AMERICA'S "NATIONALISM OF DENIAL" AND "CULTURE OF SEGREGATION

Grace Elizabeth Hale, Making Whiteness: The Culture of Segregation in the South, 1890-1940 (New York: Pantheon, 1998) ("Central to the meaning of whiteness is a broad, collective American silence. The denial of white as a racial identity, the denial that whiteness has a history, allows the quiet, the blankness, to stand as the norm. This erasure enables many to fuse their absence of racial being with the nation, making whiteness their unspoken but deepest sense of what it means to be an American. And despite, and paradoxically because of, their treasured and cultivated distinctiveness, southern whites are central to this nationalism of denial." ". . . This book is about how some southerners created a common whiteness to solve the problems of the post-Civil War era and built their collectivity on not just a convention or a policy but on segregation as a culture." I have tried here, against the deepest currents of late twentieth-century life, to write of racial making, not racial meaning. Segregation--the nation's broadest twentieth-century enactment of the difference between blacks and whites--is the product of human choice and decision, of power and fear, of longing, even of love and hate. At the level of culture, I have traced the origins and contours on modern southern whiteness the ways in which segregation presented a profound cultural problem, even as, in the late 1890s, it offered a practical political and social solution. My goal has been to illuminate who white southerners imagined they were and the stories and images that enabled them to make their collectiveness powerful and persuasive and true." ". . . Why does this abstraction of the world into black and white continue to color our own imaginings? Why does the culture of segregation, despite the very real successes of the civil rights movement, still seduce and ensnare us all? An understanding of what has made whiteness a cohesive and national as well as regional category seems to me necessary in any effort to find a future beyond it, to find a twenty-first-century American collectivity outside whiteness's racial denial that will actually include us all. Our differences are emphasized everywhere--from academic scholarship to the consume marketplace. When will we try honestly with and not against history, to create a new commonality? The implication of 'making whiteness,' of course, is that whiteness can be unmade, so that other, more democratic grounds of coherence can be established and lived." Id. at. xi-xii. In late 2008, early 2009, some Americans thought that the post-racial America had finally arrived or was, at the very least, near at hand. Then they woke up to the reality that creating, then sustaining, a post-racial world requires a day-to-day commitment to actually doing difficult things each and every day. Americans collectively have never been good at anything that sustained commitment and deferred gratification. Consequentially, no one talk about the post-racial America. The lines have drawn again, more subtle, but not less deep.).

SUGGESTED FICTION IN (ENGLISH) TRANSLATION

H. G. Adler, The Journey: A Novel, translated from the German by Peter Filkins (New York: Random House, 2008) (In praise of this novel, Harold Bloom writes: "The Journey is a tribute to the survival of art and a poignant teaching in the art of survival. I tend to shy away from Holocaust fiction, but this book helps redeem an all-but-impossible genre.").

H. G. Adler, Panorama: A Novel, translated from the German by Peter Filkins (New York: Random House, 2011) ("Frau Director is not completely happy with Josef, for as a supposed philosopher he has not supported her interpretation of Spinoza's view, or perhaps he was unfamiliar with it, which Josef had to agree with, he didn't know it at all, and above all she was not his contemporary and it wouldn't be right to debate her. At this Frau Director explains firmly and yet forgivingly that the Ethics is as elementary to philosophy as one plus one, and if she were a university professor she would make students learn the entire text by heart, for in doing so, even through Spinoza can seem somewhat out of date, one gains through him an ethical foundation upon which the modern understanding of the soul rests, much like a young seedling on an old vine, pardon me, I mean stump. Frau Director pauses for a moment and sighs that unfortunately it's impossible for her to attain the highest level of thought when one has to simultaneously muck about in the raw reality of the everyday world, the noble being like a fragrance that floats away, shallowness triumphing amid one's daily cares, and with a sidelong glance at the Director she adds that one can indeed see how her husband sits by above it all, which only makes her want to stir him up a bit. Josef looks at him and asks himself against his will whether the Director doesn't indeed look more like an ape than a man . . . " Id. at 258-259.).

Nathacha Appanah, The Last Brother: A Novel, translated from the French by Geoffrey Strachan (Minneapolis: Graywolf Press, 2007, 2010) (From the backcover: "As 1944 comes to a close, nine-year-old Raj is unaware of the war devastating the rest of the world. He lives in Mauritius, a remote island in the Indian Ocean, where survival is a daily struggle for his family. After a brutal beating lands Raj in the hospital of a prison camp, he meet David, a boy his own age. David is a refugee, one of a group of Jewish exiles now indefinitely detained in Mauritius. When a massive storm on the island brings chaos and confusion to the camp, Raj is determined to help David escape.").

Marcellus Emants, A Posthumous Confession, translated from the Dutch and with an introduction by J. M. Coetzee (New York: New York Review Books, 1986) (From the backcover: "Termeer, the narrator of A Posthumous Confession, is a twisted man and a troubled one. The emotionally stunted son of a cold, forbidding, and hypocritical father, Termeer has only succeeded in living up to his parents' low expectations when, to his own and others' astonishment, he finds himself wooing a beautiful and gifted woman--a woman whose love he wins. But instead of finding happiness in marriage, Termeer discovers it to be a new source of self-hatred, hatred that he turns upon his wife and child. And when he becomes caught up in an affair with a woman as demanding as his own self-loathing, he is driven to murder." "What is the self, and how does it evade or come to terms with itself? What can make it go permanently, lethally wrong? Marcellus Emants's grueling and gripping novel--a late-nineteenth-century tour de force of psychological penetration--is a lacerating exposition of the logic of identity that looks backward to Dostoyevsky, forward to Simenon, and beyond to the confessional literature, whether fiction or fact, of our own day.").

Mikhail Bulgakov, White Guard, translated from the Russian by Marian Schwartz, with an introduction by Evgeny Dobrenko ((New Haven & London: Yale U. Press, 2008) (" 'But you can't build your whole life on signals and whatever revolvers you have there. That's not even the point. I'm speaking in general, generalizing the instance, so to speak. The point is that the most important thing--respect for property--has disappeared. And if that's the case, it's all over. If that's the case, we're done for. I'm a convinced democrat by nature and a man of the people myself. My father was an ordinary foreman on the railroad. Everything you see here, everything those swindlers stole from me today, it was all earned and made with my hands alone. Believe me, I've never stood guard over the old regime. On the contrary, I'll tell you a secret, I'm a Constitutional Democrat, but now that I've seen with my own eyes what all this can lead to, I swear to you, I now have the sinister belief that only one thing can save us.' From somewhere out of the soft shroud that engulfed Carp, a whisper reached him. 'Autocracy. Yes. The nastiest dictatorship you can imagine. Autocracy.' " Id. at 251-252.).

Theodor Fontane, translated from the German by Douglas Parmee, afterword by Phillip Lopate (New York: New York Review Books, 1964, 2011) (From the backcover: "How a couple can slowly drift apart, until one day they find themselves in a situation which is nothing they ever wished for but from which they cannot go back, is at the heart of this timeless story of everyday life. Theodor Fontane's great gift is to tell the story effectively in his characters' own words, listening to how they talk and fail to talk to each other, watching them turn away from their own true feelings as much as from each other. Irretrievable is a nuanced, affectionate, enormously sophisticated, and profoundly humane reckoning with the blindness of love.).

