cumulative treatment and experiences throughout their educational careers. They also focused on the need to improve the details of children's ongoing daily experiences in schools and districts, in addition to providing basic resources and opportunities to learn. . . ." "[a]ll of these specific analyses prompted resistance, and all such resistance reduced the opportunities and assistance provided to children. In effect, as people resisted legal 'discrimination' allegations or federal intervention, we repeatedly called for doing less rather than more to provide children of color with opportunities in schools. In doing so, we implied disturbingly that children of color were not 'worth' the opportunity provision . . .; we even exhibited a fundamental 'lack of empathy' for these children . . . and we implied that well-educated children of color were not in fact in the common interest. . . . [M]y experience at OCR convinced me that some of our resistance was also particular to a 'fragmented' era, in which it seems harder than ever to determine who denies which opportunities to which children. Ironically, given this very fragmentation, advocates will have no choice but to figure out ways to draw in the resistant listeners, getting them to help analyze harm and opportunity in unprecedented detail." Id. at 175-177. A sub-theme here is that, in the age of the increasingly bureaucratic administrative state and increasingly bureaucratic private sector, fewer and fewer decisionmakers are held accountable for the consequences of their decisions and actions because they are able to fit their decisions, their actions and themselves within the black-letter law. Thus, many decisions and actions, discriminatory in their consequences, are legally permitted and, thereby, giving rise to no legal or equitable remedy. Can law be respected when it is formally just (e.g., treating everyone exactly the same) but in actuality it is unfair because the consequences of that same treatment is radically and significantly different? Can a democracy survive under those circumstances?).

Pollock, Mica, Colormute: Race Talk Dilemmas in an American School (Princeton & Oxford: Princeton U. Press, 2004) ("Given the amount of worrying that race-label use seems to require in America, it is perhaps unsurprising that many Americans have proposed we solve our 'race problems' by talking as if race did not matter at all. We are, in fact, in the midst of major battles in the United States about the very future of race talk itself--and those controversies are a key context for this book. . . . Indeed, some public figures are now arguing loudly that even using race labels publicly is tantamount to reproducing racism itself. . . ." Id. at 2. "As Lawrence Blum . . . notes of such 'colorblind' policy, 'A policy that makes explicit reference to race, or racial identity, is taken to stand condemned by that fact alone'. . . . Indeed, 'colorblindness' can often be more accurately described as a purposeful silencing of race words themselves. [California's] Proposition 209 effectively ordered district and university people to actively refuse to talk in racial terms. Yet actively deleting racial labels from applications and enrollment plans certainly didn't mean the disappearance of racial patterns in education. Policymakers could not stop Californians from viewing each other racially, or outlaw race as a system of categorization structuring people's social and economic lives. Nor could they outlaw daily racial preferences in school hallways and classrooms and at lunch tables. Instead, policymakers simply banned race words from the official policy analysis--they deleted the race labels that appeared in school applications, program descriptions, and brochures. As the mostly-white-and-Asian freshman enrollments at the UC schools after Proposition 209 quickly made clear, however, officially erasing race words had far from erased racial patterns at the state's universities. Indeed, the insistence on being colormute had actually allowed racial disparities in pre-college opportunity to proceed unhindered--helping increase racial disparities in UC enrollment and hinting that deleting race words can actually help make race matter more." Id. at 3. "To talk more skillfully about race, then, I suggest that we frame all our conversations about racial orders with honest, critically conscious discussion of race talk itself and its dilemmas. If we talk more in our workplaces and educational settings about how we talk about race, we might learn together to treat race itself as a paradoxical human-made system of differentiation that we need alternatively to oppose and actively wield. That is, we might realize that we must both resist and actively enlist race labels in order to be truly antiracist. We might also understand that we must choose well when to treat and not treat each other as racial beings, for navigating this core choice is actually the only way to move forward to racially equality." Id. at 218. Though Pollock's discussion focuses on the context(s) of education and education policy, one should readily appreciate the broader social contexts she implicates. For example, a discussion of the American criminal justice systems void of race talk would be almost meaningless. Yet to mention race is to run the risk of being accused of 'playing the race card'. Thus the dilemma of race talk in the American criminal justice system.).

