July 31, 2011


David Foster Wallace, The Pale King: An Unfinished Novel (New York: Little, Brown, 2011) (Carefully read Tom McCarthy, "David Foster Wallace: The Last Audit," NYT Book Review, Sunday, 4/17/2001. Michiko Kakutani, "Maximized Revenue, Minimized Existence, NYT, Friday, 4/1/2011, captures the novel's essence (or, at least one of its essences): "[A]n America so plagued by tedium, monotony and meaningless bureaucratic rules and regulations that its citizens are in danger of dying of boredom." I do so relate.).

July 30, 2011


Vasily Grossman, Everything Flows, translated from the Russian but Robert Chandler, Elizabeth Chandler & Anna Aslanyan, and with an introduction by Robert Chandler (New York: New York Review Books, 2009) ("'Yes, yes, yes, at this time of total triumph of inhumanity it has become clear that everything created by violence is senseless and useless. It exists without a future; it will leave no trace.' 'This is my faith, and with it I returned to my cell. And Aleksey Samoilovich said, as he often did, 'Why try to defend freedom? Long ago it was indeed seen as the law of progress, the meaning of progress. Now, however, it's entirely clear that there is no such thing as historical evolution. History is simply a molecular process. Man is always equal to himself, and there is nothing that can be done with him. There is no evolution. There is one very simple law, the law of the conservation of violence. It's a simple as the law of the conservation of energy. Violence is eternal, no matter what is done to destroy it. It does not disappear or diminish; it can only change shape. It can be embodied in slavery, or in the Mongol invasion. It wanders from continent to continent. Sometimes it takes the form of class struggle, sometimes of race struggle. From the sphere of the material it slips into religiosity, as in the Middle Ages. Sometimes it is directed against colored people, sometimes against writers and artist, but, all in all, the total quantity of violence on earth remains constant. Thinkers mistake its constant chaotic transformations for evolution and search for its laws. But chaos knows no laws, no evolution, no meaning, and no aim. . . ." Id. at 202-203. From the backcover: "The main story is simple: released after thirty years in the Soviet camps, Ivan Grigoyevich must struggle to find a place for himself in an unfamiliar world. . . .").

Vasily Grossman, Life and Fate, translated from the Russian and with an introduction by Robert Chandler (New York: New York Review Books, 2006) ("Before slaughtering infected cattle, various preparatory measures have to be carried out: pits and trenches must be dug; the cattle must be transported to where they are to be slaughtered; instructions must be issued to qualified workers." "If the local population helps the authorities to convey the infected cattle to the slaughtering points and to catch beasts that have run away, they do this not out of hatred of cows and calves, but out of an instinct for self-preservation." "Similarly, when people are to be slaughtered en masse, the local population is not immediately gripped by a bloodthirsty hatred of the old men, women and children who are to be destroyed. It is necessary to prepare the population by means of special campaign. And in this case it is not enough to rely merely on the instinct for self-preservation; it is necessary to stir up feelings or real hatred and revulsion." It was in such an atmosphere that the Germans carried out the extermination of the Ukrainian and Byelorussian Jews. And at an earlier date, in the same region, Stalin himself had mobilized the fury of the masses, whipping it up to the point of frenzy during the campaigns to liquidate the kulaks as a class and during the extermination of Trotskyist-Bukharinite degenerates and saboteurs." "Experience showed that such campaigns make the majority of the population obey every order of the authorities as though hypnotized. There is a particular minority which actively helps to create the atmosphere of these campaigns: ideological fanatics; people who take a bloodthirsty delight in the misfortunes of others; and people who want to settle personal scores, to steal a man's belongings or take over his flat or job. Most people, however, are horrified at mass murder, but they hide this not only from their families, but even from themselves. These are the people who filled the meeting-halls during the campaigns of destruction; however vast these halls or frequent these meetings, very few of them ever disturbed the quiet unanimity of the voting. Still fewer, of course, rather than turning away from the beseeching gaze of a dog suspected of rabies, dared to take the dog in and allow it to live in their houses. Nevertheless, this did happen." The first half of the twentieth century may be seen as a time of great scientific discoveries, revolutions, immense social transformations and two World Wars. It will go down in history, however, as the time when--in accordance with philosophies or race and society--whole sections of the Jewish population were exterminated. Understandably, the present day remains discreetly silent about this." Id. at at 213-214.).

Howard Norman, What Is Left the Daughter: A Novel (Boston & New York: Houghton Mifflin Harcourt, 2010).

Ann Patchett, State of Wonder: A Novel (New York: Harper, 2011).

Tess Slesinger, The Unpossessed, with an introduction by Elizabeth Hardwick (New York: New York Review Books, 2002) ("A world where friends did not trust friends (but it was a sinking ship, the ship that the intellectuals were afloat in, and perhaps it must be a case of each man for himself?) The terrible compromises, the endless postponements. . . . It struck him with full force for the first time that all their arguments were loaded; they were engaged in continually proving to themselves that activity was futile. And the evening, the constant meetings . . . were they not all of them rationalization, an elaborate plan on his part and his friends' . . . for postponement of some stand? For clearly if they felt a common cause (like the Sheep who knew what it was to go hungry) they would sink their differences and act in common. He saw them suddenly, coming together less from their belief in revolution . . . than from some terrible inner need in each of them to lay out his own personal conflicts in terms of something higher, to solve his private ends camouflaged as world-problem, secretively in public. . . ." Id. at 188.)

Jean Toomer, Cane: Authoritative Text, Context and Criticism, 2d. ed. (A Norton Critical Edition), edited by Rudolph P. Byrd & Henry Louis Gates, Jr. (New York: Norton, 2011).

