SOME THOUGHTS ON DEMOCRACY

Guha, Ramachandra, ed., Makers of Modern India (Cambridge, Massachusetts, & London, England, 2011) (In Makers of Modern India's "Part Four, Debating Democracy," the following passage from C. Rajagopalachari's "Wanted: Independent Thinking" appears. "No thinking of civil life, no 'ism' will work satisfactorily unless the citizens in the democracy are willing to undertake the responsibility of thinking and judging for themselves. . . . Instead of independent thinking and free judgment, the manners of parrots have been growing among men, even among those rightly credited with intellectual capacity of a high order. They repeat the words uttered by the established guardians without paying thought to the meaning and the implications. I am not objecting to any particular opinion but to the parrot culture that has seized the country." Id. at 402. "What I plead for is a climate of independent thinking among citizens. It is no good imagining it is there when we see no sign or symptom of it. Without this essential accompaniment, self-government through democracy will prove itself to be a house of cards." Id. at 403. "Democratic civil life calls for independent thinking among the citizens--among the governed as among the governors, Criticism and reply, and counter-reply makes for health in the air. Diseases of corruption and intrigue are by a process of natural hygiene driven out in such an atmosphere. Burke said he liked 'clamour'. 'I am not of the opinion,' he said, 'of those gentlemen who are against disturbing the public repose. The fire-bell at midnight might disturb your sleep, but it keeps you from being burned in your bed'." "If subservience and slavish adulation takes the place of independent thinking and criticism is never resorted to but with fear and trepidation, the atmosphere quickly breeds the political diseases peculiar to democracy. . . . We need an Opposition that thinks differently and does not just want more of the same, a group of vigorously thinking citizens which aims at the general welfare, and not one that in order to get more votes from the so-called have-nots offers more to them than the party in power has given, an Opposition that appeals to reason and acts on the firm faith that India can be governed well as a democratic Republic, and that the have-nots will not reject sound reason." Id. at 403-404. Food for thought: High on the list of disheartening attributes of Americans is their tradition of anti-intellectualism and, as a consequence, their tendency toward group think. You see it demonstrated time and time again on talk radio, in television news reduced to entertainment, in the boardrooms of corporations where even so-called 'independent, outside board members' are cronies of the CEOs who championed their election to the board of directors, in universities and colleges where academic freedom is dying (if not already dead) and faculty-governance is nonexistent, etc. When in their day-to-day nonpolitical life people don't engage in independent thinking, it is not reasonable to expect that they will engage in independent thinking when it comes to politics. Americans think of themselves as 'free and independent people' when, in fact, they are group-thinking sheep. What "Opposition" exist is America is marginalized and silenced, for to simply raise questions, such as "What alternatives were considered?, Were any alternative considered? Might this be a viable alternative?, is considered an act of disloyalty and disgruntlement. Strength requires resistance. Good decision making requires multiple perspectives, including potential opposing perspectives. Good government, good management, etc., requires independent thinking. Yet, for the most part, all we get is recycled group think.).

Kristol, Irving, The Neoconservative Persuasion: Selected Essays, 1942-2009 (New York: Basic Books, 2011) (From the essay "High, Low, and Modern: Some Thoughts on Popular Culture and Popular Government" (1960): "It is often said that 'mass culture' is the price we pay for democracy. That all depends, of course, on what we mean by democracy. If we mean by democracy nothing more than government which is freely consented to by the people, then this may well be so. In that case, one can either deny that 'mass culture' poses any problem at all, and attribute our unease to the influence of 'pre-democratic' standards of taste and culture upon our laggard imaginations; or one can seek reassurance in the belief that 'mass culture' is only a passing phrase of democratic evolution, and that in due course of time the level of popular taste and judgment will rise to nobler heights. Both alternatives involve an act of faith in The People, resting on the premise that what emerges from them is necessarily good and/or necessarily self-correcting." "This may be called the populist religion of democracy, and there is no question but that it is the most common in our day. This can be seen from the frequency with which our publicists and statesmen make appeal to 'the democratic faith' and 'the democratic creed' as against other faiths and creeds, notably communism. It is also interesting to observe that when the advertising and television industries feel the need to perform acts of 'public service' they conceive of their mission as 'selling' this democratic faith to all and sundry." "Like all political religions, this one is relatively invulnerable to rational examination and critique. But, again like all political religions, it has to face the test of reality. And the reality seems to be that this idea of popular government, insofar as it is most loyally put into practice, has a tendency to become unpopular. There is certainly more open dissatisfaction with 'the democratic faith' in America today than there was fifty years ago, when the barest hint of skepticism was tantamount to treason. Nor is there anything paradoxical about this state o f affairs; it simply reflects the fact that what people want (or think they want) is not inevitably identical with, and may even contradict, what they need (i.e., what will truly satisfy them)." "But this is not the only conception of democracy, And though it is now sovereign as an ideology it is not the idea on which democracy in America and Britain was founded and which to a greater or lesser degree still rules actual operations of government, That this is so in the United States is demonstrated by pointing to the existence of the Supreme Court--nine judges, appointed for life, with the power to nullify legislation (no matter how popular) that, in their considered opinion, is 'unconstitutional' (a concept more vague than precise). There can be no doubt that, were a constitutional convention to be held today, no such thing as a Supreme court could be set up; it would be regarded as flagrantly 'undemocratic.' . . . Yet the Supreme Court, as originally established has become an almost sacred institution, with which no politician dares tamper. In part, this is a sanctity that comes naturally with age, But in larger part, it is a tacit recognition that democratic government is something more than government that is popular in its origins: it is government that seeks justice as it aim." Id. at 104, 114-115. For further reading on Neoconservative thought, a good place to begin is Mark Gerson, ed., The Essential Neoconservative Reader (Reading, Massachusetts: Addison-Wesley, 1996), which includes pieces by, among others, Irving Kristol, Ruth Wisse, Norman Podhoretz, Nathan Glazer, Jeanne Kirkpatrick, Daniel Patrick Moynihan, James Q. Wilson, and Gertrude Himmelfarb. From it book jacket: "The word 'neoconservative' was first used as a term of derision for disgruntled ex-liberals of the 1960s. Perhaps because of this, there has never been a central credo or organization unifying neoconservativism as a movement. With this collection, however, neoconservativism is cast in a new light, portrayed as a comprehensive outlook on economics, politics, society, and culture linked by common principles and a distinctive vision." Well, I am not so sure about that last sentence. Still, it is worthwhile to read this collection to understand where neoconservativism began.).

Shapiro, Ian, Democracy's Pace (Ithaca & London: Cornell U. Press, 1996) ("Minorities and majority rule, that is our subject. It is famously an American one. The tricky task for this constitutional democracy is to devise 'ways of protecting minorities from majority tyranny that are not a flagrant contradiction of the principle of majority rule.' . . ." Id. at 16. "From the beginning the American preoccupation with majority rule was different. The problem was to domesticate and institutionalize an idea whose historical purpose had been to destabilize institutions. In the context of a society that, if not fully pluralist, appeared to lack one fundamental socioeconomic cleavage characteristic of nations with a feudal past, Americans would be first to confront the fact that the minority harmed by the working of majoritarian process need not be a rich and powerful elite; it could be a dispossessed racial or religious minority. American democratic theorists continue to be preoccupied with the logical properties of majority rule and its fairness from a neutral or 'bird's eye' standpoint, and they are often deeply troubled by discoveries that it can general arbitrary outcomes as a result of cyclical majorities, strategic voting, and control of the voting agenda. Yet my central contention here is that a great deal of this concern is misplaced. . . ." Id. at 17. This is interesting background reading. However, a word of caution. Published in 1996, the essay in this collection have a tone of triumphalism: that democracy had beaten its intellectually bankrupt opposition (remember the Soviet Union had collapsed seven years early. Now, however, one sees authoritarian China very much on the rise, with democracy there not very evident. Or, one sees Russia transformed, but without much real democracy. So, smug as we were that democracy had a firm footing for the future, we now see the authoritative model--the Beijing Consensus, as it is called--creeping into American political life. Think about the top-down decision making and group-think that dominates America's (failing) corporate institutions. Then, think about how that model of corporate governance is being incorporated into political governance.).