Posner, Eric A., & Cass R. Sunstein, Law and Happiness (Chicago & London: U. of Chicago Press, 2010) (On contentment, locate and listen to Van Morrison singing "Village Idiot".)

Rakove, Jack, Revolutionaries: A New History of the Invention of America (Boston & New York: Houghton Mifflin Harcourt, 2010) ("As he later explained in Notes on the State of Virginia, Jefferson had further reasons for making historical literacy the foundation of a common education. Rather than 'putting the Bible and Testament into the hands of the children, at an age when their judgments are not sufficiently matured for religious enquiries, their memories may here be stored with the most useful facts from Grecian, Roman, European and American history.' Substitute stuffed for stored and this sounds like the formula that regularly deadens students to the delights of historical study. But the kinds of historical facts that Jefferson deemed useful and his ideas of education carry over into the subject bill 82, the bill for religious freedom. Though its formal purpose was to disestablish the Anglican Church, its deeper animus was to free individuals from any obligation to adopt religious views they found unpersuasive. In Jefferson's view, all religious belief was finally a matter of individual opinion. The history of religious establishments was an unrelenting story of corrupting alliances between churchmen and rulers, abusing their power to impose their opinions and modes of thinking on others. This too was a form of tyranny, as inimical to liberty as anything else the Stuarts and other execrable autocrats had attempted. For Jefferson as for Locke, religion was not a matter of children inheriting the faith of parents. It was instead a subject of inquiry, and no one could simply adopt another's convictions. The point of reading history first, scripture later, was to empower individuals to judge the claims of all religions by teaching them that much of what passed for orthodoxy in other times and places depended on the impure alliance of church and state." Id. at 307. (Also, see Virginia DeJohn Anderson, "Creatures of the Revolution," NYT Book Review, Sunday, 7/25/2010.).

Ravitch, Diane, The Death and Life of the Great American School System: How Testing and Choice Are Undermining Education (New York: Basic Books, 2010) ("How can I distinguish between thinking like a historian and seeing like a state? A historian tries to understand what happened, why it happened, what was the context, who did what, and what assumptions led them to act as they did. A historian customarily displays a certain diffidence about trying to influence events, knowing that unanticipated developments often lead to unintended consequences. A policymaker, on the other hand, is required to plan for the future and make bets about a course of action that is likely to bring about improvements. Policymakers have a theory of action, even if they can't articulate it, and they implement plans based on their theory of action, their guess about how the world works. Historians are trained to recognize assumptions and theories and to spot their flaws." "Market reforms have a certain appeal to some of those who are accustomed to 'seeing like a state.' There is something comforting about the belief that the invisible hand of the market, as Adam Smith called it, will bring improvements through some unknown force. In education, this belief in market forces lets us ordinary mortals off the hook, especially those who have not figured out how to improve low-performing schools or to break through the lassitude of unmotivated teens. Instead of dealing with rancorous problems like how to teach reading or how to improve testing, one can redesign the management and structure of the school system and concentrate on incentives and sanctions. One need not know anything about children or education. The lure of the market is the idea that freedom from government regulation is a solution all by itself. This is very appealing, especially when so many seemingly well-planned school reforms have failed to deliver on their promises." "The new corporate reformers betray their weak comprehension of education by drawing false analogies between education and business. They think they can fix education by applying the principles of business, organization, management, law, and marketing and by developing a good data-collection system that provides the information necessary to incentivize the workforce--principals, teachers, and students--with appropriate rewards and sanctions. . . . " Id. at 11. "I grew increasingly disaffected from both the choice movement and the accountability movement. . . . As I watched both movements gain momentum across the nation, I concluded that curriculum and instruction were far more important than choice and accountability." Id. at 12. "It is time, I think, for those who want to improve our schools to focus on the essentials of education. We must make sure that our schools have a strong, coherent, explicit curriculum that is grounded in the liberal arts and sciences, with plenty of opportunity for children to engage in activities and projects that make learning lively. We must ensure that students gain the knowledge they need to understand political debates, scientific phenomena, and the world they live in. We must be sure they are prepared for the responsibilities of democratic citizenship in a complex society. We must take care that our teachers are well educated, not just well trained. We must be sure that schools have the authority to maintain both standards of learning an standards of behavior." Id. at 13-14. Also see the review, Alan Wolfe, "The Education of Diane Ravitch," NYT Book Review, Sunday, 5/16/2010.).