Carlos Fuentes, Destiny and Desire: A Novel, translated from the Spanish by Edith Grossman (New York: Random House, 2011) ("Professor Antonio Sangines stood out, in every sense, in the Faculty of Law. Tall, distinguished, endowed with an aquiline profile, melancholy brows, and eyes at once serious, cynical, mocking, and tolerant under heavy lids, he appeared in class immaculately dressed, always in three-piece suits (I never saw hm combine an unmatched sports jacket and trouser), double-breasted, buttoned to emphasize the high, stiff collar, the monochrome tie, and his only concessions to fantasy, light brown shoes and cuff links won at raffles or bought with love, for it was not impossible to imagine Licenciado Sangines buying cuff links decorated with the figure of Mickey Mouse. . . ." "With it all, Professor Sangines's elegance was seen as an anachronistic eccentricity, and he repaid the compliment by viewing the style of the young as decadence unaware of itself. . . ." "This was what, with a certain macabre, decadent air, attracted me to this teacher who taught the class in International Public Law with a degree of meticulousness far above the abilities of the students, for he, far from filling us with facts, expounded on two or three ideas and supported them with references to a couple of fundamental texts, inviting us to read them seriously through convinced--a glance at the flock was enough--no one would follow his advice. That is: He did not order, he suggested. It did not take him long to realize I not only listened to him but for the next month responded to his questions in class--until then simply a cry on the desert--with respectful alacrity. Sangines suggested The Prince. I read Machiavelli. Sangines indicated The Social Contract. I immersed myself in Rousseau." Id. at 82-83.).

Andre Malraux, Man's Fate (La Condition Humaine), translated rom the French by Haakon M. Chevalier, with a foreword by John Leonard, and illustrations by Madeline Sorel (New York: Random House, 1934, 1984) ("They would not pay, unless the minister formally intervened, because Ferral was not one of them. Not married: stories about women that had become known. Suspected of smoking opium. He had turned down the Legion of Honor. Too much pride to be either a conformist or a hypocrite. Perhaps great individualism could be fully developed only on a dung-heap of hypocrisy: Borgia was not a pope by accident. . . . It was not at the end of the eighteenth century among the French revolutionaries, drunk with virtue, that the great individualists would be found, but in the Renaissance, in a social structure which was Christianity, obviously. . . ." Id. at 341-342. "Any man who asks advice about investing his money from a man he does not know intimately, deserves to be ruined." Id. at 347. From John Leonard's Introduction: "Man's Fate dramatizes existentialism better than most of Camus and all of Sartre's Roads to Freedom trilogy. It understands terrorism with a subtlety still elusive to such brainy novelists as Moravia, Boll and Mary McCarthy. It humanizes Marxism. maybe romantically. It anticipates fascism as metastasis. It announces feminism early. It predicts the future course of the Chinese Revolution. It takes the Third World seriously. . . . And these ideas have heads and bodies; they love and dream." Id. at xviii-xix.).

Henning Mankell, The Troubled Man (A Kurt Wallander Novel), translated from the Swedish by Laurie Thompson ((New York: Knopf, 2011) ("So it all began with a fit of rage. This story about the realities of politics, this journey into the swamps where truth and lies are indistinguishable and nothing is clear." Id. at 5. Also, see Janet Maslin, "Detective Meets His End, Sort of," NYT, Monday, 3/38/2001.).

Yuri Olesha, Envy, translated from the Russian by Marian Schwartz, with an introduction by Ken Kalfus (New York: New York Review Books, 2001) (From the backcover: "Andrei is a model Soviet citizen, a swaggeringly self-satisfied mogul of the food industry who intends to revolutionize modern life with mass-produced sausage. Nikolai is a loser, Finding him drunk in the gutter, Andrei gives him a bed for the night and a job as a gofer. Nikolai takes what he can, but that doesn't mean he's grateful. Griping, sulking, grovelingly abject, he despises everything Andrei believes in, even if he envies him his every breath." "Producer and sponger, insider and outcast, master and man fight back and forth in the pages of Olesha's anarchic comedy. It is a contest of wills in which nothing is sure except the incorrigible human heart.").

Boleslaw Prus, The Doll, translated from the Polish by David Welsh, revised by Dariusz Tolczyk & Anna Zaranko, introduction by Stanislaw Baranczak (New York: New York Review Books, 1996) (From Baranczak's Introduction: "In our age of shattered utopia, amidst the overwhelming odour of 'decay', perhaps the most persistent question is the one that this agroraphobic, myopic, yet bold and far-sighted nineteenth-century realist felt compelled to ask: how, without being blindly naive, can one remain an 'idealist' in a 'decayed' world? Or, to put it another way, how to continue in the belief that we can become something better than we are, while almost all available evidence seems to point to the contrary?" Id. at xv.).

Victor Serge, Conquered City, translated from the French by Richard Greeman (New York: New York Review Books, 2011) ("What a dead thing we have made of history in our libraries! We looked for the explanation of the present in the past. It's the present which explains the past. Real history will be written when men's eyes are open." Id. at 177. From the backcover: "1919-1920: St. Petersburg, city of the czars, has fallen to the Revolution. Camped out in the splendid palaces of the former regime, the city's new masters seek to cement their control, even as the counterrevolutionary White Army regroups. Conquered City . . . is structured like a detective story, one in which the new political regime tracks down and eliminates its enemies--the spies, speculators, and traitors hidden among the mass of common people." "Conquered City is about terror: the Red Terror and the White Terror. But mainly about the Red, the Communists who have dared to pick up the weapons of power--police, guns, jails, spies, treachery--in the doomed gamble that by wielding them righteously, they can put an end to the need for terror, perhaps forever. Conquered City is their tragedy and testament.").

Olga Slavnikova, 2017, translated from the Russian by Marian Schwartz (New York & London: Overlook/Duckworth, 2010) (" 'Do you think I'm greedy? Tanya shook her head with a sarcastic smile. 'What's money to me? I'll tell you. Just a matter of life and death. And I'm talking about my health. Poisoning would have been pretty easy for me; Vasily Petrovich wasn't really paying attention. A couple of shots at five euros apiece would have taken care of everything. But you have to understand, a woman has only one illness: old age. Up until age thirty we're all equal, we all have our rights. After that, some keep living and some start dying. Before, the law of nature functioned identically for everything. So old age wasn't so repugnant. But now? We have everything now: serums, plastic surgery, nanotechnologies. A woman over fifty has to spend a few thousand euros a month on herself. And the longer she lasts, the more she spends. But even if she's a top manager, an irreplaceable employee--her powers tap out. And they send the old horse that was ridden too hard to its deserved respite! If you're pension's good enough, you can eat and pay for your apartment. But health insurance? Don't make me laugh! Even dentistry now is for separate money. And where am I going to get that? Who's going to tell me that? No one stays eternally young, of course. But have you seen rich old women? They're like dolls! And all the rest are like dirt. Do you realize we're talking about my life? Are you aware that I was born and I'm going to die?' " Id. at 396. From the bookjacket: "In the year 2017 in Russia--exactly 100 years after the revolution--poets and writers are obsolete, class distinctions are painfully sharp, and spirits intervene in the lives of human form their home high in the mythical Riphean Mountains.").

Christa Wolf, In the Flesh: A Novel, translated from the German by John S. Barrett (Boston: A Verba Mundi Book/David R. Godine, 2005) ("You watch critically and suspiciously as I tediously force down the nice, soft cream of wheat you've brought me. Spoonful by spoonful. Baby food. Just don't tell me again that nobody can make cream of wheat like your grandmother." Id. at 122.).