July 24, 2011


David K. Shipler, The Rights of the People: How Our Search For Safety Invades Our Liberties (New York: Knopf, 2011) ("When the Bill of Rights is violated, it's usually hard to mobilize public concern, because the most obvious victims are the least admirable--accused criminals whose cases become the means through which courts regulate police behavior by applying the Constitution. And the resulting constitutional interpretations apply to everyone. The system, then, binds together the miscreants and the righteous: The most virtuous among us depend on the most villainous to carry the torch of liberty, for when the courts allow a criminal defendant's rights to be violated, the same rights are diminished for the rest of us. . . ." "Most citizens who are searched without giving voluntary consent don't go to court for the simple reason that they are entirely innocent. No evidence is found, and so--assuming the police are honest--no charge are brought against them. Yet they have been violated fundamentally. Unless they sue the police for damages, which is extremely rare and more rarely successful, their experiences add up to an invisible record across the United State s of countless unconstitutional searches." Id. at 66. It is not that hard to live with someone else's rights being violated. See Jonathan Mahler, "Alienable Rights," NYT Book Review, Sunday, 6/12/2011.).

July 18, 2011


Jack M. Balkin, Constitutional Redemption: Political Faith in An Unjust world (Cambridge, Massachusetts, & London, England: Harvard U. Press, 2011) ("This is a book about faith, narrative, and constitutional change. . . ." "I am interested in the question of what attitude members of the public must have toward the constitutional project in order for it to be legitimate, and the dangers inherent in that very attitude. I am interested in the stories that Americans tell each other about what their Constitution means and how they use these stories to justify their actions, both to themselves and to others. I am interested in how American continue their constitutional project with an ancient Constitution that is only sometimes just, often very unjust, and always in the process of changing." "In focusing on these issues, I am not calling for abandoning the familiar questions of American constitutional theory; rather, I hope to bring new ones to attention. I do not claim that there is nothing else to constitutional theory than what I offer here. I only claim that there is this too." Id. at 1. "The dangers of apology and idolatry lead [Sanford] Levinson--and should lead us as well--to a hermeneutics of suspicion in law, directed against the products of law, the claims of law, and the professional judgments of well-trained lawyers, schooled in the legal common sense of a particular historical period. The well-trained lawyer, devoted to the forms and practices of law, and professing a proud faith in both the Constitution and the rule of law, might nevertheless use the forms and devices, the rhetorics and mechanisms of law to perpetrate injustices great and small. The fact that lawyers are well trained does not prevent these injustices . Instead, the better trained the lawyers are,the more injustices occur through the forms and devices, rhetorics and mechanisms of law. These injustices are defended in the name of the Constitution and the rule of law, and those who dare speak against them are often accused of settling themselves against the Constitution and the rule of law, and, by definition, against civilization itself. Here again slavery is an apt example. The institution of slavery was supported and defended by the ablest legal minds of their time, who justified it as a sovereign right of states and as a sacred form of private property, and who drew upon their considerable talents to protect it, maintain it, and even expand it. If well-trained lawyers could have done this on behalf of so great an evil as slavery, what does this say about what equally well-trained lawyers might be doing today?" Id. at 85.).

David E. Bernstein, Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (Chicago & London: U. of Chicago Press, 2011) ("Scores of books and articles state or imply that there is no significant difference between the 'Lochner-era' commerce clause, due process cases, non-delegation cases, an so on. Rather, they purportedly were all different manifestations of the Court's reactionary 'laissez-faire' jurisprudence. Conflating these doctrines allowed legal scholars--and for that matter, Supreme Court justices--to elide debate over the meaning of the relevant constitutional provisions, and to reject out of hand the notion that the Old Court may have interpreted some of them correctly as a matter of text and history." "In short, supporters of the post-New Deal constitutional order--lawyers, historians, and political scientists--promoted the traditional Lochner story to shore up that order against residual or future opposition. Modern conservatives have adopted major elements of this story as well, so that they can use Lochner to attack modern due process decisions they abhor, like Roe v. Wade. When scholars distort history to serve an agreeable governing ideology or to rally opposition to existing precedents that they dislike, their work richly deserves correction." Id. at 128. Among the grave misfortunes of the current trend in law school education to make law students 'practice ready' is denigrate certain areas of legal scholarship and teaching, for example, legal history. No bar examine asks examinees their take on Lochner. It will be the rare hiring partner who asks prospective new associates their position on Lochner, its merits, it legacy, etc. Yet, as Bernstein demonstrates, Lochner has played an important role in shaping the arguments of both the progressive let and the conservative right. Perhaps, understanding legal history, both constitutional and nonconstitutional, matters to a more robust and meaningful notion of being practice ready. Perhaps the only hope is that law students will read broadly outside their limited, narrowly-focused, and practice-oriented law school courses.).

Robert W. Gordon & Morton J. Horwitz, eds., Law, Society, and History: Themes in the Legal Sociology and Legal History of Lawrence M. Friedman (Cambridge Studies in Law and Society) (Cambridge: Cambridge U. Press, 2011) (From the editors' Introduction: "This book is not a Festschrift in the usual sense of a collection of miscellaneous essays by colleagues and disciplines assembled to honor a great scholar. Rather it is a sustained examination and application of the scholar's ideas ad methods. Some of the writers directly assess and comment on Friedman's vast body of work. Some examine his conclusions to see how well they have stood up over time. Others supply concepts and insights derived from Friedman's work to the study of similar problems in different periods and societies. Still other s use Friedman's concepts and insights as a foil or contrast to their own approaches to studying law and society from theoretical perspectives very different from his." Id. at 1. After reading this collection, I have no choice but to commit to rereading what I have read of Friedman's work, and reading what I have not yet read.).

Kenneth N. Klee, Bankruptcy and the Supreme Court (Newark & San Francisco: American College of Bankruptcy/LexisNexis, 2008).