Ravitch, Diane, The Language Police: How Pressure Groups Restrict What Students Learn (New York: Knopf, 2003) ("For censors on both the right and the left, reading is a means of role modeling and behavior modification. Neither wants children and adolescents to encounter books, textbooks, or video that challenge their vision of what was or what might be, or that depict a reality contrary to that vision." Id. at 63. "What then are these English language arts standards, and what do they recommend instead of literature? . . ." "Virtually every state says that students should read a variety of genres for a variety of purposes. Most suggest that students should 'self-select books and stories' by setting their own purposes and drawing on their own personal interests. What matters most in ELA is how students feel and respond to the text. The student, not the work of literature, is at the center of the reading experience. Whatever literature has got say to readers seems to be unimportant, as compared to how readers feel about it." "Most state standards say that literature is to be read by students for a social or political message, as though every poem or novel is meant to be a social or political commentary rather than an expression of the writer's emotional, spiritual, or aesthetic concerns. Other than Massachusetts, none encourages the reading of any core group of literary works that every educated person should absorb in order to understand the ideas of our civilization and its literary tradition. Nowhere in the state or national standards did I find any discussion of the intrinsic joy and aesthetic understanding that one might gain by reading a stirring poem, nothing about how a beautiful novel can make you cry or laugh or reflect. The study of literature as knowledge and as art is either missing from the standards or has been supplanted by utilitarian concerns." Id. at 124. "The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." --Justice Louis D. Brandeis.).

Ravitch, Diane, Left Back: A Century of Failed School Reforms (New York: Simon & Schuster, 2000) ("The aim of this book is to trace the origins of America's seemingly permanent debate about school standards, curricula, and methods. In particular, it recounts the story of unrelenting attacks on the academic mission of the schools. As enrollment in school increased in the early twentieth century, there was a decided split between those who believed that a liberal education (that is, an academic curriculum) should be given to all students and those who wanted such studies taught only to the college-bound elite. The latter group, based primarily in the schools of education, identified itself with the new progressive education movement and dominated the education profession in its formative years." "Thinking they could bridge the gap between school and society and make the schools socially useful, pedagogical theorists sought alternatives to the academic curriculum for non-college-bound students. Curricular differentiation means at academic education or some, a nonacademic education for others; this approach affected those children--mainly the poor, immigrants, and racial minorities--who were pushed into undemanding vocational, industrial, or general programs by bureaucrats and guidance counselors who thought they were incapable of learning much more. Such policies, packaged in rhetoric about democracy and 'meeting the needs of the individual child,' encouraged racial and social stratification not only was profoundly undemocratic but was harmful, both to the children involved and to American society." "As used in this book, the term 'academic curriculum' does not refer to the formalistic methods, rote recitations, and student passivity about which all reasonable educators and parents have justly complained. Nor does it refer only to teaching basic skills. It refers instead to the systematic study of language and literature, science and mathematics, history, the arts, and foreign languages; these studies, commonly described today as a 'liberal education,' convey important knowledge and skills, cultivate aesthetic imagination, and teach students to think critically and reflectively about the world in which they live." Id. at 14-15. Unfortunately, today many college-bound students are not receiving a liberal education. A few might, if they are very lucky, get exposed to a liberal education in college, but that is unlikely. Toward the end of the Spring 2010 term a friend, who teaches history to undergraduates, told be about a student who declared that he did not need to know history because he is a business major. An incredible statement for even a business major given the U.S. economy still yet to fully recover from the worst meltdown since The Great Depression, and not to mention the woeful state of the global economy. "The conventional story of the twentieth century told by historians of education is about the heroic advance of the progressive education movement, how it vanquished oppressive traditionalism in the classroom, briefly dominated American schools, then lost its vitality and withered away in the mid-1950s. The paradigm for this telling of the story is Lawrence A. Cremin's magisterial work The Transformation of the School: Progressivism in American education, 1878-1957. This is not a story told in this book. The progressive education movement did not disappear in the 1950s; at the very time Cremin thought he was writing its obituary, the movement was at a low ebb, but it sprang back to life in the early 1960s. More troubling, it sprang back to life with anti-intellectualism at the forefront." "In Cemin's important book, ant-intellectualism appears as an occasional, unfortunate by-product of the progressive education movement for much of the century. However, this book argues that anti-intellectualism was an inescapable consequence of important strains of educational progressivism, particularly the versions of progressivism that had the most influence on American public education. Cremin and other historian of progressivism gave short shrift to the movement's critics, such as William Torrey Harris, William Chandler Bagley, and Isaac Kandel; in this book they are treated as major figures in American education whose ideas were balanced and sound, if not often heeded, and whose philosophy remains central to the reconstruction of American education today." Id. at 16. What does this have to do with law or legal education? Well, much of legal education (that is, its academic curriculum, its liberal education aspect) is suffering the debilitating effects of a sustained siege by the forces of a very anti-intellectual progressivism. It latest guise is the Carnegie Foundation for the Advancement of Teaching's report, Educating Lawyers: Preparation for the Profession of Law.).