Stefan Zweig, Beware of Pity, translated from the German by Phyliss and Trevor Blewitt, introduction by Joan Acocella (New York: New York Review Books, 1976, 2006) (From the backcover: "Hofmiller, an Austro-Hungarian cavalry officer stationed at the edge of the empire, is invited to a party at the home of a rich local landowner, a world away from the dreary routine of the barracks. The surroundings are glamorous, wine flows freely, and the exhilarated young Hofmiller asks his host's lovely daughter for a dance, only to discover that sickness has left here painfully crippled. It is a minor blunder that will destroy his life, as pity and guilt gradually implicate him in a well-meaning but tragically wrongheaded plot to restore the unhappy invalid to health.").

Stefan Zweig, Chess Story, translated from the German by Joel Rotenberg, introduction by Peter Gay (New York: New York Review Books, 1976, 2006) (From the backcover: "On a great ocean liner, the world champion of chess confronts a lawyer with a surprising talent for the game in a tense contest of wit and will. How the lawyer acquired his skill and at what terrible cost are the substance of a story, in which, at the same time, quietly but unmistakably, the death knell of the Enlightenment is sounded.").

Stefan Zweig, Journey Into the Past, translated from the German and with an afterword by Anthea Bell, introduction by Andre Aciman (New York: New York Review Books, 2009, 2011) ("It is not in human nature to live entirely on memories, and just as the plants and every living structure need nourishment from the soil and new light from the sky, if their colours are not to fade and their petals to drop, even such apparently unearthly things as dreams need a certain amount of nourishment from the senses, some tender pictorial aid, or their blood will run thin and their radiance be dimmed." Id. at 45-46.).

Stefan Zweig, The Post-Office Girl, translated from the German by Joel Rotenberg (New York: New York Review Books, 1982, 2008) ("You almost always fail when you go against your own law. I don't mean legal rules and regulations, or the Austrian constitution, or the police. Those one could deal with. But everyone has his internal law. One person rises, another falls; you rise if you're meant to rise, fall if you're meant to fall So far I've never succeeded at anything. You too. Maybe even probably, everything 's rigged so that we'll go under. . . ." Id. at 256. From the backcover: "The logic of capitalism, boom and bust, unremitting and unforgiving. But what happens to human feelings in a completely commodified world? In The Post-Office Girl, Stefan Zweig, a deep analyst of the human passions, lays bare the private life of capitalism.").

BOOK OF THE WEEK: WEEK TWENTY-TWO, 2011

Manning Marable, Malcolm X: A Life of Reinvention (New York Viking, 2011) ("My primary purpose in this book is to go beyond the legend: to recount what actually occurred in Malcolm's life. I also present the facts that Malcolm could not know, such as the extent of illegal FBI and New York Police Department surveillance and acts of disruption against him, the truth about those among his supporters who betrayed him politically and personally, and the identification of those responsible for Malcolm's assassination." Id. at 12).

GILBERT "GIL" SCOTT-HERON (APRIL 1, 1949 – MAY 27, 2011)

RALPH WALDO EMERSON, MAY 25, 1803 - APRIL 27, 1882

Emerson, Ralph Waldo, Selected Journals 1820-1842, edited by Lawrence Rosenwald (New York: Library of America, 2010) ("If you will, you may read nothing by song books & fairy tales, all the year round, but if you would know the literature of any cultivated nation, you must meet the majestic ideas of God, of Justice, of Freedom, of Necessity, of War, & of Intellectual beauty, as the subject & spirit of volumes & eras." Id. at 435-436.).

Emerson, Ralph Waldo, Selected Journals 1841-1877, edited by Lawrence Rosenwald (New York: Library of America, 2010) ("Books. It is taking a liberty with a man to offer him a book as if he also had not access to that truth to which the bookmaker had access. Each of the books, if read, invades me, displaces me; the law of it is that it should be first, that I should give way to it, I who have no right to give way and, if I would be tranquil & divine again, I must dismiss the book." "And yet I expect a great man to be a good reader or in proportion to the spontaneous power should be the assimilating power." "Every book serves us at last only by adding some one word to our vocabulary, or perhaps two or three. And perhaps that word shall not be in the volume or shall only be the author's name. And yet there are books of no vulgar origin but the work & the proof of faculties so comprehensive, so nearly equal to the universe which they paint, that although one shuts them also with meaner ones, yet he says with a sigh the while, this were to be read in long thousands of years by some stream in Paradise. Swedenborg, Behman, Plato, Proclus, Rabelais, & Greaves." Id. at 115-116. On Rabelais: "It is no small thing to know of a man that he does not accept the conventional opinions & practices. That non-conformity will remain a perpetual remembrancer & goad, & every inquirer will have to dispose of him in the first place." Id. at 137. "In reading books as in seeing men, one may well keep, if he can, his first thoughts; for they will soon be written over by the details of argument & sentiment in the book, and yet they are a juster judgment of the book than a digest of the particular merits can yield. As W.T. said of the first impression of a face, that after your friend has come & gone many times & now is long absent that first seen face comes back to the memory & not the more intimate knowledge of recent days." Id. at 257. "If a man read a book because it interests him and read in all directions for the same reason, his reading is pure, & interests me, but if he read with ulterior objects, if he read that he may write, we do not impute it to him for righteousness. In the first case he is like one who takes up only so much land as he uses; in the second, he buys land to speculate with." Id. at 376. "The costliest benefit of books is that they set us free from themselves also." Id. at 729. "It takes twenty years to get a good book read. For each reader is struck with a new passage & at first only with the shining & superficial ones, & by this very attention to these the rest are slighted. But with time the graver & deeper thoughts are observed & pondered. New readers come from time to time, --their attention whetted by frequent & varied allusions to the book,--until at last every passage has found its reader & commentator." Id. at 869. "It is with a book as it is with a man. We are more struck with the merits of a man who is well-mannered, wel-drest, & well-mounted, than with those of my neighbors in shoddy; and I am a little ashamed to find how much this gay book in red & gold with a leaf like vellum & a palatial page, has opened my eyes to the merits of the poet whose verses I long since coldly looked over in newspapers or monthlies or in small cloth-bound volumes." Id. at 857. "It is a great loss to lose the confidence of a class; yet the scholar, the thinker goes on losing the ear & love of class after class who once sustained him." "The scholar isolates himself by the sweet opium which he has learned to chew, & which he calls muses, & memory, & philosophy. Now & then,, he meets another scholar, & then says, 'See, I am rewarded for my truth to myself & calling, by the perfect sympathy I here find.' But, meantime, he is left our more & more, & at last utterly, by society, & his faculties languish for want of invitation, & objective work; until he becomes the very thing which they taunt him with being, a selfindulgent dreamer. In an intellectual community, he would be steeled & sharpened & burnished to a strong Archimedes or Newton. Society makes him the imbecile it accuses him of being." Id. at 616. Might might the following be Emerson's anticipatory response to today's Tea Party?: "The state is our neighbors; our neighbors are the state. It is a folly to treat the state as if it were some individual arbitrarily willing thus and so. It is the same company of poor devils we know so well, of William & Edward & John & Henry, doing as they are obliged to do, & trying hard to do conveniently what must & will be done. They do not impose a tax. God & the nature of things imposes the tax, requires that the land shall bear its burden, of road, & of social order, & defence; & I confess I lose all respect for this tedious denouncing of the state by idlers who rot in indolence, selfishness, & envy in the chimney corner." Id. at 248. "Laws of the world. The fish in the cave is blind; such is the eternal relation between power & use." Id. at 377. "He who does his own work frees a slave, He who does not his own work, is a slave-holder." Id. at 785. Written in 1861, still relevant today: "Do the duty of the day. Just now, the supreme public duty of all thinking men is to assert freedom. Go where it is threatened, & say, "I am for it, & do not wish to live in the world a moment longer than it exists." Id. at 759. One of the saddest state of affairs is the current lack of believe, particularly among many academics, of a minor but essential freedom: academic freedom. Intellectual life is dying, if not already dead, in American universities as more and more universities move to the business model that knows only dollars and cents, incomes and expenses, and cost accounting. "The aphorism of the lawyers non curat de minimis praetor, like most of their wisdom is to be reversed; for the truth is, in minimus existit natura. In nature, nothing is insignificant because it is small. The bee is essential to the marriage of the plants." Id. at 804. "'The magistrate is not concerned with leasts," and "nature works in leasts'." Id. at 967 (editors notes).).