Shapiro, Ian, The Real World of Democratic Theory (Princeton & Oxford: Princeton U. Press, 2011) ("An important truth underscored by the most serious financial collapse since the Great Depression is that experts often know less than they are willing to admit--even to themselves. The sheer complexity of the financial crisis forced governments to continue working with many of the architects of the system that failed, and, partly, for that reason, pressure has mounted to subject them to new regimes of accountability. As governments have scrambled to pick up the pieced, questions concerning by whose authority they act and for what purpose are thrown into sharp relief. If technocrats are to be subservient, one again, to democratic control, we need to know what that means, why it is justified, how it is established and maintained, and how it can work in the face of contemporary challenges. With the technocrats on the defensive, democrats might have the upper hand--at least for a while. This makes it all the more incumbent on them to rethink democracy from the ground up, doing what they can to help it rise to the occasion. That is my agenda here.' Id. at 18-19. "Some will question why a committed cosmopolitan democrat should defend any national security policy. Should our cosmopolitanism not commit us instead to the creation of a global democracy that would render any account of the appropriate relations among states besides the point, if not already obsolete? Not necessarily, or so I argue here. A cosmopolitan commitment to democracy does involve endorsing the view that democracy is the best system of government, and supporting democracy's spread across the globe, but it is a huge leap from embracing this commitment to arguing for a wold government. Making the latter move is neither desirable nor feasible, as one one can see by examining the main arguments that have been put forward in support of world government." Id. at 159.).

Singer, Peter, One World: The Ethics of Globalization (New Haven & London: Yale U. Press, 2002) ("Democracy, in the sense of the rule of the majority, does not provide a guarantee that human rights will be respected. But a democratic process requires that the policies of the government must be publicly defended and justified. They cannot simply be implemented from above. Although some of us may have the capacity to commit terrible crimes, many of us also have a moral sense, that is, a capacity to reflect on the rights and wrongs of what we are doing, or what our rulers are doing. That capacity emerges in the public arena. A small group may plot genocide, and inspire or terrify their followers to carry it out, but if genocide has to be defended on primetime television, it will become rare indeed. Even when the Nazis had been in power for eight years, ruling without opposition and making use of all the means of propaganda that Goebbels could devise, they did not dare to be open about what they were doing to the Jews. Himmler told a group of SS leaders that their work in exterminating the Jews was 'an unwritten, never-to-be-written, glorious page of our history.' If it had been possible to ensure that every page of Nazi history were written as it happened and offered for discussion to the German people, it is hard to believe that the Holocaust would have taken place. When the prosecutors at the Nuremberg Tribunal screened a film of Nazi concentration camps made by Allied military photographers, some the the defendants appeared visibly shocked. Even they may not have grasped exactly what the results of their policies looked like, close-up. Open procedures and public scrutiny may not be perfect bulwark against genocide, but they do help." Id. at 136-137.).

Stout, Jeffrey, Blessed Are the Organized: Grassroots Democracy in America (Princeton & Oxford: Princeton U. Press, 2010) ("Central to the spirit of democracy, as I understand it, is a people's disposition to care about liberty and justice for all and to act in ways that make this concern manifest. Caring involves taking an active interest in something in contrast with being apathetic about it or unconcerned with it. Caring about the goods of liberty and justice for all is manifested in striving for their realization in law and public policy; in joy, relief, or satisfaction when liberty is protected or justice is done; and in anger, grief, or disappointment when these goods are violated. But it also involves a disposition for the condition of the republic and thus to treat one another as citizens." Id. at. 12. "Hope is not the same thing as thinking that what one ardently desires is likely to happen. It is the virtue one needs when grim facts might tempt one to give up on promoting or protecting important goods. In this case the goods are liberty and justice, and the temptation is to assume that they are now essentially out of reach. The temptation, in short, is despair. Democratic hope is a virtue that needs grounds, but not grounds capable of demonstrating that the goods in questions will in fact be achieved, or are likely to be achieved, if we behave in a certain way. They are grounds for thinking that we have a chance of making a significant difference for the better." Id. at 283.).

Tulis, Jeffrey K., & Stephen Macedo, eds., The Limits of Constitutional Democracy (Princeton & Oxford: Princeton U. Press, 2010) (From Jeffrey K. Tullis & Stephen Macedo's "Introduction: Constitutional Boundaries": "Our large theme is failure and success in constitutional making, or the limits of constitutional democracy. The convergence of recent scholarly work in political science and law and political events throughout the world make this a timely project inside and outside of the academy. The number of new constitutional texts written in support of regime formation in the past thirty years is astonishing. The profusion of ideas and scholarship on constitution making also marks a milestone for social science, which had long neglected the study of laws and constitutions, and for legal studies, which recently added the study of constitutional design to its usual emphasis on constitutional interpretation and analysis of court doctrine." "This world wide effort in political and academic arenas is, however, marked by a kind of ambivalence. On the one hand, there is considerable optimism that constitutional democracy represents a high point, if not a culmination, in the history of political life. . . . On the other hand, for all the attractiveness of the idea of constitutional democracy, establishing it in practice has proved difficult in many new regimes throughout the world, as the Russian case and the conflicts in Iraq and Afghanistan vividly illustrate. Constitutional democracy is at once an attractive idea and a daunting enterprise. There are limits to the possible establishment, to say nothing of the flourishing, of the idea of constitutional democracy." Id. at 1.).

Wolfe, Alan, & Ira Katznelson, eds., Religion and Democracy in the United State: Danger or Opportunity? (New York: Russell Sage Foundation; Princeton & Oxford: Princeton U. Press, 2010) (From the Ira Katzenelson, "Conclusion: Reflections on Religion, Democracy, and the Politics of Good and Evil": "At the core of this volume is a persistent probing of these questions: What are the implications of the range of diversity in American religion for the public sphere? How do the hard-wired and reinterpreted rules about establishments and expression shape how citizens think and act, organize and mobilize, politically? How do America's patterns of political participation, when motivated by religious conviction, affect the tone, content, and scope of democratic process? Does the organized mobilization of religious principles and persuasions improve or detract from desirable qualities within American democracy and its politics of policymaking? With so much diversity of conscience and ways of life, and with so many contesting controversial ideas, how, further, can the polity discover toleration for views and behavior thought by others to be wrong, repugnant, or even sinful." "These issues reverberate across the array of chapters, including the empirical designations of the remarkable heterogeneity of religious expression and organization in the United States. . . ." "Read together, they remind us that there has been a dominant solution in the United States to problems of religion and politics that, elsewhere, often has produced curbs on liberty and organized intolerance and even widespread violence. This orientation is the one Nancy Rosenblum's essay [in Chapter 12, "Faith in America: Political Theory's Logic of Autonomy and Logic of Congruence"] calls 'political congruence'--the implicit requirement that religious groups respect democratic rules and practices, present themselves in public life not by appealing to religious meanings or revealed truths but to public reason, and strategically pursue the creation of political, not doctrinal, majorities, thus respecting the basic rule of social choice of finding 50 percent plus one in circumstances of religious pluralism where no single denomination can come close to possessing such a majority. Political congruence, she persuasively argues, is both the result and a producers of religious moderation. Americans tend not to assault or kill each other for their faith. In turn, political participation can moderate religiously motivated desires and demands, opening possibilities for compromise. Congregational experiences prod political participation and prepare citizens for a democratic give and take. Vibrant religious expression and a public sphere that is democratic can go hand in hand provided there is a recurring discovery of arrangements that refuse both the option that the state actively promote religion and the alternative of a stark separation of church and state that too effectively limits the presence of religious associations and claims in public life." Id. at 410, 414-415.).