Remini, Robert V., At the Edge of the Precipice: Henry Clay and the Compromise that Saved the Union (New York: Basic Books, 2010) ("The Compromise of 1850 is a prime example of how close this nation came to catastrophic smash-up, and the way the power brokers of that period avoided that disater--just in time. The Compromise gave the North ten years to build its industrial strength and enable it to overpower the South when war finally broke out. It also gave the North ten years to find a leader who could save the Union. His name: Abraham Lincoln." Id. at xiii. Also, see the review, Andrew Cayton, "To Save the Union," NYT Book Review, Sunday, 7/4/2010.).

Rivlin, Gary, Broke, USA: From Pawnshops to Poverty Inc.--How the Working Poor Became Big Business (New York: Harper Business, 2010) (If you think theft is illegal in America, read this book and learn of the various forms of legalized theft. "In 1998, Senator Charles Grassley of Iowa, the Republican chairman of the Senate Special Committee on Aging, held a one-day hearing into subprime mortgage lending. The title he chose for the event left no doubt about his sympathies: 'Equity Predators: Stripping, Flipping, and Packing Their Way to Profits.' Among those testifying on Capital Hill were Ormond and Rosie Jackson, an elderly Brooklyn, New York, couple living on Social Security, whose loan had been 'flipped' so many times that, six years after a saleman knocked on their door promising that new windows could be theirs for just $43 a month for fifteen years, they owed $88,000 and were facing foreclosure --the 'stripping' of their equity. Helen Ferguson, a seventy-six year-old widow from Washington, D.C., living on a monthly $504 Social Security check, told a similar story, except that in her case it wasn't a knock on the door but an ad she saw on television pitching low-interest home-improvement loans. Prior to that, her mortgage payment had been $229 a month, but--in part because her loan had been 'packed' with an expensive credit insurance policy that a woman living alone did not need--five years later she had a house payment of $810 per month. 'My perfect customer,' a former salemans for several subprime lenders told the senators, 'would be an uneducated woman who is living on a fixed income--hopefully from her deceased husband's pension and Social Security--who has her house paid off, is living off credit cards and having a diffiuclt time keeping up with her payments." Id. at 136-137.).

Rhode, Deborah L., The Beauty Bias: The Injustice of Appearance in Life and Law (Oxford & New York: Oxford U. Press, 2010) ("Conventional wisdom understates the advantages that attractiveness confers, the costs of its pursuit, and the injustices that result. Many individuals pay a substantial price in time, money, and physical health. Although discrimination based on appearance is by no means our most serious form of bias, its impact is often far more invidious than we suppose. That is not to discount the positive aspects of appearance-related pursuits, including the pleasure that comes from self-expression. Nor is it to underestimate the biological role of sex appeal or the health benefits that can result actions prompted by aesthetic concerns. Rather, the goal is to expose the price we pay for undue emphasis on appearance and the strategies we need to address it." Id. at 2. "On the reform agenda of women's rights advocates, appearance does not deserve top billing, But in terms of public recogntion of a problem, it remains a major challenge. The kind of attention people once gave tothe state of their souls, they now give to the state of their bodies. And too often, the result is far from constructive. . . ." Id. at 160-161 (italic added). Also see Emily Bazelon, "Just One Look," NYT Book Review, Sunday, 5/23/2010. This is an interesting read, though I think most readers will gloss over Rhode's central point and, instead, use her discussion to reinforce views they already have. I would alse suggest that a key point, one not really explored by Rhode, is captured in the sentence I have place in italic. One of the ways--and, I would argue, it is the principal way--that Western culture has gone wrong pertains to the elevation of the material over those of (for lack of a better word) the soul. The obsessed emphasis on material acquisition, improvement, and newness cannot but elevate one particular thing to the foreground. That thing is the human body. Or, to be more precise, our individual human bodies. It is, in a sense, worship of the material human body, at the expense of the immaterial human spirit, human soul, human intellect, etc., that defines contemporary Western society . . . or, at least, in America. As we increasingly live in a quasi police state in which we are all being constantly observed on countless surveilance cameras, not to mention by or through the various internet-based social networks, one of the interesting questions concerns whether we will increasingly try to hide ourselves in plain sight. That is, we will strive to make ourselves unattractive, not in the 'ugly' sense (because even the ugly attracts attention) but in the 'boring' sense. The goal being, though literally seen, to go unnoticed. Instead of striving for beauty, we will strive for plainness. ).