JAPAN, POLITICS, LAW, AND ECONOMICS

Miwa, Yoshiro, & J. Mark Ramseyer, The Fable of the Keiretsu: Urban Legends of the Japanese Economy (Chicago & London: U. of Chicago Press, 2006).

Ramseyer, J. Mark, Odd Markets in Japanese History: Law and Economic Growth (New York, New York & Cambridge, England: Cambridge U. Press, 1996) ("In significant part, the history of law in imperial Japan is a history of the way courts enforced claims to scarce resources. More simply, it is a history of property rights. As one court (somewhat sanctimoniously) put it is 1918, 'the inviolability of the right to property is one of the fundamental principles of the Imperial Constitution.' Throughout the period, Japanese courts enforced private claims to property, and labor remained an asset controlled by the laborer himself or herself." Id. at 163. "There are some morals here about writing history: that markets matter in counterintuitive ways; that peasants and women sometimes act more selfishly and resourcefully than bourgeois scholars like to admit; that secondary sources can be wrong. There is a more basic moral too: that writing history without rational-choice theory carries large risks. Most scholars realize that one cannot understand the Tokyo Stock Exchange without that theory. But the importance of the theory goes deeper. Across a wide variety of institutions, across a wide realm of behavior, across a wide expanse of time, across a wide range of relationships--across all of this, people scheme, exchange, calculate, and thing. Rational-choice theory is about some of the things that happen when they do. Id. at 164.).

Ramseyer, J. Mark, Japanese Law: An Economic Approach (Chicago & London: U. of Chicago Press, 1998) ("In this book, we explain explain the basics of Japanese law in a way that we hope you--whether lawyer, law student, or legal scholar--will find clear, amusing, and maybe even annoying. If you read it through, we shall consider it a success. If you turn to the index to solve the legal problem you face, we shall think it a failure." "We offer no essence' of Japanese law in this book. . . We offer no essence, no core, no gist--because there is none. Law is not a coherent system that follows central organizing principles--not here, not in Japan, not even in those classic code countries like Germany and France. Anyone who claims otherwise is either wrong or lying. Law is an unruly, disjointed corpus. It reflects nothing more than the accumulated exigencies of lawmaking by legislatures, courts, and administrative agencies over time." "In Japan, the extant legal system reflects more than a century of lawmaking, During the earliest decades, Japan was an oligarchy. During the latest decades, it has bee a fully functioning democracy. During the decades between, it was sometimes a democracy, sometimes a police state, and sometimes an occupied colony. The law in place today reflects lawmaking during that entire period." Id. at xi-xii.).

Ramseyer, J. Mark, & Eric B. Rasmusen, Measuring Judicial Independence: The Political Economy of Judging in Japan (Chicago & London: U. of Chicago Press, 2003) (From the book jacket: "The Japanese Constitution, like many others, requires that all judges be 'independent in the exercise of their conscience and bound only by this Constitution and its laws.' Consistent with this requirement, Japanese courts have long enjoyed a reputation for vigilant independence--an idea challenged only occasionally and most often anecdotally. But in this book, J. Mark Ramseyer and Eric B. Rasmusen use the latest statistical techniques to examine whether that reputation always holds up to scrutiny--whether, and to what extent, the careers of lower court judges can be manipulated to political advantage." "On the basis of careful econometric analysis of career data for hundreds of judges, Ramseyer and Rasmusen find that Japanese politics do influence judicial careers, discreetly and indirectly: judges who decide politically charged cases in ways favored by the ruling party enjoy better careers after their decisions than might otherwise be expected, while dissenting judges are more likely t find their careers hampered by assignments to less desirable positions." In short, go along to get along.).

Ramseyer, J. Mark, & Frances M. Rosenbluth, The Politics of Oligarchy: Institutional Choice in Imperial Japan (New York, New York, & Cambridge, England: Cambridge U. Press, 1995) ("Neither bank consolidation nor Japan's foreign exchange policies were the result of a bureaucratic plan to achieve rapid economic development. Instead, the Kenseikai/Minseito engineered the bank consolidation policy of 1927 a part of an electoral strategy to cripple its rival Seiyukai by destroying the small bank community on which the Seiyukai relied. Even clearer is the partisan flip-flopping on Japan's foreign exchange regime. By selling anti-inflation policies, the Kenseikai/Minseito raised large campaign contributions with which they competed in elections." "Some scholars have lamented the fact that the major political parties were spending all their resources fighting each other when they had a common enemy that was far worse. While the parties were winning electoral battles against each other, they were losing the greater struggle for ultimate control against the military. As we argued in Chapter 4, however, stable collusion between parties was not for them an individually optimal strategy. Given the institutional framework they had inherited from the oligarchs, the parties behaved exactly as one would expect." Id. at 117. From the book jacket: "After reviewing scores of original documents and secondary literature, Ramseyer and Rosenbluth conclude that the oligarchs were much like the rest of the human race--prone to self-interest and contentiousness. By failing to cooperate, the oligarchs were unable to protect and enlarge political support outside the oligarchy, paradoxically they weakened themselves by enlarging the segment of the population that was sufficiently organized to lobby for political power. Ultimately, it was the oligarchys very inability to agree among themselves on how to rule that prompted them to release the military from civil control--a decision that was to have disastrous consequences for Japan and for the rest of the world.).