Douglas Laycock, Religious Liberty, Volume One: Overviews and History (Emory University Studies in Law and Religion) (Grand Rapids, Michigan, & Cambridge, United Kingdom: Eerdmans, 2010) (Douglas Laycock is a legal scholar whose work and humanity I greatly admire. Those who read just this one volume of his work, agreeing or disagreeing with him, will understand why he is worthy of deep respect. From "Reflections on Two Themes: Teaching Religious Liberty and Evolutionary Changes in Casebooks" (originally published 101 Harvard Law Review 1642 (1988): "Many teachers believe that law students will not take seriously any reading other than a case or perhaps a doctrinal summary of a case. Yet that is surely the faculty's fault. If we want students to take history seriously, we must take it seriously ourselves. If we say that history is relevant to an understanding of contemporary disputes, we must visibly bring it to bear on those disputes." "Most important, we must include it in the final examination. We can assign a whole library of interdisciplinary reading, but if the examination consists of hypothetical cases requiring issue spotting and doctrinal analysis, students have every reason to study only doctrine. The grading and examination system creates an incentive structure, and we can hardly complain if students respond to it. Students are right to believe that what is important is what is the exam. But the faculty can change what is on the exam." "Forced to choose within the extraordinary constrains imposed by the case method, most of us decide that doctrine and traditional legal analysis are the most important things to teach. We may talk a different game, but our assignment sheets and our exams reveal our choices. Within the constraints of the case methods, doctrine is the right choice. I would not want to be represented by a lawyer who knows no law, however broadly educated in the liberal arts or public policy analysis. If we teach only a little bit, we should teach the core skills and information of the profession. Yet we need not be satisfied with teaching only a little bit. If we break out of the constraints imposed by the case method, our students can surely read more and learn more." Id. at 470-480.).

Douglas Laycock, Religious Liberty, Volume Two: The Free Exercise Clause (Grand Rapids, Michigan, & Cambridge, United Kingdom: Eerdmans, 2011) (From "Preface to Volume 2": "[T]his is the first of two volumes devoted to [Laycock's] work on protecting the free exercise of religion. This volume is devoted to constitutional protection --to the protections that are found, or should be found, in the Free Exercise Clause of the First Amendment and in similar provisions in state constitutions. Volume 3, Religious Liberty Legislation [forthcoming], will be devoted to statutory protections for religious liberty, enacted by Congress or state legislatures in response to the narrowing or withdrawal of constitutional protection by judicial interpretation." Id. at xii.).

Deborah E., Lipstadt, The Eichmann Trial (Jewish Encounters) (New York: Nextbook / Schocken, 2011) ("The judgment began with a reaffirmation of what had been evident throughout the trial. The judges' perception of the trial was diametrically opposed to Hausner's and, by extension, Ben-Gurion's. A trial, they unequivocally declared, could not be a 'forum for clarification of questions of great import.' The questions of great import that they believed did not belong were precisely the matters that Hausner considered fundamental to his case: anti-Semitism, the role of other nations in facilitating the Final Solution, and the Allies' failure to assist the Jews. The court's responsibility, they insisted, was to focus on the defendant's actions and to 'entirely eliminate' anything foreign to this process. In what may be the most 'controversial' aspect of their ruling, they addressed the testimony of Holocaust survivors 'who poured out their hearts as they stood in the witness box.' Their testimony would be valuable for historians and researchers, but the judges regarded it 'as a by-product of the trial.' . . . " Id. at 140-141.).

Karl N. Llewellyn, The Bramble Bush: On Our Law and Its Study (1930)(New York: Oceana, 1960) (I think Karl Llewellyn would be appalled by the current state, and downward drift, of legal education. It is a drift toward the anti-intellectual, a drift which only the elite law schools --if even they-- have any real chance of avoiding. "But I should say here, as I shall say again, that whatever the nature of your prospective practice, it would be a misfortune for you, and for us, and foe the public whom you, supposedly, will later service, if you were to confine your training in this school to what I may describe as bread-and-butter course, to those which seem to you of most immediate practice importance, to those which you conceive adapted to butter your bread, or to give you bread to butter." Id. at 6-7. "I pause in exposition to exhort. What I am trying to write in fire on the wall is that the task before you is immense, is overwhelming, and that the official courses of the school are not enough to compass it. 'TEKEL: though are weighed in the balance, and found wanting.' To do the work is not: to do the classes. Rather must you immerse yourself for all your hours in the law. Eat law, talk law, think law, drink law, babble of law and judgments in your sleep. Pickle yourselves in law--it is your only hope. And to do this you need more than your classes and your case-books, and yourselves, T=You need your fellows. . . . In group work lies the deepening of thought In group work lies ideas, cross-lights; dispute, and practice in dispute; cooperative thinking and practice in consultation; spur for the weary, pleasure for the strong. A threefold cord is not quickly broken: in group-work lies salvation." Id. at 110. "It all depends on what you want of law, what law can offer you. That turns, in turn, on what you want of life." " There is a brand of lawyer for whom law is the making of a livelihood, a competence, a fortune. Law offers means to live, to get ahead. It is so viewed, Such men give their whole selves to it, in this aspect. Coin is their reward. Coin makes it possible to live. Coin is success, coin is prestige, and coin is power. Such lawyers, I take it, reflect rather adequately the standards of our civilization. They have perceived the mainspring of a money economy. Coin is, in this society, the measure of a man." "I have no quarrel to fight out with this way of life. No quarrel to fight out with it, even as a way of life. It is as satisfactory, doubtless, as any; it may be more so. Single-heartedness simplifies choices; choices are most uncomfortable business, And if the coin-chaser does achieve his goal at forty-five, he has achieved a happiness that few can rival. Happiness after all is a balance between desires and fulfillment. He whose desires have shrunk to meat and drink and income tax evasion, to bowing butlers and the bejewelling of his wife--he has his happiness if he can gain the coin. I would not say that 'more law' had brought him vision. But neither do I see that he desires vision, or could use it." Id. at 141-142.).

Karl N. Llewellyn, The Case Law System in America, translated from the German by Michael Ansaldi, edited and with an Introduction by Paul Gerwitz (Chicago & London: U. Chicago Press, 1989).