Scarry, Elaine, Rule of Law, Misrule of Men (Boston Review Book) (Cambridge, Massachusetts & London, England, 2010) ("From the founding of this country the phrase 'a government of laws and not of men' has always meant that the country cannot pass open-ended laws that will be good if the governors happen to be good, and bad if the governors happen to be bad. The goal has always been to pass laws that will protect everyone regardless of the temperament and moral character of the individual governors. The country, as Justice David Davis famously observed in 1866, 'has no right to expect that it will always have wise and humane rulers.' That is why it is crucial to pass good laws. And crucial, also, to repeal bad ones." Id. at 31-32.).

Shesol, Jeff, Supreme Power: Franklin Roosevelt vs. The Supreme Court (New York & London: Norton, 2010) ("Yet the Court is not a vacuum. . . . Still, the myth of the Court as a 'vehicle of revealed truth' . . . , incapable of doing that which the law and the facts did not require, had and still has resilience. To acknowledge that external events play a role in decisions is frightening to many, for it suggests that the judicial system is, in the end, not one of laws but of men--and thus vulnerable to the prejudices and whims and base instincts of men." "But this is a false dichotomy--that a nation is governed either by law or by men, rather than a dialectic between the two, It is one of the many unhelpful antitheses that prevailed at the time and persist to this day, among them the idea that the Court is either a purely legal institution or a political body; that the framers' intentions are either easily discernible or always ambiguous (or even irrelevant); that legal doctrines are either preordained by the Constitution or are artificial constructs; and that justices are either impervious to social, political, and cultural influences or utterly at their mercy. The reality, in each case, is more complex." Id. at 523. This book will deservedly win a Pulitzer. Also see Alan Brinkley's review, "With Justices for All," NYT Book Review, 3/28/2010.).

Strauss, David A., The Living Constitution (Inalienable Rights Series) (Oxford & New York: Oxford U. Press, 2010) (Strauss argues why we should reject originalism in all it forms. Then, he sets out a meaningful understanding of constitutional common law. "For the most part, there are no clear rules in a common law system. The common law is . . . not algorithmic. The better way to think about the common law is that it is governed by a set of attitudes: attitudes of humility and cautious empiricism. These attitudes, taken together, make up a kind of ideology of the common law. It's an ideology that was systematically elaborated by some of the great common law judges of early modern England [which, of course, are sadly no longer read by today's law students or even those who teach those law students]. The most famous exponent of this ideology was the British statesman Edmund Burke, who wrote in the late eighteenth century. Burke, a classic conservative, wrote about politics and society generally, not specifically about the law. But he took the common law as his model for how society at large should change, and he explained . . . the underpinnings of that view." "The first attitude at the foundation of the common law is humility about the power of individual human reason. It is a bad idea to try to resolve a problem on your own, without referring to the collective wisdom of other people who have tried to solve the same problem. That is why it makes sense to follow precedent, especially if the precedents are clear and have been established for a long time. . . . It is an act of intellectual hubris to think that you know better than that accumulated wisdom." "The second attitude is an inclination to ask 'what has worked in practice?' It is a distrust of abstractions when those abstractions call for casting aside arrangements that have been satisfactory in practice, even if the arrangements cannot be fully justified in abstract terms. The world is a complicated place; no body of theory can fully account for it. If a practice or an institution has survived and seems to work well, those are good reasons to preserve it; that practice probably embodies a kind of rough common sense, based in experience, that cannot be captured in theoretical abstractions. Id. at 40-41.).