BOOK OF THE WEEK: WEEK TWENTY-ONE, 2011

Judith Stein, Pivotal Decade: How the United States Traded Factories for Finance in the Seventies (New Haven & London: Yale U. Press, 2011) ("Postwar U.S. liberalism, created by the New Deal, was rooted in the notion that high wages and regulated capital created and sustained U.S. prosperity. During the Age of Compression, 1947-73, income and wealth were mildly redistributed, even as economic growth soared. At the same time, the nation's leaders cemented Cold War alliances with foreign access to the U.S. market. In 1945, U.S. economic superiority was so vast that one-sided trade policies did not matter. Over time, they ultimately did. And when high oil prices and economic competition from Japan and Germany battered the economy in the 1970s, new policies--international and domestic--were needed. The fire bell in the night came in 1971 when the U.S. suffered its first trade deficit since 1893. The Age of Compression officially ended in 1973 when wages began to stagnate, largely because of a sharp drop in productivity. Restoring growth was a project on the left and right throughout the 1970s. No one imagined that the productivity decline would continue until 1995 and that wage growth would continue to fall short of the achievements of the postwar period. Few predicted that U.S. trade deficits would remain and grow, producing the global imbalances between consuming nations (United States) and producing nations (China) that are at the rot of the contemporary global economic crisis." "Yet telltale signs of this future were visible during the 1970s. . . ." Id. at xi. "This book explains how the Age of Compression became the Age of Inequality. Why did the nation replace the assumptions that capital and labor should prosper together with an ethic claiming that the promotion of capital will eventually benefit labor--trading factories for finance--a very different way of running a nation that produced very different results? The Age of Compression was a product of the Democratic Party, but a Republican Richard Nixon governed according to its ethics. The Age of Inequality was created by the GOP, but Democrat Bill Clinton lived by its rules. Party and ideology are close but do not always coincide. This, unlike other historians who draw a sharp line in 1980, my key period is 1976-80, when the Democrats controlled both house of Congress and the presidency. The challenges of the globalizing world were played out within the governing Democratic Party. When the Democrats failed to restore prosperity, the electorate voted for Republicans, who the claimed that their victory as a rejection of the ideas and practices of the Age of Compression. Simply saying it did not make it true. But with the power of his office, President Reagan did create a new national blueprint. The new principles took hold. And, in many ways, they are still with us." Id. at xii. "If the left wing solutions were powered by labor, the conservative ones reflected business, especially big business, which felt besieged. Between September 1974 and September 1975 top corporate executives . . . held eight three-day meetings to explore the current and future role of business in U.S. society. Most in this anxiety-ridden group believed that 'the have-nots are gaining steadily more political power to distribute the wealth downward. The masses have turned to a larger government.' Expansionary policies--tax cuts, budget deficits, cheap money, and the like--would inevitably produce inflation, which could be managed only by a system of wage and price controls, leading to more state control. The businessmen believed that the government, responding to the have-nots, controlled and allocated too much of the nation's wealth. They feared that the trend toward government financing, subsidy, and control wold end up socializing investment decisions. And, on the basis of the economic troubles of the utilities, airlines, and railroads, they concluded that government regulation always ignored the imperatives of capital accumulation. Many though that only a sharp recession would sober up their fellow citizens." "The corporate elite was mainly interested in tax and spending changes, but it embraced deregulation as well. The goal of deregulation was to remove the hand of government from the alleged efficiencies of the market. Reality was more complicated, which was why deregulation was a secondary or tertiary business goal. Every market has rules created by government. Deregulation simply created new rules that gave advantages to new companies in an industrial sector. Regulatory changes are neither conservative nor liberal and have been implemented by governments on the right and on the left. So the question became, could U.S. regulators meet the new economic and technological conditions? Conservatives said no, only markets can produce efficiency. Some on the left, like Ralph Nader, also said no, believing that the regulatory commissions were inevitably dominated by the industries they regulated. Senator Edward Kennedy agreed. Kennedy called 'the New Deal faith in the science of the regulatory art a delusion,' and said that agency independence 'as a practical matter has come to mean independence from the public interest.' Was this theory of industry capture valid? Advocates cited Nixon's appointment of airline executives to the Civil Aeronautics Board (CAB) as a reward for campaign contributions. But Ford appointed John Robson, an airline critic. Most historians conclude that the story of railroad regulation was the story of shippers', not railroad, control." "Whatever the theory, government could shape markets and technology but could not ignore them. . . . " Id. at 123-124. This is a very worthwhile read. Professor Stein has done an excellent job of underscoring the historical roots of our current economic mess and, perhaps, why we are not on the right track to correcting it. One question, regarding corporate management, concerns whether management should aim to maximize a firm's short-term value, or whether management should sacrifice short-term value in favor of a firm's long-term value. Which is not to say that maximizing a firm's value is, or should be, management's only aim. That said, sometimes it seems that, in American politics and American society broadly, the idea of thinking in terms of the long-term national welfare is always compromise (if not completely ignored) in favor of the short-term, short-sided, local--if not individual-welfare. Ronald Reagan did not ask whether voters thought the country was better off than it was four-years ago; he asked whether voters thought they (as individuals) were better off than they were four-years ago. To be fair, a democrat might have framed the query the same way had the shoe been on the other foot. The point is that Americans seem, at least to me, basically incapable of long-range thinking or planning on a national level, especially where this might require coordinated efforts. It is that fear that any sort of coordinated planning and thinking is the road to socialism and communism. Yet, any government worth the name must think long-term. Things do not just work out for the best on their own.).

DEAR MR. CAMPING,

Speaking just for myself, of course . . . I'm still here? Have a nice day!

"NO SUCH THING AS A GENTLE VERSION OF BONDAGE"

Adam Goodheart, 1861: The Civil War Awakening (New York: Knopf, 2011) ("This book . . . tells a story foreshadowing things to come. It is not a Civil War saga of hallowed battlefields drenched in blood, much less of which general's cavalry came charging over which hill. It is a story, rather, of a moment in our country's history when almost everything hung in the balance." "It is a story of how some people clung to the past, while others sought the future; how a new generation of Americans arose to throw aside the cautious ways of its parents and embrace the revolutionary ideals of its grandparents. The battleground of that struggle was not one orchard or wheat field, but the quickly growing country itself." Id. at 22. "And yet Hampton's picturesque, shabby-genteel exterior hid far shabbier, and far less picturesque, realities under its surface. One visiting Northerner, asking an elderly slave if she had a 'good' master, was assured that the man was 'a kind--werry kind massa!' And then she added: 'Why, bless de Lor' . . . he nebber put wires in his cowhides in all his life!' The woman, of course, was making a larger point: a whip without metal wires woven into it is still a whip. There was no such thing as a 'good' slaveholder; no such thing as a gentle version of bondage." Id. at 306.).

COMPLEX LITIGATORS

Philip Matyszak, Gladiator: The Roman Fighter's [Unofficial] Manual (London: Thames & Hudson, 2011) (Very few people are aware of the fact that, well before the metaphor of 'lawyer as hired gun' took hold, there was the view of lawyers, especially those who engage in complex, high-stakes litigation, as gladiator. I kid you not. And, finally, we have an updated [unofficial] manual. "Welcome the world of the gladiator, a strange world full of contradictions. This is where the dishonoured learn to live and die with honour. Here, the artist is as despised as his art is respected; and in turn many gladiators scorn the spectators at the arena, but yet are dying --sometimes literally-- to entertain them. . . . " "For the right kind of person the arena offers riches, fame, and personal redemption, and even the wrong kind of person gets the chance of an honourable death. And anyone considering a gladiatorial career is probably well aware that worse things can happen. In fact many gladiators choose the profession precisely because those worse things would otherwise happen to them in the near future." Id. at 6. As you read this manual, you may well sense the demise of the profession. The modern gladiator/litigator no longer goes into battle with the cry, "WIN, or DIE!" In ancient times, when two gladiators met in combat, only the victor got to live, got to go home, and got to fight another day. In our postmodern times, the losing gladiator/litigator not only gets to live, gets to go home, and gets to litigate another day, but, in all probability, gets to go golfing the next weekend with the winning gladiator/litigator. Spartacus would not understand!).