Karl N. Llewellyn, The Theory of Rules, edited and with an Introduction by Frederick Schauer (Chicago & London: U. of Chicago Press, 2011) (From the book jacket: "This book frames the development of Llewellyn's thinking and describes the difference between what rules literally prescribe and what is actually done, with the gap explained by a complex array of practices, conventions, professional skills, and idiosyncrasies, most of which are devoted to achieving a law's larger purpose rather than merely following the letter of a particular rule. Edited, annotated, and with an extensive analytic introduction by leading contemporary legal scholar Frederick Schauer, this rediscovered work contains materials not found elsewhere in Llewellyen's writings and will provide a valuable contribution to the existing literature on Legal Realism.").

Gerald N. Magliocca, The Tragedy of William Jennings Bryan: Constitutional law and the Politics of Backlash (New Haven & London: Yale U. Press, 2011) ("[T]here was a powerful backlash against the protest movements associated with the Populists and their goals of wealth redistribution, nationalization of industry, and racial cooperation in the South. William Jennings Bryan's unique constitutional contribution was not in what he did; it was what the fear of him and his followers caused others to do. . . . This fear spurred the political and legal establishment to fight back by increasing federal constitutional protect for property and contract rights, establishing Jim Crow to prevent an alliance between poor whites and African Americans in the South, and curbing civil liberties to ensure that Populist and labor activists could not rally support. There are many fine studies on the backlash phenomenon, but nobody has done an analysis of what may be the most significant constitutional backlash of all. This book takes up that challenge." Id. at 5. "The irony of the 1890s is that one of the most impressive grass-roots movements in American history created one of the most repressive regimes in American history. Voting rights were striped away from millions of people. Segregation was no the law of the land. Labor leader were threatened with prison if they went on strike. The only exception to this trend came during the Progressive Era, especially in the second decade of the twentieth century. What looking at that period reveals, however, is that William Jennings Bryan continued to cast a long constitutional shadow." Id. at 132.).

Serena Mayeri, Reasoning from Race: Feminism, Law, and the Civil Rights Revolution (Cambridge, Massachusetts, & London England, 2011) ("This book is a history of reasoning from race as a legal strategy pursued by feminists during the 1960s and 1970s. To understand the history of feminist legal advocacy is to recognize reasoning from race as a fluid, historically variable practice rather than as a fixed or foregone conclusion. The social meaning and legal content of reasoning from race varied widely over time. Political and economic context mattered tremendously, as did the audience to whom feminists presented their demand." Id. at 4. In the early 1970s, John Lennon penned the lyrics to the song, "Woman is the Nigger of the World." Reasoning from Race is an interesting and worthwhile read. Were I teaching my Feminist Legal Theory course, I would assign the text as supplemental or suggested reading. For law students, reading Reasoning from Race is no substitute for reading and thinking through the cited cases. This connects to what I view as a flaw in a certain type of writing about legal history: an over-emphasis on the case law, and on what lawyers and judges do. This is understandable given the case-law focus of most legal education, in which analogical reasoning is 98 percent of the first-year curriculum and 90 percent of the third- and fourth-year curriculum. The race to gender analogy is not surprising. If the bulk of civil rights litigation focused on race, would not one expect those concerned with gender to tap into that case law and those analogies? It was a foregone conclusion that the reasoning would be from race, it was the only analogy readily available. It is a bit misleading to suggest that feminists really and truly agonized over use of the race analogy except, of course, to note that it might not play well with racists. One of the many discussions left out of the book is how the civil rights movement has left so many African American behind. Who are the class of women being left behind by feminism? Who has reasoning from race failed? This is part of the larger question of who wins and who loses from the use of an analogy. Still, like I said, Reasoning from Race is an interesting and worthwhile read.).

Lior Jacob Strahilevitz, Information and Exclusion (New Haven & London: Yale U. Press, 2011) (basically, information as a significant transaction cost in the decision as to how to exclude; privacy theory and law impact what information is available and its cost, and therefore, impact choice of exclusion strategies.).

Kenji Yoshino, A Thousand Time More Fair: What Shakespeare's Plays Teach Us About Justice (New York: Ecco, 2011) (See Garry Wills, "Shakespeare Subpoenaed," NYT Book Review, Sunday, 4/17/2011. "The class on which this book is based is probably great fun, and the students may sharpen some lawyerly skills by debating things like the bloody glove at Simpson's trial. But if they want more understanding of Shakespeare, they should sneak off to the theater, where he belongs, and not to a law class. They should go to Belmont." Id.).

July 17, 2011


Shumeet Balujam The Silicon Jungle: A Novel of Deception, Power, and Internet Intrigue (Princeton & Oxford: Princeton U. Press, 2011) (From the Preface: "The Silicon Jungle examines what happens when the brilliance, immaturity, and unbridled enthusiasm of an intern, Stephen, is mixed with unfettered access to people's most private thoughts and actions. Stephen's blind idealism and overwhelming desire to impress render him oblivious to the severe consequences of his actions and make him an easy mark for those willing to exploit his naivete." Id. at xii. "One of the novels happens to be on a government watch list; they want to keep tabs on who's reading such 'radical' ideas. Wonder if she talked about the novels with her sister? Maybe. Maybe her sister talked to her boyfriend. Did it go further? Unlikely. It's even more unlikely that Antonio talked about it with his mom. Who would? But unlikely doesn't mean impossible. He might have discussed it with his mom who then talked to your mom who then talked about it with you in some passing comment. Unlikely--yes. Impossible--no." "If you have enough of these types of connections, eventually the probability that someone will talk to you about something they heard second, third, or fourth-hand approaches inevitability. You're connected." Don't talk to people much? No problem. Your connections, and everyone else's, aren't just to people, they 're to web sites, to products, to places. You don't need to talk to people, you just need to interact with something, anything, that Ubatoo tracks." "No man is an island. . . ." Id. at 210.).

July 16, 2011


"I am a professional student and will remain one; I will not change. My opportunity to change was offered to me and I turned it down; I am stuck, now, and, as I say, know but know not what." Philip K. Dick, The Transformation of Timothy Archer, reprinted in VALIS and Later Novels, edited by Jonathan Lethem (New York: Library of America, 2009) at 615, 786).