Wolf, Christa, A Model Childhood, translated from the German by Ursule Molinaro & Hedwig Rappolt (New York: Farrar, Straus & Giroux, 1980) ("Any other information, however, did not concern them. The curtailment of certain personal freedoms (just as an example), announced on March 1, 1933, would hardly affect their lives, because so far they had obviously not planned any publications (freedom of the press), or participated in mass meetings (freedom of assemby): they simply had not felt the need. And as for the order that 'searches and confiscations beyond the limits of legality' were 'permissible for the time being,' why, that was aimed at a category of people with whom they simply had nothing in common, so to speak, to state things as they were without any value judgments. They were not Communists, although their thinking was socialist in tendency, and they voted the Social-Democratic ticket, the same as 6,506 citizens of the town. Of the 28,658 votes cast, 15,055 had already gone to the Nazis, but one didn't yet have the feeling that evey single ballot was being checked. The Communist representatives, elected by 2,207 diehards, especially in the Brucken suburb, had not yet been arrested (although they were to be, twelve days later), and there were 3,944 unemployed in the town--a number which was to be reduced to 2,024 as early as October 15, 1933. But should one--can one--accept this alone as the explanation for the resounding success of the National Socialist Party on November 13 of the same year, when the town of L., with a voter participation of almost 100 percent and a negligible number of invalid ballots, had the most yes votes in the Ostmark district?" "Bruno and Carlotte Jordan had not abstained from voting. That couldn't be done any longer." "Those people were contolling everything now." "(Who are we to put irony, disgust, scorn into these sentences when we quote them?) Whether Charlotte and Bruno Jordan mustered the required abhorrence for the 'systematically prepared acts of terror' perpetrated by the Communist, which were said to include 'massive poisonings,' and about which Reichminister Hermann Goring could have produced not one or two but 'hundreds of tons of material proof'--if such had not endangered the security of the Reich and state--is to be doubted. He sure piles it on thick, Charlotte Jordan used to remark on such occasions, but whether she said it at that particular time has not been recorded. Nobody will ever know if they racked their brains about the location of the 'vaults and secret passages' in their open town through which the Communists 'everywhere' tried to escape the police and the law. Certainly nobody could have objected to the new theme song of the official radio station: 'Trust and honesty every day.' It was one of the first melodies Nelly sang in its entirety and without any mistakes, and whose powerful text ('A villain's lot is always hard') reinforced in her, early and ever more firmly, the deeply rooted inborn link between good deeds and well-being: 'Then you will walk thorough life as if on verdant fields.' A lasting image." Id. at 37-38.).

NICE BEACH READ (WERE I SOMEONE WHO READS ON THE BEACH), BUT UNREALISTIC BECAUSE MOST OF US ARE NOT UPPER-MIDDLECLASS AMERICANS

David Brooks, The Social Animal: The Hidden Sources of Love, Character, and Achievement (New York: Random House, 2011) (What about that not so-hidden, but conveniently overlooked, source of love, character, and achievement: luck, or what the ancients called Fate?).

BOOK OF THE WEEK: WEEK THIRTEEN, 2011

Tomiko Brown-Nagin, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement (Oxford & New York: Oxford U. Press, 2011) (Point One: In law school, understandably but unfortunately, students are given the impression that lawyers and courts are at the center of events, especially events surrounding social change. As a consequences, law students (and lawyers) fail to see that other actors may play equally, if not more, significant roles. Consequently, law students and lawyers easily develop over-inflated views of their importance. Point Two: I don't think any jurisdiction requires those applying for admission to the law bar to have any knowledge of legal history. It is doubtful that more than a handful of law schools have a legal history requirement in their curriculum. Consequently, law students and lawyers can be quite unknowledgeable even of the history of their profession. For the most part, if law students or lawyers think knowledge of history is important, they will have to self-educate themselves by reading legal history on their own. Professor Brown-Nagin has written a history of the civil rights movement in the United States, one that does not give lawyers and courts center stage. "In telling these stories, I seek to answer the following questions: What would the story of the mid-twentieth-century struggle for civil rights look like if legal historians de-centered the U.S. Supreme Court, the national NAACP, and the NAACP LDF and instead considered the movement from the bottom up? The answer, I contend, is this: a picture would emerge in which local black community members acted as agents of change--law shapers, law interpreters, and even law makers. Each contested and contingent step in the struggle for racial changes comes into clearer focus. One can only see this picture by looking beyond the Court and the national NAACP and LDF; and examining developments in local communities before, during, and after lawyers launched civil rights litigation." ". . . This local perspective is crucial. As important as national organizations and national leaders were, local actors helped to define equality, too--and did so in profound ways. Local actors worked to create the conditions necessary to achieve change. They played leading roles in everyday struggles to ameliorate inequalities in the social and political order. And they experienced the gap between civil rights and remedies once the movement achieved formal equality." ". . . In the story told here, members of the national bar and bench, considered the primary engines of racial change even in much recent scholarship, play important, but less commanding roles. They remain protagonists and catalysts of change, but I critically examine the national actors in relation to the local clients and communities on whose behalf they labored." "This bottom-up narrative makes intraracial conflict central to the legal history of the civil rights movement. . . ." Id. at 7-8. "Scholars of law and social change who argue that Supreme Court litigation undermined political mobilization during the civil rights era have not fully engaged these points. Civil rights litigation siphoned resources from more fruitful political avenues for change, it is said. Brown [v. Board of Education] is thought to have a unique impediment to direct action, Only when Congress and the executive branch became involved in civil rights did any significant change occur. This understanding of how social change occurred, and this perspective on what counts as change, persuasively argues that the U.S. Supreme Court is not a driving force in social reform. Yet, it does not fully account for the agency of student activists on the ground--the 'guerilla warfare' of movements for change--are hidden when scholars focus primarily on the work of the Court and the roles of national institutions. These dynamics are overshadowed when sharp distinctions are not drawn, or points off commonality are not recognized, between student activists and legal activists, as appropriate The work of the courts and lawyers naturally captivates the attention of legal scholars. Nevertheless, the activities of lay activists--improvised, yet capable of responding to the changing legal and political environments--laid the groundwork for the sweeping legislative and executive branch changes that the Court, as scholars rightly note lacked the capacity and will to implement on its own." Id. at 135.).

TWO SHORT-STORY COLLECTIONS

Charles Baxter, Gryphon: New and Selected Stories (New York: Pantheon Books, 2011) (see Joyce Carol Oates, "Charles Baxter's Midwest," NYT Book Review, Sunday, 1/16/2011).

Pearlman, Edith, Binocular Vision: New and Selected Stories (Wilmington, North Carolina: Lookout Books, 2011) (Roxana Robinson, "Stories of Dislocation and Relocation," NYT Book Review, Sunday, 1/16/2011).

WATCH YOUR FEET

William Golding, Lord of the Flies (1954), with preface by Ian McEwan, & illustrations by Sam Weber (London: The Folio Society, 2009) ("The tide was coming in and there was only a narrow strip of firm beach between the water and the white, stumbling stiff near the palm terrace. Ralph chose the firm strip as a path because he needed to think; and only here could he allow his feet to move without having to watch them. Suddenly, pacing by the water, he was overcome with astonishment. He found himself understanding the wearisomeness of this life, where every path was an improvisation and a considerable part of one's waking life was spent watching one's feet. He stopped, facing the strip; and remembering that first enthusiastic exploration as though it were part of a brighter childhood, he smiled jeeringly. He turned then and walked back towards the platform with the sun in his face. . . ." Id. at 82.).

PLANNING AHEAD FOR SUMMER: SUGGESTED READING FOR THE INTELLECTUALLY SERIOUS LAW STUDENT

Brinig, Margaret F., Family, Law, and Community: Supporting the Covenant (Chicago & London: U. of Chicago Press, 2010) ("From the bookjacket: "In the wake of vast social and economic changes, the nuclear family has lost its dominance, both as an ideal and in practice. Some welcome this shift, while others see civilization itself in peril--but few move beyond ideology to develop a nuanced understanding of how families function in society. In this provocative book, Margaret F. Brinig draws on research from a variety of disciplines to offer a distinctive study of family dynamics and social policy. "Concentrating on legal reform, Brinig examines a range of subjects including cohabitation, custody, grandparent visitation, and domestic violence. She concludes that conventional legal reforms and the social programs they engender ignore social capital: the trust and support given to families by a community. Traditional families generate much more social capital than nontraditional ones [BUT WHY?], Brinig concludes, which leads to clear rewards for children. Firmly grounded in empirical research, Family, Law, and Community argues that family policy can only be effective if it is guided by an understanding of the importance of social capital and the advantages held by families that accrue it." What Brinig does not ask, and does not answer, is why a community does not trust and does not give support to non-traditional families? This effectively withholds from such nontraditional families the opportunity to accrue the social capital in question. It is a catch-22 situation: Communities support family structures which they already feel comfort. Nontraditional family structure, being 'new', are discomforting; therefore, communities don't support non-traditional families. But family structures only survive/thrive with community support. So, when nontraditional family structures fail to survive/thrive due to lack of community support, their instability is the justification for communities withholding their support. A family better accrues social capital if it is supported and trusted by the community. But, society will not trust and support the nontraditional family unless accrues social capital. But again, the traditional family cannot get the trust and support of the community unless the nontraditional family is a traditional family. But yet again, since the community decides what is traditional (i.e., within the accepted norm) and has decided that the nontraditional family is not traditional (not within the norm), the nontraditional family is handicapped by the community from getting its support in accruing social capital and, thereby, becoming part of the stable tradition.).