"WAR IS STILL WITH US"

Adam Hochschild, To End All Wars: A Story of Loyalty and Rebellion, 1914-1918 (Boston & New York: Houghton Mifflin Harcourt, 2011) (" ' A wide road leads to war,' goes a Russian proverb. 'A narrow path leads home.' " Id. at 93. "But, gruesome as choking on gas undoubtedly was, was it really any worse than having your body riddled with steel shrapnel? Or than having your lungs bruised to pulp by an artillery shell's blast even if the shrapnel missed you? What made gas warfare provoke such rage, the historian Trevor Wilson suggests, was something else. For all of recorded history soldiers had believed that victory went to the manly, the fearless, and the daring. Now, with deadly gas brought to you not from the hand of the enemy you could see and slay, but by the very wind, all bravery seemed useless." Id. at 141-142. "In part, this book is the story of some of these war resisters and of the example they set, if not for their own time, then perhaps for the future. I wish theirs was a victorious story, but it is not. Unlike, say, witch-burning, slavery, and apartheid, which were once taken for granted and are now officially outlawed, war is still with us. Uniforms, parades, and martial music continue to cast their allure, and the appeal of high technology has been added to that; throughout the world boys and men still [and, now, girls and women] dream of military glory as much as they did a century ago. And so, in much greater part, this is a book about those who actually fought the war of 1914-1918, for whom the magnetic attraction of combat, or at least the belief that it was patriotic and necessary, proved so much stronger than human revulsion at mass death or any perception that, win or lose, this was war that would change the world for the worse." Id. at xvii. Also see Christopher Hitchens, "Mortal Debate," The NYT Book Review, Sunday, 5/15/2011.).

WITHOUT COMMENT

Harold Bloom, The Anatomy of Influence: Literature as a Way of Life (New Haven & London: Yale U. Press, 2011).

Harold Bloom, The Anxiety of Influence: A Theory of Poetry (New York: Oxford U. Press, 1973).

DISSENT; EDUCATION; UNPOPULARITY

Cardozo, Benjamin N., Law and Literature and Other Essays and Addresses (New York: Harcourt Brace, 1931) (From ‘Law and Literature’: “Sometimes, as I have said, there is just a suspicion of acerbity, but this, after all, is rare. More truly characteristic of dissent is a dignity, an elevation, of mood and thought and phrase. Deep conviction and warm feeling are saying their last say with knowledge that the cause is lost. The voice of the majority may be that of force triumphant, content with the plaudits of the hour, and the recking little of the morrow. The dissenter speaks to the future, and his voice is pitched to a key that will carry through the years. Read some of the great dissents, the opinions, for example of Judge Curtis in Dred Scott vs. Sandford, and feel after the cooling time of the better part of a century the glow and fire of a faith that was content to bide its hour. The prophet and the martyr did not see the hooting throng. Their eyes are fixed on the eternities.” Id. at 3, 36. From the ‘The Home of the Law’: ‘Well, education means many things . . . . There is education in books, but education is life also; education in solitude, but education also in the crowd; education in study, but education even greater in the contagion of example. Ask any youth who has gone through a university what part of his training has counted most in later life. Almost invariably, I am sure, the first place will be given, not to shreds of information, the book-learning of the schools, but to the transfigured sense of values that is born of companionship with lofty minds, the living and the dead. There is more to be bestowed by Alma Mater than the possession of a sheep-skin,. There is more in membership in the bar than a license to sign a brief or intone a prosy argument.” Id. at 142, 145-146. “Popular the members of our profession have never been able to become through all the ages of its history. Perhaps that is one of the reasons why they have clung to one another with the solidarity that everywhere is born of persecution or resistance. It is a feature of nearly every Utopia, from Plato down to H. G. Wells, that there has been no place in it for lawyers.” Id. at 153-154.).

BOOK OF THE WEEK: WEEK TWENTY, 2011

Rae Langton, Sexual Solipsism: Philosophical Essays on Pornography and Objectification (Oxford & New York: Oxford U. Press, 2009) (This is a book I read when I was engaged in thinking about revising and, then, teaching my course of Feminist Legal Theory. I decided not to teach the course, but the reading this and other books made the otherwise fruitless effort nevertheless worthwhile. From the essay, "Projection and Objectification": "Unwise though it is speculate, it seems unlikely that the importance of autonomy and projection will go away. One needs no crystal ball to guess that the forces of global capitalism will be around for a while, and with them a tendency to treat people not only as consumers but as commodities, items for use and consumption, and that this is likely to have a continuing effect on women's lives, as the ever-burgeoning sex industry illustrates. One can anticipate on-going scope for a feminist version of the Kantian idea that there is a dignity in human nature having its ground in autonomy, and that by virtue of this worth 'we are not for sale at any price'. And one needs no crystal ball to guess that the substitution of the virtual for the real will becoming an increasing fact of life; and that projection will be a topic of increasing importance, as people increasingly substitute virtual action for action, virtual experience, and virtual human relationships for human relationships." Id. at 241, 244-245. From the bookjacket: "Rae Langton here draws together her ground-breaking working on pornography and objectification, and shows how both involve a kind of solipsism, a failure to treat women as fully human. She argues that pornography is a speech act that subordinates and silences women, and that, given certain liberal principles, women have rights against it. She explores the traditional Kantian idea that there is something wrong with treating a person as a thing, and highlights an additional epistemological dimension to objectification: it is through a kind of self-fulfilling projection of beliefs about women as subordinate that women are treated as things. These controversial essays . . . will make stimulating reading for anyone interested in feminism's dialogue with moral and political philosophy." In working through these essays I found myself wondering whether feminism and feminists are our advanced troops in a war we humans have already lost. We are increasingly finding ourselves living in a world where we each treat others as commodities, and are treated as commodities in return. We are all for sale at just about any price. The objectification of the others is hard to contain, especially as the class of others expands. It is even difficult, and may become impossible, to continue to view our own selves as something other than mere objects. We are constantly projecting images of self, projecting images of who we want the world to think of us as, projecting images of our identity, etc., out into the world. Yet, increasingly these projections have little substance or content. It may be hard, as it is with soft drinks, cars, clothing, or other consumer goods, to think of ourselves, both individually and collectively, as anything other than just another brand or brands. Kant would not think of people as brands; but, unfortunately, we are a long way from being Kantians.).

AEROTROPOLIS

John D. Kasarda, & Greg Lindsay, Aerotropolis: The Way We'llLive Next (New York: Farrar, Straus & Giroux, 2011) ("[R]ather than banish airports to the edge of town and then do our best to avoid them, we will build this century's cities around them. Why? Because people once chose to live in cities for the wealth of connections they offered socially, financially, intellectually, and so forth. But in the era of globalization, we choose cities drawing closer together themselves, linked by fiber-optic cables and jet aircraft." Id. at 5. "The aerotropolis represents the logic of globalization made flesh in the form of cities. Whether we consider it to be good or simply inevitable, the global village holds these truths to be self-evident: that customers on the far side of the world may matter more than those next door; that costs must be continually be wrung from every piece of business in a market-share war of all against all; that the pace of business, and of life, will always move faster and cover more ground; and that we must pledge our allegiance if we want our iPhones, Amazon orders, fatty tuna, Lipitor, and Valentine's Day roses at our door tomorrow morning. If the airport is the mechanism making all of these things possible, . . . then everything else--our factories, office, homes, schools--will be built accordingly. The aerotropolis . . . will be a new kind of city, one native to our era of instant gratification--call it the Instant Age." Id. at 6. :-(( ).