July 14, 2011


Sarah Burns, The Central Park Five: A Chronicle of a City Wilding (New York: Knopf, 2011) ("The media coverage was certainly not the only reason these teenagers were wrongly convicted. The police, the prosecutors, and the defense lawyers all played a role. But this was not a case of rogue detectives beating confessions out of suspects, or of the police and prosecutors conspiring to frame individuals they knew to be innocent. If that were so, we could blame it all on those bad seeds and move on. Instead, this case exposes the deeply ingrained racism that still exists in our society. It shows us who and what we fear, and how easy it is for us to believe the sensational stories we hear from the media, who often fail to apply the skepticism their profession demands when competition drives them to sell newspapers or attract more viewers." "The false narrative, disseminated by the police and the media, was swallowed whole by the public because it conformed to the assumptions and fears of the city and the country. Everyone bought the story. But the fact that so many continue to promote this narrative tells us that even though we live as some like to say, in a 'postracial' society, the racism that fueled the original rush to judgment persists, and that we have not evolved enough from the days when even the suggestion that a black man had raped a white woman could lead to a lynching." Id. at x-xi.).

July 12, 2011


Rebecca T. Alpert, Out of Left Field: Jews and Black Baseball (New York & Oxford: Oxford U. Press, 2011) ("The story of Jews in black baseball is more complicated than either the mythic story of Jackie Robinson or the tale of the avaricious Jewish middlemen might lead one to assume. This book shows how a small group of Jews of different class and national backgrounds negotiated the process of becoming American in the first half of the twentieth century through their involvement in the segregated world of black baseball. These various Jews had a profound influence on black baseball in the 1950s, brought about by the social change s that permitted Jackie Robinson to integrate the major leagues and that made Jewish and black organizations interested in forming an alliance to fight discrimination on the basis of 'race, creed, and color.' But that change came at a cost. These ways of being Jewish--supporting radical causes, participating in complex cooperative and competitive partnerships in a black business, trading on stereotypes, developing connections between white and black Jews--were all antithetical to the values of cold war liberalism that American Jews embraced in the 1950s. And while the change in postwar American succeeded in making Jews comfortable and radically diminishing anti-Semitism, it was soon obvious that these changes would mitigate, but not end, the black-white racial divide. The alliance between black and Jewish organizations that flourished at this time, and the myth of the special relationship between blacks and Jews, fell apart in the 1960s under the pressure of a reconfigured black politics that recognized that securing legal rights alone would not end discrimination." Id. at 5-6.).

July 10, 2011


Gordon Wood, ed., John Adams: Revolutionary Writings 1775-1783 (New York: Library of America, 2011) (From 'Thoughts on Government, Applicable to the Present State of the American Colonies': "Fear is the foundation of most governments; but is so sordid and brutal a passion, and renders men, in whose breasts it predominates, so stupid, and miserable, that Americans will not be likely to approve of any political institution which is founded on it." Id. at 50. "LAWS for liberal education of youth, especially of the lower class of people, are so extremely wise and useful, that to a humane and generous mind, no expence for this purpose would be thought extravagant." Id. at 55. Since twenty-first-century American society is abandoning liberal education (for example, the gutting of the liberal arts in universities and colleges), then, by negative implication, we may sense that our society is something less than wise, humane and generous of mind. From "From the Autobiography": "The Chief Magistrate of the Town of Ferrol, is The Corregidor. For the Province or Kingdom of Gallicia, there is as Souvereign Court of Justice, which has both civil and criminal Jurisdiction. In all criminal Cases it is without Appeal, but in some civil Cases an Appeal lies to the Council at Madrid. There is no time allowed in criminal Cases for an Application for pardon, for they execute forthwith. Hanging is the Capital Punishment. They burn sometimes but it is after death. There was lately a Sentence for Parricide. The Law required that the Criminal should be headed up in a hogshead with an Adder, a Toad, a Dog and a Cat and cast into the Sea. But I was much pleased to hear that Spanish humanity had suggested and Spanish Ingenuity invented a Device to avoid some part of the Cruelty and horror of this punishment. They had painted those Animals on the Cask and the dead body was put into it, without any living Animals to attend it to its watery Grave. The ancient Laws of the Visigoth are still in Use, and these, with the Institutes, Codes, Novelles &c. of Justinian, the Canon Law and the Ordinances of the King, constitute the Laws of the Kingdom of Gallicia." Id. at 677-678.).

July 5, 2011


John Ferling, Independence: The Struggle to Set America Free (New York: Bloomsbury Press, 2011) ("This is a book about the evolution of American independence and about the events and decisions that ultimately led Congress, with the backing of most colonists, to set America free of the British Empire. The book's subtitle contains the word 'struggle,' and in fact those who favored severing all ties with Great Britain faced a long, difficult battle before, at last, they succeeded in declaring independence. Eleven years elapsed between Britain's first attempt to tax the colonists and the Declaration of Independence. What we today call the War of Independence, or the Revolutionary War, had gone on for fifteen months before the Continental Congress declared independence. For more than a year the colonists fought, and died, not for American independence, but to be reunited with Great Britain on America's terms." Id. at ix-x. "This is not a history of the American Revolution. While it looks at the Anglo-America crisis from its inception down to the Declaration of Independence, the book largely examines the forty-month period between the Boston Tea Party, in December 1773, and Congress's vote for independence in July 1776. Its objective is to understand the major players on both sides, what drove them, the choices they faced, their successes and failures, and, above all, why the American Congress moved steadily--seemingly inexorably--toward a final break with Great Britain." Id. at xii.).