Engel, Kathleen C., & Patricia A. McCoy, The Subprime Virus: Reckless Credit, Regulatory Failure, and Next Steps (Oxford & New York: Oxford U. Press, 2011) ("One of the sadder instances of loan flipping involved Mary Podelco, a former waitress with a sixth-grade education who had lost her husband in 1994. She used his life insurance to pay off the mortgage on her family home. A year later, in need of new windows and a heating system, she took out a loan with Beneficial Finance for $11,921. Just one month later, Beneficial convinced her to refinance the loan for $16,256. Soon other lenders got into the game, each promising Ms. Podelco a loan that was superior to the one she had. Over the course of a year, lenders flipped her loan at least five times, increasing her outstanding debt to over $64,000. Unbeknownst to Ms. Podelco, she was paying exorbitant charges with every flip. On July 26, 2001, long before the subprime heyday, she told her story to the Senate Committee on Banking, Housing and Urban Affairs." Id. at 22. From the bookjacket: "The subprime crisis shook the American economy to its core. How did it happen? Where was the government? Did anyone see the crisis coming? Will the new financial reforms avoid a repeat performance." "The authors, experts in the law and the economics of financial regulation and consumer lending, offer a sharply reasoned, but accessible account of the actions that produced the greatest economic collapse since the Great Depression. The Subprime Virus reveals how consumer abuses in a once obscure corner of the home mortgage market led to the near meltdown of the world's financial system. The authors also delve into the roles of federal banking and securities regulators, who knew of lenders' hazardous mortgages and of Wall Street's addiction to high stakes financing, but did nothing until the crisis erupted. This is the first book to offer a comprehensive description of the government's failure to act and to analyze the financial reform legislation of 2010." Concerning the financial reform legislation, Engel and McCoy write, "Senator Dodd and Congressman Frank scored a big win with the passage of their namesake law, but another battle looms for which the industry has already begun preparing. Throughout the new law, Congress legislated in generalities, leaving it to federal regulators to flesh our the details of financial reform through regulations. By one law firm's count, Dodd-Frank calls for 243 separate rulemakings. Similarly, the law gives federal regulators the discretion to create exceptions to what otherwise appear to be hard-and-fast rules and to exempt companies and products from regulation. . . ." "As a result, the financial services industry will get another bite at the apple, to weaken financial reform during the rulemaking proceedings, and, if that fails, the industry will find ways to fall within the law's exemptions. Already financial lobbyists are lining up and recruiting onetime government regulators to aid their cause. Since 2009, close to 150 former financial regulators have filed forms to register as lobbyists. In all likelihood, the lobbying campaign will dwarf the one that culminated in the Dodd-Frank bill--and have far less visibility." Id. at 254-255. So, when someone suggests that this or that regulation will prevent something like the subprime virus from occurring again, think again. The castration of any effective regulation by the industry mean that such disaster are always waiting in the wings.).

Harcourt, Bernard E., The Illusion of Free Markets (Cambridge, Massachusetts; & London, England, 2011) ("The natural order, in effect, masks the state's role, the government ties to nonstate organizations . . and the extensive legal and regulatory framework that embeds these associations. Robert Hale and other legal realists in the early twentieth century demonstrated the extent to which the distribution of income and wealth is the product of the legal rules we choose to impose. Hale trained our attention on the foundational rules of property and contract law, showing how free, voluntary, compensated exchange is in fact the product of the legal coercion that the government establishes through its role in defining property rights." Id. at 32. From the bookjacket: "It is widely believed today that the free market is the best mechanism ever invented to efficiently allocate resources in society. Just as fundamental as faith in the free market is the belief that government has a legitimate and competent role in policing and the punishment area. This curious incendiary combination of free market efficiency and the Big Brother state has become seemingly obvious, but it hinges on the illusion of a supposedly natural order in the economic realm. The Illusion of Free Markets argues that our faith in 'free markets' has severely distorted American politics and punishment practices." "Bernard Harcourt traces the birth of the idea of natural order to eighteenth-century economic thought and reveals is gradual evolution through the Chicago School of economics and ultimately into today's myth of the free market. The modern category of 'liberty' emerged in reaction to an earlier, integrated vision of punishment and public economy, known in the eighteenth century as 'police.' The development shaped the dominant belief today that competitive markets are inherently efficient and should be sharply demarcated from a government-run penal sphere." "This modern vision rests on a simple but devastating illusion. Superimposing the political categories of 'freedom' or 'discipline; on forms of market organization has the unfortunate effect of obscuring rather than enlightening. It obscures by making both the free market and the prison system seem natural and necessary. In the process, it facilitated the birth of the penitentiary system in the nineteen century and its ultimate culmination into mass incarceration today.").

Harcourt, Bernard E., Illusion of Order: The False Promise of Broken Windows Policing (Cambridge, Massachusetts, & London, England, 2001) (From the bookjacket: "This is the first book to challenge the 'broken windows' theory of crime, which argues that permitting minor misdemeanors, such as loitering and vagrancy, to go unpunished only encourages more serious crimes. The theory has revolutionized policing in the United States and abroad, with its emphasis on policies that crack down on disorderly conduct and aggressively enforce misdemeanor laws." "The problem, argue Bernard Harcourt, is that although the broken windows theory has been around for nearly thirty years, it has never been empirically verified. Indeed, existing data suggest that it is false. Consequently, it rests on unexamined categories of 'law abiders' and 'disorderly people' and of 'order' and 'disorder,' which have no intrinsic reality independent of the techniques of punishment that we implement in our society." ""How did the new order-maintenance approach to criminal justice--a theory without solid empirical support, a theory that is conceptually flawed and results in aggressive detentions of tens of thousands of our fellow citizens--come to be one of the leading criminal justice theories embraced by progressive reformers, policymakers, and academic throughout the world? This book explores the reasons why. It also presents a new, more thoughtful vision of criminal justice.").

Leib, Ethan J., Friend v. Friend: The Transformation of Friendship--and What the Law Has to Do With It (Oxford & New York: Oxford U. Press, 2011) ("The arguments in this book . . . will support two main claims. First, the law must earn to take notice of friendship because friendship matters--to our lives, our law, and the viability of our public institutions. . . ." Id. at 11-12. "Second, and more controversially, I want to convince the reader that our laws, legal institutions, and public policy agenda should be oriented toward promoting and facilitating friendships. . . ." Id. at 12. The following statement is simply not true: "Friendships is so obviously a good in the world that it is hard to justify allocating trees to defending its goodness." Id. at 36. Though I highly disagree with the thrust of this book, I think it is a worthwhile read. In closing the book I was left with the thought that, to be on the safe side, one should begin each and every conversation, each and every interaction, with each and every person, with the disclaimer 'I am not your friend!'. One may want to follow up by every so often doing something that is non-tortious but clearly anti-friend (e.g., thumb your nose at them for time to time). I know this may seem to reduce civility, but I think a highly regulated institution of friendship would not be a good think. Then again, if one thinks about it in an honest manner, one likely will conclude that rare is it to find a person who is truly worth knowing and befriending. And that goes both ways. Glad-handers and fair-weatherers are quite common, but substantive friends are truly rare and best protected by keeping the law at a distance.).