SOMETIMES WORDS GET IN THE WAY

Art Spiegelman, Art, ed., Lynd Ward, Volume I: Gods’ Man; Madman’s Drum, Wild Pilgrimage (New York: Library of America, 2010).

Art Spiegelman, Art, ed., Lynd Ward, Volume II: Prelude to a Million Years, Song Without Words, Vertigo (New York: Library of America, 2010).

"WHO IS MASTER AND WHO IS SLAVE?"

James Gleick, The Information: A History, A Theory, A Flood (New York: Pantheon Books, 2011) ("Most of the biosphere cannot see the infosphere; it is invisible, a parallel universe humming with ghostly inhabitants. But they are not ghosts to us -- not anymore. We humans, alone among the earth's organic creatures, live in both worlds at once. It is as though, having long coexisted with the unseen, we have begun to develop the needed extrasensory perception. We are aware of the many species of information. We name their types sardonically, as though to reassure ourselves that we understand: urban myths and zombie lies. We keep them alive in air-conditioned server farms. But we cannot own them. When a jingle lingers in our ears, or a fad turns fashion upside down, or a hoax dominates the global chatter for months and vanishes as swiftly as it came, who is master and who is slave?" Id. at 323. "When new information technologies alter the existing landscape, they bring disruption: new channels and new dams rerouting the flow of irrigation and transport. The balance between creators and consumers is upset: writers and readers, speakers and listeners. Market forces are confused; information can seem too cheap and too expensive at the same time. The old ways of organizing knowledge no longer work. Who will search; who will filter? The disruption breeds hope mixed with fear. In the first days of radio Bertolt Brecht, hopeful, fearful, and quite obsessed, expressed this feeling aphoristically: 'A man who has something to say and finds no listeners is bad off. Even worse off are listeners who can't find anyone with something to say to them.' The calculus always changes. Ask bloggers and tweeters: Which is worse, too many mouths or too many ears?" Id. at 411-412. Food for thought? By the way, if you want to get a sense of just how time has compacted, read James Gleick, What Just Happened: A Chronicle From the Information Frontier(New York: Pantheon, 2002). Many of the events he described took place less than a dozen years ago. In other word, less than a generation ago. Yet, those events (and related concerns) seem like ancient history. Technology has gotten better, more efficient, smaller, even less expensive, though most of us have three or four times as many gadgets than we did way back then. Yet, improvement in technology does not equate to improvement in the quality of our lives. On that score, things have gotten a lot worse since the we have entered the twenty-first century. Yikes!).

ABOUT TO START GRADING MY COMMERCIAL LAW EXAMS

Mark Strand, Blizzard of One: Poems (New York: Knopf, 1998, 2000) (From "I Will Love the Twenty-First Century": ". . . Then a man turned / And said to me: 'Although I love the past, the dark of it, / The weight of it teaching us nothing, the loss of it, the all / Of it asking for nothing, I will love the twenty-first century more, / For in it I see someone in bathrobe and slippers, brown-eyed and poor, / Walking through snow without leaving so much as a footprint behind.' / 'Oh,' I said, putting my hat on, 'Oh.' " Id. at 6.).

YES, I AM STILL PROCRASTINATING . . .

Mark Strand, Dark Harbor: A Poem (New York: Knopf, 1993) ("When we look at each other and see nothing / Is that not a confirmation that we are less / Than meets the eye . . . " Id. at 27.).

BOOK OF THE WEEK: WEEK NINETEEN, 2011

Janet Malcolm, Iphigenia in Forest Hills: Anatomy of a Murder Trial (New Haven & London: Yale U. Press, 2011) ("If any profession (apart from the novelist's) is in the business of making things up, it is the profession of the trial lawyer. The 'evidence' in trial is the thread out of which lawyers spin their tales of guilt or innocence. With his examination of Borukhova, Scaring was offering an alternative to the story that Leventhal had told in his opening and then retold through the testimony of his witnesses. He would take the same evidence that, in Leventhal's tale. demonstrated Borukhova's guilt, and use it to demonstrate her innocence." Id. at 11. "The mistake was understandable: on a very hard-to-hear tape the word could easily be misheard. But that mishearing so favored the prosecution, that it so well advanced the narrative of an unsavory association, suggests that this was a mishearing by design--unconscious, perhaps, but design nonetheless. We go through life mishearing and mis-seeing and misunderstanding so that the stories we tell ourselves will add up. Trial lawyers push this human tendency to a higher level. They are playing for higher stakes than we are playing for when we tinker with actuality in order to transform the tale told by an idiot into an orderly, self-serving narrative." Id. at 13-15.).

STILL PROCRASTINATING ABOUT GRADING THOSE COMMERCIAL LAW EXAMS

Mark Strand, Chicken, Shadow, Moon and More (New York: The Turtle Point Press, 2000) (From the poem "Shadow": "Even the brightest poem is haunted by shadows / The shadow of the mother, the shadow of the father / Shadows are robes the sun keeps dropping / Come back, lost shadows, syllables of midnight / To plead for a shadow is to plead for mercy . . ." Id. at 15.).

WHAT TO READ SO AS TO AVOID GRADING COMMERCIAL LAW EXAMS

Charles Wright, Black Zodiac: Poems (New York: Farrar, Straus & Giroux, 1997)(From the title poem: "The unexamined life's no different from the examined life--/ Unanswerable questions, small talk, / Unprovable theorems, long-abandoned arguments-- / You've got to write it all down. / Landscape or waterscape, light-length on evergreen, dark sidebar / Of evening, / you've got to write it down." Id. at 65.).

WHAT TO READ WHILE ONE'S COMMERCIAL STUDENTS TAKEN THEIR FINAL EXAMINATION

Christopher Benfey, ed., Stephen Crane: Complete Poems (American Poets Project) (New York: Library of America, 2011).

There was a man who lived a life of fire.

Even upon the fabric of time,

Where purple becomes orange

And orange purple,

This life glowed,

A dire red stain, indelible;

Yet when he was dead,

He saw that he had not lived.

Id. at 65.

CHINESE FORTUNE COOKIE

'Don't be afraid of opposition; remember, a kite rises against the wind.'

IS THE VALUE OF THE RULE OF LAW IN JEOPARDY IN EARLY TWENTIETH-CENTURY AMERICA?