July 4, 2011


Harry V. Jaffa, Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates (Fiftieth Anniversary Edition) (Chicago & London: U. of Chicago Press, 2009) ("There is a view widespread today that the principle of a free society is, in itself, neutral with respect to the differences of opinion which may divide the citizens. According to this view, the processes of constitutional democracy exist for the purpose of allowing differing opinions to compete with each other, and public policy may stand upon the ground of any opinion, so long as these command the support of a constitutional majority. One cannot understand Lincoln's policy in the long course of his debates with Douglas from 1854 until 1860 without realizing that it constitutes a categorical denial of this view. Douglas's doctrine of popular sovereignty, unclear as it was on many points, was nonetheless clert in this: that it conceived of a virtually unrestrained right of local majorities to determine rights according to the interests of the majority. It involved a flat repudiation of the principle laid down by Jefferson's first inaugural address, 'that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression.' This Douglas's doctrine did directly, in making the rights of Negroes solely a matter for determination by positive law, but indirectly it had the same affect upon the rights of white men. It was Lincoln's insistence that this was the character of Douglas's doctrine, and that such a doctrine was both untrue and immoral, which constituted his central contention, both theoretical and practical, in his long exchanges with Douglas. Id. at 304-305. "The work of the Founding fathers was excellent and noble, but it was incomplete. Its incompleteness is no necessary reflection upon the Fathers themselves. In asserting their independence of the British they could not help appealing to passions of revenge and hatred; nor could they, in appealing ti the principles of equal rights, avoid setting in train passions which would resist both just and unjust restraints. The people must be taught, as Jefferson taught them, to assert their rights, The people had not yet learned to respect what they had asserted. The people had not yet learned to be submissive in the presence of their own dignity. That this is peculiarly difficult to learn is easy to see. Whoever sees the law as the product of his own will--whether it be a Louis XIV or the American people--is prone to think that all things are lawful. Yet however easy or inevitable the error, it is still an error. Whoever fulfills the law does not destroy the law. But that the people can destroy themselves, that they can be led by the Pied Piper of Caesarism to their own destruction, was Lincoln's profound conviction. For the people to have the respect to which their rights entitle them they must be made subject to a discipline in virtue of which they will demand only those things in the name of their own supreme authority that are reasonable; i.e., consistent with the implications of their own equal rights. There is only way in which this self-respect on the part of the people can, according to Lincoln, be achieved. The Lyceum speech is designed, as the whole idea of political salvation implies, to give force to the one practical proposal of the the Lyceum speech; namely, the proposal for a 'political religion.' . . . Because of the importance of its [i.e., Lincoln's Lyceum speech] anticipations, we reproduce the following with all its rhetorical flourishes: 'Let every American, ever lover of liberty, every well wisher to his posterity, swear by the blood of the Revolution, never to violate in the least particular, the laws of the country; and never to tolerate their violation by others. As the patriots of seventy-six did to the support of the Declaration of Independence, so to the support of the Constitution and Laws, let every American pledge his life, his property, and his sacred honor; --let every man remember that to violate the law, is to trample on the blood of his father, and to tear the charter of his own, and his children's liberty. Let reverence for the laws,be breathed by every American mother, to the lisping babe, that prattles on her lap--let it be taught in schools, in seminaries, and in colleges; let it be written in Primers, spelling books, and in Almanacs; --let it be preached from the pulpit, proclaimed in legislative halls, and enforced in courts of justice. And, in short, let it become the political religion of the nation; and let the old and the young, the rich and the poor, the grave and the gay, of all sexes and tongues, and colors and conditions, sacrifice unceasingly upon its alter." Id. at 225-227. "The Lincoln-Douglas debates are concerned, in the main, with one great practical and one great theoretical question. The practical question was resolved into the constitutional issue of whether federal authority may, and the political issue of whether it should, be employed to keep slavery out of the organized federal territories. The theoretical question was whether slavery was or was not inconsistent with the nature of republican government; that is whether it was or was not destructive of their own rights for any people to vote in favor of establishing slavery as one of their domestic institutions. . . . Lincoln had said that, in a government like ours, public sentiment could change the government, practically speaking, just so much. I was aware that I was a member of that comparatively small class, the university professoriate, that today is the decisive source of the ruling opinions in our country. [Note: Remember, Jaffa was writing more than fifty years ago, before the decline in quality and influence of American universities and the American university professoriate. Today, though the its over all quality is rather piss-poor, the influence once generated by universities and university professoriate is now generate by network political news, talk radio, and political blogs. How did this happen? Many members of the university professoriate abandoned the notion of objective truth for the notion of truth being relative.] Primary and secondary teachers, the mass media and elected officials are usually the retailers of ideas that come in the first place from universities, and in particular from graduate schools. Here is where the teachers of the teachers are taught. We have become the ultimate source of change in the regime, I might have rejoiced somewhat more than I did in the contemplation of this power had it seemed that its exercise had been salutary. But changes generated by this class have been in the direction of denying the existence of any objective standard whatever. This meant denying that the exercise of political power might be, and therefore that it ought to be, governed by any truths external to the will of the those who wielded power. In short, the traditional idea that political power is to be distinguished from political authority, by the light of the distinction between force and right, had come to be regarded within the academy as obsolete." Id. at 9-10. When values are deemed as merely relative, then few are inclined to see the need to defend their values in the market place of political ideas. Instead, those wishing to have their values more widely adopted see control of the power of governance as both the mechanism and the license for imposing their values on others. That is, and sadly, might makes right. This is very much in evidence late-twenty- and early-twenty-first century America. At all levels of American government controlling factions (of all political stripes) no longer engage in meaningful dialogues with those with whom they disagree. Rather they seek to bulldoze their agendas and values through while they can, only to have things substantially reversed when the opposition someday regains control. "The idea of the rule of law rejects the notion that any individual or any group has sufficient wisdom and virtue to be trusted with the decision of individual cases on their own merits, without regard to general rules established by and through the authority of the whole community. Yet the fact remains, as Lincoln insinuates, that, abstractly considered, the rule of law is inferior to discretionary rule, just because each case would be better decided if it could be decided on its own merits. And it is as important to recognize the abstract superiority of discretionary rules as it is to recognize its practical inferiority." " Why so? Because all law aims at abstract justice, with respect to which it is a means. This end, which is translegal, is a perception of the discretionary judgment of wise men; and the law must be informed by such judgment--or be believed to be so informed--if it is to command respect. Men will will submit to abuses tolerated by the law if they feel these abuses are tolerated rather than enjoined or abetted by the law. In the fifties Lincoln was again and again to refer to the proposition, 'all men are created equal,' as an 'abstract truth,' a truth which was the life principle of American law. The implications of this truth were only partially realized, even for white men, and largely denied as far as black men were concerned, Yet it supplied the direction, the meaning, of all good laws in this country, although the attempt at that time to achieve all that might and ought to ultimately to be demanded in its name would have been disastrous. A law is foolish which does not aim at abstract or intrinsic justice; and so is it foolish to attempt to achieve abstract justice as the sole good by succumbing to the fallacy to which the mind is prone, which regards direct consequences as if they were the only consequences. Those who believe anything sanctioned by law is right commit one great error; those who believe the law should sanction only what is right commit another, Either error might result in foolish laws; and, although a foolish law may be preferable to a wise dictator, a wise law is preferable to both." Id. at 195. "No one who knows anything of the explosive hatred involved in the clash of Americans of different origins, in consequence of the great tides of immigration before and after the Civil War, can doubt that they contained vast possibilities for caste and class oppressions, oppressions which might have been rivaled if they did not exceed those of the enslaved Negro. Indeed, the oppressions that did exist in the later nineteenth century, in the slums of the great cities, in the factories and in the mines, were bade enough. Yet they have proved in large measure transient, and it would be difficult to find any considerable group, unless it be the American Indian, whose position, having once been depressed in relation to others, has not been ameliorated. And no group since the Civil War has been so hopelessly degraded as was the Negro, slave and free., in the decades bore the Civil War. If this is true, it is so because, and only because, although class and caste oppression may have existed in fact, they have never since been defended, or defensible, as a matter of right, before the American people a a whole. That the nation as a whole has never been able to defend inequality as the South defended slavery may be traced, so far as any great political effects can be traced, to Lincoln's success in opposing Douglas as a leader of 'American political public opinion'." Id. at 361-362 "The ugly potentialities of a policy of lebensraum combined with racial supremacy should hardly need explanatory comment today. The accents of sarcasm in the foregoing extract can scarcely escape notice. Of the 'mongrels' to the south Douglas had spoken thus at Springfield, July 17, 1858: 'We are witnessing the result of giving civil and political right to inferior races in Mexico, Central America, In South America, and in the West India Islands. Those young men who went from here to Mexico to fight the battles of their country in the Mexican war, can tell you the fruits of negro equality with the white man. They will tell you that the result of that equality is social amalgamation, demoralization and degradation, below the capacity of self-government.' Douglas's white supremacy, American empire, would have been a very different polity from anything envisaged in the pristine purity of the republican ideal of the Founding Fathers. There would have been precious little 'popular sovereignty' for the natives for whom Douglas had such contempt. And there might be many American states today in which, as in the case of the French in Algeria, a privileged minority would be engulfed in the swirling tides of hatred of an unprivileged majority of a different complexion. The problem of racial adjustment in American today is of an order of magnitude that we could hardly exaggerate. And this problem, as every informed person knows, although dramatized by the struggle of the Negro, is not limited to the Negro. Indians, Mexicans, Orientals have all had a desperate struggle, varying in times, place, and intensity, to achieve the dignity which our fundamental law and principles hold out to all. Aspiration must, as Lincoln implied in his 'standard maxim' doctrine, always transcend fulfillment. Yet it is essential that that the possibility of fulfillment does not fall so far short of the aspiration as to make it not a source of hope but mockery. Douglas's formula for solving the slavery question, in which the nation was already hopelessly entangled, would have made the question infinitely more complicated. It is almost inconceivable that democratic processes could have survived such complications. And we can only shudder to think what the twentieth century would be like if the United States had entered it as first and foremost of totalitarian powers." Id. at 407-408. "The great Enlightenment of the eighteenth century, of which Jefferson was such an ornament, was famous for nothing more than for its cosmopolitanism. And the essence of this cosmopolitanism lay in the conviction that only when the rights of man are secured everywhere will they attain their maximum security anywhere. . . . " Id. at 326. Perhaps reading the Lincoln-Douglas debates should be a core Independence Day ritual. It is not from the British that we must now secure our freed, but from those among us who are more inclined to Douglas than to Lincoln.).