Pollock, Sir Frederick & Frederic William Maitland, The History of English Law Before the Time of Edward I, 2d. ed.: Volume I (Indianapolis: Liberty Fund, 2010) ("Another point on which confusion is natural and may be dangerous is the relation of law to morality. Legal rules are note merely that part of the moral rules existing in a given society which the State thinks proper to enforce. It is easily recognized that there are, and must be, rules of morality beyond the commandments of law; no less is true, though less commonly recognized, that there are and must be rules of law beyond or outside the direct precepts of morality There are many things for which it is needful or highly convenient to have a fixed rule, and comparatively or even highly indifferent what the rule shall be, When, indeed, the rule is fixed by custom or law, then morality approves and enjoins obedience to it. But the rule itself is not a moral rule. In England men drive on the left-handed side of the road in the United States and nearly all part of the Continent of Europe on the right. Morality has nothing to say of this, except that those who use the roads ought to know and observe the rule whatever it be, prescribed by the law of the country. Many cases, again, occur, where the legal rule does not profess to fulfil anything like a perfect justice, but where certainly is of more importance than perfection, and an imperfect rule is therefore useful and acceptable Nay, more, there are cases where the law, for reasons of general policy, not only make persons chargeable without proof of moral blame, but will not admit proof to the contrary. . . ." Id. at xxxvi. "The reign of Henry II. is of supreme importance in the history of our law, and its importance is due to the action of the central power, to reforms ordained by the king. Still it was rather as an organizer and governor than as a legislator that Henry was active. He issued no code; we may even doubt whether he published any one new rule which we should call a rule of substantive law; but he was for ever busy with new devices for enforcing the law. Much of what he did, much that was to determine the fate of our law is after ages, was done in an informal fashion without the pomp of legislation. A few words written or but spoken to his justices might establish a new mode of procedure. There would be nothing to be proclaimed to the world at large, for in theory there was no change in the law; and yet very surely the whole of England was being changed both in form and in substance. . . . " Id. at 145. "It is not for us here to relate the events which led to the exaction and grant of the Great Charter, to repeat its clauses, or even to comment on all the general characteristics of that many-sided instrument. . . ." Id. at 181-182. "For in brief it means this, that the king is and shall be below the law." Id. at 184. Many details are still obscure, but in Edward I.'s day it is that our legal profession first begins to take a definite shape. We see a group of counsel, of serjeants and apprentices on the one hand, and a group of professional attorneys on the other, and both of them derive their right to practise from the king either mediately or immediately." "So soon there is a legal profession, professional opinion is among the most powerful of the forces that mould the law, and we may see it exercising its influence directly as well as indirectly. In Edward I.'s day it is impossible to uphold a writ which 'all the serjeants' condemn, and often enough to the medieval law-reporter 'the opinion of the serjeants' seems as weighty as any judgment." Id. at 230.).

Pollock, Sir Frederick & Frederic William Maitland, The History of English Law Before the Time of Edward I, 2d. ed.: Volume II (Indianapolis: Liberty Fund, 2010) ("Still a man must have seisin before he can exploit it . . . " "Law must define this vague idea, and it cannot find the whole essence of possession in visible facts. It is so now-a-days. We see a man in the street carrying an umbrella; we cannot at once tell whether or no he possesses it. Is he its owner, is he a thief, is he a borrower, a hirer, is he the owner's servant? If he is the owner, he possesses it; if he is a thief, he possesses it. If he is the owner's servant, we shall probably deny his possession. If he is a borrower, we may have our doubts; the language of every-day life may hesitate about the matter; law must make up it mind. Before we attribute possession to a man, we must apparently know something about the intentions that he has in regard to the thing, or rather about the intentions that he must be supposed to have when the manner in which he came by the thing has been taken into consideration. Probably the better way of stating the matter is not to speak of his real intentions, which are often beside the mark, nor of the intentions that he must be supposed to have, which are fictions, but to say at once that we require to know how he came by the thing. This being known, problems await us. If the carrier of the umbrella is its owner, he possesses it; if he is a thief making off with a stolen chattel, he possesses it; if he has by mistake taken what be he believe to be his own, he probably possesses it; if he has borrowed it or hired it, the case is not so plain; law must decide--and various systems of law will decide differently--whether possession shall be attributed to the borrower or the lender, to the letter or the hirer." Id. at 36. "But why do we demand that the dead shall be represented? The law of inheritance seems to answer two purposes, which can be distinguished, though in practice they are blended. The dead man has left behind him a mass of things and we must decide what is to done with them. But further, he has gone out of the world a creditor and a debtor, and we find it desirable that his departure should make as little difference as may be to his debtors and creditors. Upon this foundation we build up our elaborate system of credit. Death is to make as little difference as may be to those who have had dealing with him who has died, to those who have wronged him, to those whom he hs wronged." Id. at 269. "It is in the providence of inheritance that our medieval law made its worst mistakes. They were natural mistakes. There was much to be said for the simple plan of giving all the land to the eldest son. There was much to be said for allowing the courts of the church to assume a jurisdiction, even an exclusive jurisdiction, in testamentary causes. We can hardly blame our ancestors for their dread of intestacy without attacking their religious beliefs. But the consequences have been evil. We rue them at the present day, and shall rue them so long as there is talk of real and personal property." Id. at 380-381. "On no other part of our law did the twelfth century stamp a more permanent impress of its heavy hand than on that which was to be the criminal law of after days. . . ." Id. at 470. "Though we must not speculate about a time in which there was no law, the evidence which comes to us from England and elsewhere invites us to think of a time when law was weak, and its weakness was displayed by a ready recourse to outlawry. It could not measure its blows; he who defied it was outside its sphere; he was outlaw. He who breaks the law has gone to war with the community; the community goes to war with him. It is the right and duty of every man to pursue him, to ravage his land, to burn his house, to hunt him down like a wild beast and slay him; for a wild beast he is; not merely is he a 'friendless man,' he is a wolf. Even in the thirteenth century, when outlawry had lost its exterminating character and had become an engine for compelling the contumacious to abide the judgment of the courts, this old state of things was not forgotten; Caput gerat lupinim--in these words the courts decreed outlawry. Even in the nineteenth century the king's right to 'year, day and waste' of the felon's land remained as a memorial of the time when the decree of outlawry was a decree of fire and sword." Id. at 471-472. "Had we to write legal history out of our own heads, we might plausibly suppose that in the beginning law expects men to help themselves when they have been wronged, and that by slow degrees it substitutes a litigatory procedure for the rude justice of revenge. There would be substantial truth in this theory. For a long time law was very weak, and as a matter of fact it could not prevent self-help of the most violent kind. Nevertheless, at a fairly early stage in its history, it begins to prohibit in uncompromising terms any and every attempt to substitute force for judgment. Perhaps we may say that in its strife against violence it keeps up its courage by bold words. It will prohibit utterly what it cannot regulate." Id. at 602. And, lastly, for those who think English legal history is not relevant for providing insights into twenty-first-century American law, consider the following. "The behaviour which is expected of a judge in different ages and by different systems of law seems to fluctuate betweentwo poles. At one of these the model is the conduct of a man of science who is making researchers in his laboratory and will use all appropriate methods for the solution of problems and the discovery of truth. At the other stands the umpire ou our English gamess, who is there, not in order that he may invent tests for the power s of the two sides, but merely to see that the rules of the game are observed. It is towards the second of these ideas that our English medieval procedure is strongly inclined, We are often reminded of the cricket-match. The judges sit in court, not in order that the may discover the truth, but in order that they may answer the question, 'Hoe;s that?' This passsive habit seems to grow upon them as times goes on and the rules of pleading are developed. . . ." Id. at 701-702. Ah, the roots of then United States Supreme Court nominee John Robert's 'judge-as-umpire' metaphor. Whether Roberts was being disingenuous or not is a point upon which reasonable people can, and do, disagree.).