Sugrue, Thomas J., Not Even Past: Barack Obama and the Burden of Race (Princeton & Oxford: Princeton U. Press, 2010) ("To understand Obama's life and times requires an examination of race and racial politics. It is safe to say that few domestic issues have been more controversial in late twentieth- and early twenty-first-century America. And few issues have generated more passion among scholars and journalists. Debates about civil rights, black power, race consciousness, and inequality are often couched in predictable and analytically problematic formulations that reflect the moral dualism that still shapes our understanding of race. The first binary--'race versus class'--reflects much scholarship and liberal journalism about race. Either race matters as a dominant force or it is a screen--or a form of false consciousness--that masks far deeper inequalities of class. This is a simplistic formulation that downplays the ways that racial and economic disadvantages are fundamentally intertwined, and fails to address how the American economy generates inequalities that affect people regardless of their background but are still disproportionately borne by people of color. A second binary--with special hold in public discourse--is 'racism versus color blindness.' This contrasts a pathology and a principle, a flawed reality and an ideal. But it, too, does not stand up to close scrutiny. . . . There are stone-cold racists in America, and there are people who believe that they are wholly free of prejudice. Ultimately, the most enduring racial inequalities in the United States today are not the consequences of conspiracy or intention, or even the unconscious prejudice that neuropsychologists argue exists in the amygdala, rather they stem form the long-term institutional legacies of economic and public policies that have systematically disadvantaged African Americans and, when left unaltered, continue to do so in key realms of American life today. The third binary is 'pessimism versus optimism.' Either America is still a profoundly racist society, or we have mostly overcome past racial injustices. Any clear-eyed examination of race in modern America mus recognize the changes that have transformed the life chances of African Americans in the United States since the mid-twentieth century, and that enable Barack Obama's remarkable ascent through some of America's most prestigious institutions and ultimately to the White House--most of them the result of grassroots activism, litigation, and public policy innovation. And it must also account for what even an cursory review of census data, opinion surveys, and health, educational, and housing statistics reveals: namely, that racial gaps are deep and persistent in American life. Those statistics, he way that Obama understands and interprets them, and the way that Americans in general make sense of them, are at the heart of this book." Id. at 7-8. "Obama represents the paradox of race in early twenty-first-century America: he embodies the fluidity and opportunity of racial identity in a time of transition. He also capture the ambiguities of a racial order that denies racism yet is rife with racial inequality; that celebrates progress when celebration is not always warranted. He contains within his own thought contradictory positions that remain in tension with each other. And he brings to the table an openness to grapple with the still-unresolved history of race and rights, and the constraints of an elected official averse to controversy. . . ." Id. at 136. This is a very worthwhile read.).

Tushnet, Mark, Why the Constitution Matters (Why X Matters) (New Haven & London: Yale U. Press, 2010) ("Why does the Constitution matter? If you've picked up this book, you probably already have an answer to this question. The Constitution matters, you're likely to think, because it protects our fundamental rights. The answer I provide here is different: The Constitution matters becasue it provides a structure for our poltics. It's politics, not 'the Constitution,' that is the ulimate--and sometimes the proximate--source for whatever protection we have for our fundamental rights." Id. at 1. "People disagree about what our fundamental rights are, and no one really beleives that whatever the Supreme Court says those rights are is the last word." Id. at 1-2.) "What the Supreme Court says our rights are depends in a complicated way on the state of our politics." Id. at 4. "Most of the things most American think are our most important policies are directly the result of political choices, and the Supreme Court has almost nothing to say about them." Id. at 9."The real question, then, is not why the Constitution matters, but how it matters. The Constitution matters because politics matters. The Constitution affects politics in many ways, most of those indirect, but we shouldn't over estimate how much it matters." Id. at 17. This is a short, very worthwhile read!).