July 3, 2011


Gordon Wood, ed., John Adams: Revolutionary Writings 1755-1775 (New York: Library of America, 2011) (From "Notes for an Oration on Government": "Liberty, under every conceivable Form of Government is always in Danger. It is so even under a simple, or perfect Democracy, more so under a mixed Government, like the Republic of Rome, and still more so under a limited Monarchy. Ambition is one of the more ungovernable Passions of the human Heart. The Love of Power, is insatiable and uncontroulable. Even in the simple Democracies of ancient Greece, Jealous as they were of Power, even their Ostracism could not always preserve them from the grasping Desires and Designs, from the overbearing Popularity, of their great Men. Even Rome, in her wisest and more virtuous Period, form the Expulsion of her Kings to the Overthrow of the Commonwealth, was always in Danger from the Power of some and the Turbulence, Faction and Popularity of others. There is Danger form all Men. The only Maxim of a free Government, ought to be to trust no Man living, with Power to endanger the public Liberty." Id. at 215 (formatting omitted). From "From the Autobiography": "Looking about me in the Country, I found the practice of Law was grasped into the hands of Deputy Sheriffs, Pettyfoggers and even Constables, who filled all the Writts upon Bonds, promissory notes and Accounts, received the Fees established for Lawyers and stirred up many unnecessary Suits. I mentioned these Things to some of the Gentlemen in Boston, who disapproved and even resented them very highly, I asked them whether some measures might not be agreed upon at the Bar and sanctioned by the Court, which might remedy the Evil? They thought it not only practicable but highly expedient and proposed Meetings of the Bar to deliberate upon it. A meeting was called and a great Number of regulations proposed not only for confining the practice of Law to those who were educated to it and sworn to fidelity in it, but to introduce more regularity, Urbanity, Candour and Politeness as well as honor, Equity and Humanity, among the regular Professors. . . ." Id. at 625.).