Posner, Eric A., & Adrian Vermeule, The Executive Unbound: After the Madisonian Republic (Oxford & New York: Oxford U. Press, 2011) ("In our view, the major constraints on the executive, especially in crises, do not arise from law or from the separation-ofpowers framework defended by liberal legalists, but from politics and public opinion. . . . A central fallacy of legal liberalism, we argue, is the equation of a constrained executive with an an executive constrained by law. The pressures of the administrative state loosen legal constraints, causing liberal legalists to develop tyrannophobia, or unjustified fear of dictatorship. They overlook the de facto political constraints that have grown up and to some degree, substituted for legal constraints on the executive. As bounds of law have loosened, the boonds of politics have tightened their grip. The executive, 'unbound' from the standpoint of liberal legalism, is in some ways more constrained than ever before." Id. at 4-5. A reader will not be able to follow the subtle and nuauced moves Posner and Vermeule make unless the reader has (the equivalent of) a halfway decent college education, where a college degree is rather weak evidence of a college education. Does the average college graduate understand the contours of a 'Madisonian republic'? I doubt it. Even most law students will be hard-pressed to identify and articulate the reference to 'liberal legalists,' to appreciate and articulate why late-twentieth and early-twenty-first century America is an 'administrative state (as opposed to what kind of state), to understand the difference between 'political constraints' and' legal constraints,' especially since "[l]aw and politics are hard to separate and lie on a continuum.". Consequently, typical law students will not be able to follow Posner's & Vermeule's arguments as to whether they have fairly stated robust liberal legalists' positions and concerns, or whether Posner and Vermeule have posited a rather puny form or class of liberal legalists. "We do not claim that these political constraints necessarily cause the executive to pursue the public interest, however defined, or that they produce optimal execute decision-making." Id. at 5. But do those political constraints even tend to cause the executive to pursue the public interest or even tend to produce optimal executive decision-making? If not, then bullock to it all. "We do claim that politics and public opinion at least block the most lurid forms of executive abuse. . . ." Id. Stop there. To use an extreme example, there is nothing in Posner' and Vermeule's discussion that convinces me that the political constrains defended will prevent the future executive from marshaling undesirable to detention camps in Arizona, or prison facilities in Kansas, or even gas chambers in . . ., yes, your back yard. But Posner and Vermeule continue. "We do claim . . . that courts and Congress can do no better . . ." Id. As history has clearly shown. " . . . that liberal legalism goes wrong by assuming that a legally unconstrained executive is unconstrained overall, and that in any event there is no pragmatically feasibly alternative to executive government under current conditions." Id. It would take to long for me to explain here why Posner and Vermeule, even if they are correct in this statement, are unconvincing in their argument. "[This] last point has normative implications, because of the maxim 'Ought implies can.' Executive government is best in the thin sense that there is no feasible way to improve upon it, under the conditions of the administrative state." Id. Keep in the front of your mind's eye that phrase 'best in the thin sense.' Best in the thin sense is rather watery gruel. Obviously, I am not on board the Posner-Vermeule train. Nevertheless, they are among the best legal minds in legal academia and, for that reason alone, should be read carefully and come to term with one way or the other. If you are a law student, try to read as many of the cases. articles and books cited in the footnotes of The Executive Unbound. Just as baseball is one kind of game if you viewing it crudely as a groups of grown men running about with bats, balls and gloves. It is another game, a far more sophisticated game, when one appreciates statistics and the strategies involved. in this short book, Posner and Vermeule are engaged in a sophisticated game of insider baseball.).

Solan, Lawrence M., The Language of Statutes: Laws and Their Interpretation (Chicago & London: U. of Chicago Press, 2010) (From the bookjacket: "Here, Lawrence M. Solan argues that statutory interpretation is alive, well, and not in need of the major overhaul that many have suggested. Rather, he suggests, the majority of people understand their rights and obligations most of the time, with difficult cases occurring in circumstances which we can predict from understanding when our minds do not work in a lawlike way." "We are capable of writing crisp flexible laws, but Solan explains that difficult cases result when the ways in which our cognitive and linguistic faculties are structured fail to produce a single, clear interpretation. Though we are predisposed to absorb new situations into categories we have previously formed, our conceptualization is not always as crisp as the legislative and judicial realms demand. In such cases, Solan contends that other values, most importantly legislative intent, must come into play. The Language of Statutes provides an excellent introduction to statutory interpretation, rejecting the extreme arguments that judges have either too much or too little leeway, and explaining how and why a certain number of interpretative problems are simply inevitable.").

Shapiro, Scott J., Legality (Cambridge, Massachusetts, & London, England, Belknap/Harvard U. Press, 2011) ("Analytical jurisprudence . . . is not concerned with morality. Rather, it analyzes the nature of law and legal entities, and its objects of study include legal systems, laws, rules, rights, authority, validity, obligations, interpretation, sovereignty, courts, proximate causation, property, crime, tort, negligence, and so on. Analytical jurisprudes want to determine the fundamental nature of these particular objects of study by asking analytical questions such as: What distinguishes legal systems form games, etiquette, and religion? Are all laws rules? Are legal rights a type of moral right? Is legal reasoning a special kind of reasoning? Is legal causation the same as ordinary, everyday causation? Is property best understood as a bundle of right? What distinguishes tort from crimes? And so on." Id. at 3. As Shapiro notes, very few people (and even very few lawyers) think about the nature of law: they simply do not ask 'What is law?'. Needless to say, it is also a question that few law students ask mainly, I think, because the answer to that question has no bearing on getting employment as a lawyers, which is the only reason 99.9 percent of law students are in law school. Nevertheless, 'What is law?' is an important question as it lurks behind virtual all the lawyer-like things we do as lawyers. "This book is primarily concerned with analytical jurisprudence. My aim throughout the chapters that follow will be roughly threefold: to take up the overarching question of 'What is law?; to examine some historically influential answers to this question; and, finally, to propose a new, and hopefully better, account of my own." Id. at 3. The account that Shapiro proposes is a 'positivistic'. "The main ideas behind the Planning Theory of Law is that the exercise of legal authority, which I will refer to as 'legal activity,' is an activity of social planning. Legal institutions plan for the communities over whom they claim authority, both by telling their members what they may or may not do and by authorizing some of these members to plan for others. Call this idea the 'Planning Thesis. Planning Thesis: Legal activity is an activity of social planning. Central to the Planning Thesis is the claim that legal activity is more than simply the activity of formulating, adopting, repudiating, affecting, and applying norms for members of the community. It is the activity of planning. . . . " Id. at 195. "According to the Planning Theory, someone has legal authority only if he is authorized by the master plan of a particular legal system. But while authorization is necessary for legal authority, it is clearly not sufficient. The reason is simple: if legal authority entails the ability to plan for others, as the Planning Theory claims, then the norms adopted and applied by legal authorities must be plans. Plans, as I have argued, are special kinds of norms. They are not only positive entities that form nested structures, but they are formed by a process that disposes their subjects to comply. As a result, unless the members of the community are disposed to follow the norms created to guide their conduct, the norms created will not be plans." Id. at 179.).

Steinzor, Rena, & Sidney Shapiro, The People's Agents and the Battle to Protect the American Public: Special Interests, Government, and Threats (Chicago & London: U. of Chicago Press, 2010) (From the bookjacket: "Reasonable people disagree about the reach of the federal government, but there is near-universal consensus that it should protect us from such dangers as bacteria-infested food, harmful drugs, toxic pollution, crumbling bridges, and unsafe toys. And yet, the agencies that shoulder these responsibilities are in shambles; if they continue to decline, lives will be lost and natural resources will be squandered. In this timely book, Rena Steinzor and Sidney Shapiro take a hard look at the tangled web of problems that have led to this dire state of affairs." "It turns out that the agencies are not primarily to blame and the regulatory failure actually stems from a host of overlooked causes. Steinzor and Shapiro discover that unrelenting funding cuts, a breakdown of the legislative process, an increase in the number of political appointees, a concurrent loss of experienced personnel, chaotic White House oversight, and ceaseless political attacks on the bureaucracy all have contributed to the broken system. . . .).