Vollmann, William T., Kissing the Mask: Beauty, Understatement and Femininity in Japanese Noh Theater, With Some Thoughts on Muses (Especially Helga Testorf), Transgender Women, Kabuki Goddesses, Porn Queens, Poets, Housewives, Makeup Artists, Geishas, Valkyries and Venus Figurines) (New York: Ecco, 2010) (From the bookjacket: "What is a woman? To what extent is femininity a performance?" "How I love my life in this floating world! If I go drinking with the go-between, tomorrow my eyes will be as red as the lamps at Gion Shrine; but for that there's always green tea, powdered and whisked to a froth, accompanied by a perfect little pistachio sweet. I'm a glutton, a plump middle-aged man now beginning to understand the old lechers who clutch at beauty, not that I'll do that; I 'm proud, so I'll watch grace in theaters, bars, teahouses; I'll invent a book about representations of feminine beauty and write off every geisha on my taxes . . ." Id. at 3.)

West, Rebecca, Black Lamb and Grey Falcon: A Journey through Yugoslavia [1941] (New York & London: Penguin Books, 1994) ("I had always wondered whether people who have a primitive attitude towards fighting, who regard it as a necessary and noble activity, were perhaps spared the full realization of the piteousness of death in battle. Now I knew, and life was by so much more disagreeable; and I had a further testimony to the fatuousnesss of such pacifism as points out the unpleasantness of war as if people had never noticed it before. I regretted the amateuterishness of much in modern thought, but realized that this was only proof of the recalcitrance of the material on which thought must work. On my journey home I felt unequal to sharing the vision of Dragutin which constantly pierced to the primordial disharmony of life which I would have liked to forget. Driving down through the coulourless yet radiant hills he came to a stop that we might see in the sky above us an angry monogram which was an eagle fighting with a stork. Later we got out and drank from a spring that leaped out of rock to join the Black Drin, and Dragutin shot out his finger at an emerald lizard a foot long that leaped through the grass between my feet. 'It is poisonous,' said Dragutin. 'It is not,' said Constantine, but I knew he was only being patriotic. Back in my seat, I fled from this dangerous universe into sleep." Id. at 774-775.).

Wolf, Susan, Meaning in Life and Why It Matters introduction by Stephen Macedo; commentary by John Koethe, Robert M. Adams, Momy Arpaly, & Jonathan Haidt (Princeton & Oxford: Princeton U. Press, 2010) (From the book jacket: "Most people, including philosophers, tend to classify human motives as falling into one of two categories: the egoistic or the altruistic, the self-interested or the moral. According to Susan Wolf, however, much of what motivates us does not comfortably fit into this scheme. Often we act neither for our own sake nor out of duty or an impersonal concern for the world. Rather, we act out of love for objects that we rightly perceive as worthy of love--and it is these actions that give meaning to our lives. Wolf makes a compelling case that, along with happiness and morality, this kind of meaningfulness constitutes a distinctive dimension of a good life. . . ." This is an interesting, short, read. However, I am not sure how broad that space called 'meaningfulness' is in people's lives. I suspect that (perceived) self-interest counts for an overwhelming majority of what motivates people, with (real or pseudo) altruism, morality, etc., accounting for just about all of the remaining motivation. Meaningfulness as a motive is, I think, a luxury, for most people, and merely an afterthought. Why? Meaningfulness assume that a person is trying to live a examined life. Few people attempt to live an examined life, and the few that do try don't try very long or very hard. This is not a criticism, it is just a reality. Life is what happens when you are doing other things (e.g., earning a living, dealing with the petite bureaucracies (and the petty bureaucrats that infest those bureaucracies), raising children, fussing with your spousal unit about money, cleaning the junk out of the garage). Living a meaningful life requires time for reflection, and in this 24/7/365, twenty-first-century life, rare is there time for quiet reflection. Even one's exercise or workout class, for example, has become just another task . . . a "class". In recent years, as myself and more of the people with whom I have daily contact attain middle-age (if not late-middle-age), I find people beginning to examine their lives for meaning. This seems to be grounded in their recognizing that what was motivating them in the past is no longer motivating them now (e.g., they realize they have gone as far up as they will or can go on what ever ladder they were trying to climb, the kids are grown, independent, and gone, and one can only play so many round of golf per day). Many people seem to turn to religious, while I turn further away from it. I turn to philosophy . . . and to history.).