July 2, 2011


David Goldfield, America Aflame: How the Civil War Created a Nation (New York: Bloomsbury Press, 2011) ("The men and women who celebrated the war believed they were worthy of it. This second generation of Americans and their offspring carried the legacy of the American Revolution. Northerners say the opportunity to extend and protect the Revolutionary legacy, to transform an experiment into a permanent, indivisible country. An Ohio recruit resolved, 'Our Fathers made this country, we, their children are to save it.' Southerners sought to duplicate the work of the rebels of '76 and found a new nation. Ivy Duggan, a Georgia recruit, read the Revolution as teaching 'us . . . to resist oppression, to declare and maintain independence, to govern ourselves as we think best'." Id. at 206 (citation omitted). From the book jacket: "In this spellbinding new history of the Civil War, David Goldfield crafts the first major reinterpretation of the conflict--its causes and costs--since James M. McPherson's Battle Cry of Freedom. Whereas past scholars have limned the war as a triumph of freedom, Goldfield sees it as America's greatest failure: a breakdown caused by the infusion of evangelical religion into the public sphere. AAs the Second Great Awakening surged through the nation, political questions became matters of good and evil--differences serious enugh to kill or die for.").

Brooks D. Simpson, Stephen W. Sears & Aaron Sheehan-Dean, eds., The Civil War: The First Year Told by Those Who Lived It (New York: Library of America, 2011).

Matthew Warshauer, Connecticut in the American Civil War: Slavery, Sacrifice, and Survival (Middleton, Connecticut: Wesleyan U. Press, 2011) ("Along with the rest of the North, Connecticut staunchly opposed slavery and rallied to not only halt the westward spread of the 'peculiar institution,' but to defeat the Southern rebellion that had shaken the Union to its core. When considering Connecticut's connection to slavery and the Civil War, many immediately think of the Amistad case, the state heroine Prudence Crandall, the underground railroad, John Brown, and Harriet Beecher Stowe. There are certainly important and well-known events and people, who, by today's standards, reveal the best in enlightened, antislavery thought. We conclude, therefore, that Connecticut was always generously disposed toward abolition, with its yearning for black freedom and civic equality. The result of such forward-looking racial attitudes resulted in the state's massive commitment to crushing the Southern rebellion." "The reality, however, is far from the constructed memory that flowed forth in the many years and decades after the Civil War. The simple truth is that i the ;land of steady habits,; one of the steadiest was a virulent racism. While New England was generally viewed as the national center of abolitionist thought, Connecticut stood apart. . . . It was not that abolition failed to have a foothold in Connecticut. Rather, support for abolition was not nearly as widespread as many today believe. Moreover, whatever the number of abolitionists, there were many more in the state who actively opposed the end of slavery and black equality. There existed within Connecticut a serious and formidable antagonism toward abolition and blacks. These attitudes can be seen throughout the antebellum period and well into the Civil War." Id. at 1-2. "The racism of nineteenth-century America precluded the idea of justice. Or, perhaps more correctly, many in the North viewed emancipation as enough justice. Going any further could be equated with promoting black social and political equality, something that few white Northerners condoned. In this sense, there existed a distinct difference between emancipation and abolition similar to what had been articulated at the time of Lincoln's Emancipation Proclamation. And though during the war, some Northerners may have developed a sort of amnesia regarding their prewar views of blacks, or even admitted the errors of these views, in the war's long aftermath, there existed no widespread desire to wrestle with such issues. The reality is that most white Northerners, including many residents of Connecticut, wanted to establish a firm separation between the races. We think of segregation as primarily a Southern phenomenon, one that developed in the latter half of the nineteenth century and was endorsed by the infamous 1896 Supreme Court decision in Plessy v. Ferguson, which legally sanctioned the idea of 'separate but equal.' Yet devotion to racial separation was also characteristic of Northerners and had developed much earlier." "The disintegration of abolitionist sentiment, the feeling that blacks had already received justice, the distaste for black political and social equality, and the desire for separation between the races -- all culminated in one momentous event that steered Connecticut's course into the postwar years. In the spring of 1865, the General Assembly passed an amendment to the state constitution removing the word 'white' in determining who could vote, and scheduled an October referendum on the subject. The change was overwhelmingly rejected by Connecticut voters. And it was Republican votes that secured the amendment's defeat. The state's residents may have ultimately supported emancipation, but they were not advocates of black civic equality -- they were not abolitionists. The vote was a resolute shift from thoughts of justice and equality to those of healing and reconciliation [with white Southerners]." Id. at 175.176.).

July 1, 2011


Gordon S. Wood, The Idea of America: Reflections on the Birth of the United States (New York: The Penguin Press, 2011) (From 'Chapter Six, The Making of American Democracy': "In our dealings with newly developing nations, we are apt to believe that the mere institution of the ballot in a new country will automatically create a viable democracy, and we are often confused and disillusioned when this rarely happens." "The point is that we have the relationship backward. It is not suffrage that gives life to our democracy; it is our democratic society that gives life to suffrage. American society is permeated by the belief in (and, despite extraordinary differences of income, in the reality of) equality that makes our reliance on the ballot operable. It was not the breadth of the franchise in the nineteenth century that created democratic politics. The franchise was broad enough even in colonial times. Rather, it was the egalitarian process of politics that led to the mobilization of voters and the political integration of the nation. It was the work of countless politicians recruited from all levels of society and representing many diverse interests, attempting to win elections by exhorting and pleading with their electors that in the final analysis shaped our democratic system. Any state can grant suffrage to its people overnight, but it cannot thereby guarantee to itself a democratic polity. As American history shows, such a democracy requires generations of experience with electoral politics. More important, it requires the emergence of political parties and egalitarian politicians none of whom have too much power and most of whom ought to run scared--politicians whose maneuvering for electoral advantage, whose courting of the electorate, and whose passion for victory result, in the end, in grander and more significant developments than they themselves can foresee or even imagine. Politicians are at the heart of our political system, and insofar as it is democratic, they have made it so." Id. at 189, 211-212. Food for thought.).