Stout, Lynn, Cultivating Conscience: How Good Laws Make Good People (Princeton & Oxford: Princeton U. Press, 2010) ("Today we see the results of this intellectual evolution. Over the past quarter-century, the precepts of economics have been drilled into the heads of millions of undergraduates and graduate students. A generation weaned on the idea of rational selfishness has graduated from our nation's universities and moved into leadership positions in the worlds of law, business, government, and higher education. They have brought with them an unquestioned belief in the power of material 'incentives' that undergirds almost every policy discussion. Are people cheating on their taxes? Increase the penalty for tax fraud. Are CEOs taking dangerous risks with their firms? 'Incentivize' them with deferred stock grants. Are America's children failing to learn their ABCs? Tie teachers' salaries to their students' test scores." "Largely missing from all this talk of 'incentives' and 'accountability' is any serious discussion of the possibility that we might encourage or discourage particular behaviors by appealing not to selfishness, but instead to the force of conscience. . . . " Id. at 5. "According to [Robert] Putnam [Bowling Alone: The Collapse and Revival of American Community], the single biggest factor in explaining our increasingly Hydish behavior seems to be something Putnam labels 'generational change.' By this, Putnam means the replacement through attrition of an older generation raised during the Great Depression and hardened in the refiner's fire of the Second World War by subsequent generations (Baby Boomers, Generation X-ers, Millennials) that seem far less inclined toward altruism, civic engagement, and trust in others. For some reason, Putnam writes, 'being raised after World War II was quite a different experience from being raised before that watershed. It is as though the post-war generations were exposed to some anti-civic X-ray that permanently and increasingly rendered them less likely to connect with the community'--and , as the evidence shows, also less likely to behave in an unselfish prosocial fashion." "One can easily see how the generation of Americans raised before and during World War II may, through the process of meeting their historic collective economic and military challenges, have developed a stronger sense of common in-group affiliation and a keener appreciation for the importance of self-sacrifice than subsequent generations raised in the relative peaceful and prosperous years that followed. The scientific and empirical evidence surveyed in this book suggests, however, still another aspect of the post-war experience that may have contributed to Putnam's 'anti-civic X-ray.' That element is the increasing dominance of the rational selfishness model in our nation's universities, government offices, and corporate headquarters." Id. at 245-246.) .

Von Mises, Ludwig, Interventionism: An Economic Analysis, edited with a foreword by Bettina Bien Greave (Indianapolis: Liberty Fund, 1998, 2011) ("Throughout this essay, the term interventionism is used in the sense ascribed to it by many generations of economists. It covers the domestic policy of governmental interference with business." Id. at xii, fn. 1. "The Great Delusion[:] It cannot be denied that dictatorship, interventionism, and socialism are extremely popular today. No argument of logic can weaken this popularity. The fanatics obstinately refuse to listen to the teachings of economic theory. Experience fails to teach them anything. They stubbornly adhere to their previous opinions." "To understand the roots of this stubbornness we have to keep in mind that people suffer because things do not always happen the way they want them to. Man is born as an asocial selfish being and only in actual living does he learn that his will does not stand alone in the world and that there are other people too who have their own wills. Only life and experience teach him that in order to realize his plans he has to fit himself into the whole of society, that he has to accept other people's wills and wishes as facts, and that he has to adjust himself to these facts in order to achieve anything at all. Society is not what the individual would want it to be. The fellowmen of any particular individual have a lesser opinion of him than he has of himself. They do not accord him the place in society which, in his opinion, he thinks he should have. Every day brings the conceited--and who is entirely free of conceit?--new disappointments. Every day shows him that his will conflicts with those of other people." "From these disappointments the neurotic takes refuge in daydreams. He dreams of a world in which his will alone is decisive. In this world of dreams he is dictator. Only what he approves of happens He alone gives orders; the others obey. His reason alone is supreme." "In that secret world of dreams the neurotic assumes the role of dictator. There he is Caesar, Genghis Khan, Napoleon. When in real life he speaks to his fellow men he has to be more modest. He contents himself with approving a dictatorship which someone else rules. But in his mind this dictator is merely his, that is, the neurotic's, ordertaker; he assumes the dictator will do precisely what he, the neurotic, wants him to do. A man who did not apply caution and who suggested that he become the dictator himself would be considered insane by his fellow men and would be treated accordingly. The psychiatrist would call him a megalomaniac." "No one has ever favored a dictatorship to do things other than what he, the supporter of the dictatorship, considers right. Those who recommend dictatorships always have in mind the unchecked domination of his own will, even if this domination is to be implemented by someone else." Id. at 86-87.).

A long time ago-- when I had students--, I would remind them that THEY WERE RESPONSIBLE FOR THEIR LEGAL EDUCATION. And, in a large measure, that their education would be achieved in their reading of law, history, philosophy, economics, finance, psychology, sociology, literature, etc., in the wee hours of the night. The above-mentioned book warrant wee-hours-of-the-night reading.

THE TRAGEDY OF AN UNEXAMINED LIFE

Ronald Dworkin, Justice for Hedgehogs (Cambridge, Massachusetts, & London, England: Belknap/Harvard U. Press, 2011) ("Cultures have tried to teach a malign and apparently persuasive lie: that the most important metric of a good life is wealth and the luxury and power it brings. The rich think they live better when they are even even richer. In America and many other places they use their wealth politically, to persuade the public to elect or accept leaders who will do that for them. They say that the justice we have imagined is socialism that threatens our freedom. Not everyone is gullible: many people lead contented live without wealth, But many others are persuaded: they vote for low taxes to keep the jackpot full in they too can win it, even though that is a lottery they are almost bound to lose. Nothing better illustrates the tragedy of an unexamined life: there are no winners in this macabre dance of greed and delusion. No respectable or even intelligible theory of value supposes that making and spending money has any value or importance in itself and almost everything people buy with that money lacks any importance aw well. The ridiculous dream of a princely life is kept alive by ethical sleepwalkers. And they in turn keep injustice alive because their self-contempt breeds a politics of contempt for others. Dignity is indivisible." Id. at 422. "You will have gathered from Chapter 1 how I use the important words 'ethics' and 'morality.' An ethical judgment makes a claim about what people should do to live well: what they should aim to be and achieve in their own lives. A moral judgment makes a claim about how people must treat other people. Moral and ethical questions are inescapable dimensions of the inescapable question of what to do. They are inescapably pertinent even though, of course, they are not invariably noticed. Much of what I do makes my own life a better or worse one In many circumstances much of what I do will affect others. What should I therefore do? The answers you give might be negative. You may suppose that it makes no difference how you live your life and that any concern for the lives of other people would be a mistake. But if you have any reasons for those distressing opinions, these must be ethical or moral reasons." Id. at 25. Law students and lawyers should be aware that law schools disciplinary codes (even so-called 'honor codes') and the Rules of Professional Responsibility for lawyers qualify neither as as 'ethics' or 'morality' as Dworkin uses those terms. "Many people do believe, as I do not, that their racial, ethnic, religious, and linguistic connections bestow associational rights and obligations. Perhaps some of these convictions have a genetic foundation; if so they will prove particularly hard to ignore and perhaps pointless to disparage. But the idea of these special rights and obligations has been and remains a powerful source of evil. Throw a dart at a spinning globe, and the odds are good that it will land where tribes or race, religion, or language are killing each other and destroying their communities in the name of some supposed group right or destiny. These hatreds may be as enduring as they are destructive, and we should have no illusions that they will disappear or even ebb from human affairs but I insist that nothing in the arguments of this chapter lends them any moral support." Id. at 324. It is amazing how many students graduate from American law school with little or no exposure to the ideas of this important legal philosopher. For those who do plan to read Justice For Hedgehogs, see Symposium: Justice for Hedgehogs: A Conference on Ronald Dworkin's Forthcoming Book (special issues), Boston University Law Review, 90, no. 2 (April 2010).).

FOOD FOR THOUGHT, OR A FOOTNOTE TO YESTERDAY'S POST

Before the Internet, before laptop computers, smartphones, Kindles, Nooks and Ipads and Ipods, before cable television, videos on demand, DVDs, and YouTube, before Facebook, there was a book and a warning.