Francis A. Allen, The Habits of Legality: Criminal Justice and the Rule of Law (New York & Oxford: Oxford U. Press, 1996) ("The purpose of this book is to contribute to a holistic view of criminal justice as it exists in late twentieth-century America, by measuring its institutional performance against the requirements of the rule-of-law concept. . . The values are not new. They were given expression near the beginning of the modern era in the seventeenth and eighteenth centuries; the legality principle, itself, is one of the most notable products of the liberal revolution of that time. . . ." Id. at vii. "For many modern Americans the legality ideal has largely lost its status as an icon. The concept, on the contrary, is met with a spectrum of attitudes ranging from tentative support to insouciance, skepticism, and even hostility. A measure of skepticism is surely comprehensible. Any citizen awake to the political life of contemporary American society will see, in the language of Aristotle, much of 'desire' and 'appetite' and long for more intelligence' and 'reason' in the administration of justice, even at the highest levels. The extremes of disillusionment and hostility are another matter, however, and contribute quite different ingredients to the present environment of legality. As we track the rule of law into the morass of actual institutional behavior, we may rarely expect to find expressions of the legality principle in pristine and unqualified forms. Rather, the situation is one in which history, tradition, institutional structure, expediency, and sometime massive unconcern exert powerful negative pressures on the habits if legality. A certain moral and intellectual toughness is required to attempt invigoration of legal in institutional contexts that doom all efforts of reform to, at best, partial and measured success. . . ." Id. at 7-8. "Declarations of war are portentous acts, not to be taken lightly, which is true whether the enemies contemplated are external or internal, whether force is to be launched against foreign nations or members of one's own society. A war on crime or a war on drugs [or as war on terror?] is a war on people. There can be no war without enemies, and defining adversaries as enemies may produce attitudes and measures that are difficult, if not sometimes, impossible, to contain. For the large part of a generation, we have found it easier to mount moral outrage over the spectacle of offenders escaping just deserts than over persons suffering excessive and unjust punishment by the state, although both phenomena have been in abundant evidence. Such attitudes--we may call them the war psychology--are not confined to the United States A number of industrial nations . . facing seemingly uncontrollable escalations of crime and terrorism have adapted their legal institutions to conform more closely to what Sir Leon Radzinowicz has descried as authoritarian models of criminal justice. These are systems emphasizing a more unrestrained exercise of the public force, enhanced discretion of official agents, and increasingly insensitivity to the rights and immunities of persons caught up in the criminal process. The movement has, in short, been one toward the weakening of the legality principle and the accompanying institutional habits of legality." Over two centuries ago Voltaire warned that 'where charity is wanting, law is always cruel.' Charity has not been the salient characteristic of American penal policy during the last generation. . . ." Id. at 37-38. "It cannot be expected that the importance of the search for a more lawful law will always be widely understood or appreciated within the community. This is not because the American public is indifferent to the claims of legality. On the contrary, from the beginning of our national identity, the ideal of a government of laws has exerted potent influences on the theory of our political institutions and has contributed much that is most attractive to our public life. There seems no reason to doubt that threats to the rule of law, when widely perceived and understood, will continue to evoke public concern and response, In the welter of a complex and contentious society, however, legality issues may be obscured or overridden by apparently more pressing concerns, Public attention will ordinarily and understandably be engaged by such purposes as diminishing the threat of private violence, enlarging the availability of medical care, or achieving economic security for an uncertain future. The community's interests in public measures clearly directed to improving the conditions of life will ordinarily be strong, but understanding of and concerns about the means by which the law can best achieve its social purpose must be supplied initially and in larger part by legally trained persons. In the generation just past, lawyers on the whole, have not made strengthening the legality ideal in American society an objective of central concern; not have they adequately communicated to the larger community the importance of such revitalization. The dangers of neglect, however, are becoming increasingly evident. The present realities provide a basis for hop that American lawyers, both those in practice and in the academy, may be moved to encompass reinvigoration of the habits of legality within the urgent obligations of professional responsibility." Id. at 98-99 (italics added). I would not hold out much hope for lawyers, be they in practice or in the academy,acting to safeguard or enhance the habit of legality. Lawyers are the product of law schools, and law schools in the early twenty-first century are in the process of devolving from profession schools to mere trade schools. Except in the elite school, and perhaps not even there, there will be little substantive discussion of basic principles such as the rule of law because knowing, valuing and respecting the rule of law will neither get students jobs nor improve the ranking of laws schools on those fraudulent ranking systems. Few law schools strive to train lawyer-philosophers, lawyer-statesmen and stateswomen, lawyer-intellectuals. Rather, most law schools limit themselves to producing lawyer-mercenaries (i.e. lawyers as hired guns) and lawyer-businesspeople. As to the latter, it is not that I am against business people. Commerce is good for society. But business people tend to limit value to dollars and cents, profits and loss. And, the most important values in a society, or at least in any society worth being a member, are about things for which monetary value cannot be placed.).

AN ANTICIPATION OF NEOPOPULIST FORCE THAT IS THE TEA PARTY?

Lord David James George Hennessy Windlesham, Politics, Punishment, and Populism (Studies in Crime and Public Policy) (New York & Oxford: Oxford U.Press, 1998) ("For the politician in a representative democracy, populism is a slippery concept. The aspirant to public office knows that electoral success is a prerequisite for the exercise of influence and power and that in order t gain more votes than rival candidates it is imperative to ascertain the opinions of the voters, and then to satisfy them. Elected politicians everywhere are keenly aware of the need to keep their ears close to the ground. The skill lies in interpreting the signals that are picked up, some loud but irregular, others fainter but more consistent, and the uses to which they are to then put. Once elected to the representative assembly, the successful political candidate becomes a legislator, a more dignified status, with a voice and a vote in reaching decisions on policies and making laws. It takes some newly elected representatives longer than other to realize that the function of any legislative assembly worth the name is not simply to transmit undiluted the outpourings of raw public opinion but, in the felicitous language of James Madison, 'to refine and enlarge the public view, by passing them through the medium of a chosen body of citizens, . . . .' " "In the closing years of the twentieth century, neopopulist forces have been in the ascendant in American politics, whether at the national, state, or local level. The panorama is vast, but the outlines are familiar. In the foreground is a large black cloud of discontent, shutting off the sum from the nourishing sense of well-being that it might be expected would be enjoyed by the citizenry of the most economically prosperous nation on earth, and one with a long, if not altogether untarnished, tradition of individual freedom. As it has developed in modern times, neopopulism has taken on many negative characteristics. There is a consciousness of remoteness and resentment at being powerless and detached from the decision-making process. Frustration and resentment lead to suspicion of those closer to the seats of power, especially anonymous nonelected officials or experts, and an attraction toward simplistic solutions to complex problems. In the early stages attitudes may not have hardened into opinions on particular issues. But the soil is fertile, and slender shoots, cultivated by rhetoric, can grow rapidly and branch out into unexpected directions." Id. at 3-4. Neopopulism, with it dark traits of detachment, resentment, consciousness of remoteness, suspicion--if not outright paranoia--, and simplistic thinking, is running wild in early twenty-first-century America. "The powerful imagery of the incorrigible criminal committing further violent offenses soon after being released into the community, having served only a fraction of the sentence imposed for his previous crimes, inspired the Armed Career Criminal Act of 1984. If a person was caught in possession of a firearm and had three prior convictions for robbery or burglary or both, the minimum sentence would be enhanced form ten years to not less than fifteen years' imprisonment up to a maximum of life without eligibility for parole The qualifying offenses were widened by the next Congress to include any violent felony or serious drug offense, Although the legislation may have fulfilled for a time its political purpose of reassuring the public that Congress wanted to see violent offenders incarcerated until they were no longer dangerous, unforeseen difficulties soon emerged. The definition of what constituted the qualifying prior conviction and the grounds for challenging them in court were not settled until cases decided by the Supreme Court several years later." "Once in operation, the Armed Career Criminal Act was open to criticism as being overinclusive, creating unwarranted prosecutorial discretion, and failing to target actual career criminal since multiple offenses committed in a single day might establish a 'career' for the purposes of the statute. Oveinclusiveness was seen in the lack of any requirement of recency in prior conviction; the separate counting of related cases; the range of comparatively minor crimed included as predicate offenses; and the absence of serious misconduct to trigger the statute's application. These flaws were a good example of the consequence of adopting stratagems with insufficient regard to their policy implications in order to achieve popularly accepted aims." Id. at 25-26.).