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.").
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.").
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 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.) .
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.