Neil Postman, Amusing Ourselves to Death: Public Discourse in the Age of Show Business (New York: Elisabeth Sifton Books/Viking, 1985) ("But we had forgotten that alongside Orwell's dark vision, there was another --slightly older, slightly less well known, equally chilling: Aldous Huxley's Brave New World. Contrary to common belief even among the educated, Huxley and Orwell did not prophesy the same thing. Orwell warns that we will be overcome by an externally imposed oppression. But in Huxley's vision, no Big Brother is required to deprive people of their autonomy, maturity and history. As he saw it, people will come to love their oppression, to adore the technologies that undo their capacities to think." "What Orwell feared were those who would ban books. What Huxley feared was that there would be no reason to ban a book, for there would be no one who wanted to read one. Orwell feared those who would deprive us of information. Huxley feared those who would give us so much that we would be reduced to passivity and egoism. Orwell feared that the truth would be concealed from us. Huxley feared the truth would be drowned in a sea of irrelevance. Orwell feared we would become a captive culture. Huxley feared we would become a trivial culture, preoccupied with some equivalent of the feelies, the orgy porgy, and the centrifugal bumblepuppy. As Huxley remarked in Brave New World Revisited, the civil libertarians and rationalists who are ever on the alert to oppose tyranny 'failed to take into account man's almost infinite appetite for distractions.' In 1984, Huxley added, people are controlled by inflicting pain. In Brave New World, they are controlled by inflicting pleasure, In short, Orwell feared that what we hate will ruin us. Huxley feared that what we love will ruin us." "This book is about the possibility that Huxley, not Orwell was right." Id. at vii-viii. 'Each of the media that entered the electronic conversation n the late nineteenth and early twentieth centuries followed the lead of the telegraph and the photograph, and amplified their biases. Some, such a film, were by their nature inclined to do so. Others, whose bias was rather toward the amplification of rational speech--like radio--were overwhelmed by the thrust of the new epistemology and came in the end to support it. Together, this ensemble of electronic techniques called into being a new world--a peek-a-boo world, where now this event, now that, pops into view for a moment, then vanishes again. It is a world without much coherence or sense; a world that does not ask us, indeed, does not permit us to do anything; a world that is, like a child's game of peel-a-boo, entirely self-contained. But like peek-a-boo, it is also endlessly entertaining." Id. at 77. Compulsive twitting, endless text-messaging, and constantly updating one's Facebook are, each and every one, essentially peek-a-boo for narcissists. "In searching the literature of education, you will find it said by some that children will learn best when they are interested in what they are learning. You will find it said--Plato and [John] Dewey emphasized this--that reason is best cultivated when it is rooted in robust emotional ground. You will even find some who say that learning is best facilitated by a loving and benign teacher. But no one has ever said or implied that significant learning is effectively, durably and truthfully achieved when education is entertainment. Education philosophers have assumed that becoming acculturated is difficult because it necessarily involves the imposition of restraints. They have argued that there must be a sequence to learning, that perseverance and a certain measure of perspiration are indispensable, that individual pleasures must frequently be submerged in the interests of group cohesion, and that learning to be critical and to think conceptually and rigorously do not come easily to the young but are hard-fought victories. Indeed, Cicero remarked that the purpose of education is to free the student from the tyranny of the present, which cannot be pleasurable for those like the young, who are struggling hard to to do the opposite--that is, accommodate themselves to the present." 'Television offers a delicious and . . . original alternative to all of this. We might say there are three commandments that form the philosophy of the education which television offers. The influence of these commandments is observable in every type of television programming. . . . The commandments are as follows: "Thou shalt have no prerequisites. . . ." "Thous shalt induce no perplexity. . . . "Thou shalt avoid exposition like the ten plagues visited upon Egypt. . . ." Id. at 146-148. In the age of student as customer (and notwithstanding that many American parent will give lip-service to be a 'tiger mom), the commandments have found rabid followers within the education system from preschool through graduate school. "Judges, lawyers and defendants do not regard proverbs or sayings as a relevant response to legal disputes. In this, they are separated from the tribal chief by a media-metaphor. For in a print-based courtroom, where law books, briefs, citations and other written materials define and organize the method of finding the truth, the oral tradition has lost much of its resonance--but not all of it, Testimony is expected to be given orally, on the assumption that the spoken, not the written word is a truer reflection of the state of mind of a witness. Indeed, in many courtrooms jurors are not permitted to take notes, nor are they given written copies of the judge's explanation of the law. Jurors are expected to hear the truth, or its opposite, not to read it. Thus, we may say that there is a clash of resonances in our concept of legal truth. On the one hand, there is a residual belief in the power of speech, and speech alone, to carry the truth; on the other hand, there is a much stronger belief in the authenticity of writing and, in particular, printing, This second belief has little tolerance for poetry, proverbs, sayings, parables or any other expression of oral wisdom The law is what legislators and judges have written. In our culture, lawyers do not have to be wise; they need to be well briefed." Id. at 19-20. Of course, now that the Internet has entered the courtroom, it is not clear that twenty-first-century lawyers need even be well briefed when they are able to use their laptops, smartphones, or whatever to access and search databases (or a more knowledgeable lawyer--perhaps located a continent away.) Postman book, published more than a quarter-century ago, remains relevant . . . if not even more so.).

BOOK OF THE WEEK: WEEK TWELVE, 2011

Tim Wu, The Master Switch: The Rise and Fall of Information Empires (New York: Knopf, 2010) ("It is an underacknowledged truism that, just as you are what you eat, how and what you think depends on what information you are exposed to. How do you hear the voice of political leaders? Whose pain do you feel? And where do your aspirations, your dreams of good living, come from? All of these are products of the information environment." "My effort to consider this process is also an effort to understand the practical realities of free speech, as opposed to its theoretical life. We can sometimes think that the study of the First Amendment is the same as the study of free speech, but in fact it forms just a tiny part of the picture. Americans idealize what Justice Oliver Wendell Holmes called the 'marketplace of ideas,' a space where every member of society is, by right, free to peddle his creed. Yet the shape or even existence of any such marketplace depends far less on our abstract values than on the structure of the communications and culture industries. We sometimes treat the information industries as if they were like any other enterprise, but they are not, for their structure determines who gets heard. It is is in this context that Fred Friendly, onetime CBS News president, made it clear that before any question of free speech comes the question of 'who controls the master switch." Id. at 13. "As [John] Reith would later put it, 'He who prides himself on giving what he thinks the public wants is often creating a fictitious demand for lower standards which he will then satisfy." Id. at 41 ("Mediocrity safely begets mediocrity" behold the true miracle of the modern entertainment industry." Id. at 237. Though not its subject-matter, the book will a pertinent read for those, who like me, are concerned with (a) the anti-intellectuals which is accompanying the rise of the corporate-university) or (b) the constant drift--if not forced-march--of America to a more authoritarian political system.).

ON THE REVOCATION OF MY MEMBERSHIP IN THE SOCIETY OF THOSE WHO HAVE NEVER READ THE FAERIE QUEENE

Aptekar, Jane, Icons of Justice: Iconography and Thematic Imagery in Book V of The Faerie Queene (New York & London: Columbia U. Press, 1969) ("Classical and Christian tradition concurred in the matter of the relationship between force and fraud. From earliest times, the pair were mentioned together as brother evils--but fraud was generally regarded as the elder and worse. Actually, throughout The Faerie Queene, with the regularity of a time-honored cliche, force and fraud--or guile, or sleight--are mentioned in conjunction as twin attributes of the foes of goodness. But since the evils of force and fraud generally come within the field of justice they are naturally enough, most deeply considered during the course of Book V." Id. at 108-109.).

Dunseath, T. K., Spenser’s Allegory of Justice in Book Five of The Faerie Queene (Princeton: Princeton U. Press, 1968).

Spenser, Edmund, The Faerie Queene [1590-1609], edited by Thomas P Roche, Jr with the assistance of C. Patrick O’Donnel. Jr. (London: Penguin Books, 1987) ("That Castle was the strength of all that state,/ Vntill that state by strength was pulled downe,/ And that same citie, so now reuinate,/ Had bene the keye of all that kingdomes crowne;/ Both goodly Castle, and both goodly Towne,/ Till that th'offended heauens list to lowre/ Vpon their blisse, and balefull fortune frowne./ When those gainst states and kingdomes do coniure,/ Who then can think their hedlong ruine to recure." Book V, Canto X, 26.).