BENJAMIN FRANKLIN, pt. 1

Benjamin Franklin, Silence Dogood, The Busy-Body, and Early Writings: Boston and London, 1722-1726; Philadelphia, 1726-1757; London, 1757-1775, edited by J. A. Leo Lemay (New York: Library of America(1987, 2002)(From the book jacket: "Controversial in his own time, and the subject of vigorous debate ever since--to Matthew Arnold he exemplified 'victorious good sense,' while to D.H. Lawrence he was the 'first dummy American'--Franklin emerges in this collection a a figure of extraordinary complexity for readers to discover, consider, and appreciate anew.").

BOOK OF THE WEEK: WEEK THIRTY-FIVE, 2011

Edward J. Larson, An Empire of Ice: Scott, Shackleton, and The Heroic Age of Antarctic Science (New Haven & London: Yale U. Press, 2011) ("When I tell friends that I'm writing a book about the Heroic Age of Antarctic exploration, they typically respond in one of two ways. Some say how much they admire Ernest Shackleton's leadership style, while others question Robert Scott's tactics in trying to reach the South Pole first. Both responses are telling. A century after their exploits, these two men are still widely known for their personal achievements, but their fame rests largely on how they dealt with adversity in their efforts to reach the geographical South Pole. That, most people assume, is why they went to Antarctica; much else about their expedition is forgotten." "This book is neither a paean to Shackleton's leadership nor a critique of Scott's choices. It is about what was central to British efforts in the Antarctic. In the era before World War I, when Antarctic exploration was largely a British project, that project was largely concerned with science." Id. at ix.).

'DEMOCRACY CANNOT IN ITSELF ENSURE GOOD GOVERNMENT'

Janet Semple, Benthan's Prison: A Study of the Panopticon Penitentiary (New York & Oxford: Clarendon Press/Oxford U. Press, 1993) ("Bentham contemplated the legal profession in the 1770s with revulsion. In his view, the system was rotten to the very core; the interests of lawyers were in direct opposition to those of their clients and the general public. The greater the delay, obscurantism. and injustice perpetrated by the courts, the greater would be their remuneration; it was a conspiracy against the public weal; the structure of law sanctioned delays and denial of justice and covered its faults in a smug patina of mutual admiration. Given these feelings, it is hardly surprising that he could not bring himself to prostitute his talents in law practice. He gave advice on one brief, a suit in equity, to the effect 'that the suit had better be put an end to, and the money that would be wasted in the contest saved.' He preferred to pursue a life of study and writing, living on spasmodic earnings form journalism and an allowance form his father." Id. at 21. "By a strange irony, he who was so acutely aware of the delusive power of language, used words in such a way to create an impression of ossified, frigid, rule-bound bureaucracy. Words such as 'functionary', 'tribunal', 'dislocability', and 'melioration' do indeed evoke visions of totalitarianism. But this is a false impression. He did not stop thinking after the failure of his panopticon scheme. He went on to perfect his theory of institutions and in it there is no concept of the state as an entity separate or greater than the individuals who serve it. For almost twenty years he reflected and wrote on government, working out the ideas that reach their apogee in the Constitutional Code. . . . He took and transmuted the two fundamental principles of the panopticon, the junction of duty and interest and inspection and applied them to government. What emerged was a tough, realistic theory of democracy. Underlying it was his harsh belief that the interests of rulers are always and always will be in diametrical opposition to the interests of subjects. Whatever the rhetoric or ideology of these rulers, whether a paternal monarch, freedom fighters, or intellectuals, they will inevitably sacrifice the interests of their subjects. Whether they rule in the name of Marx, Allah, Christ, or the Market, they are men and will accumulate money and privileges for themselves They will, as night follows day, plunder and oppress their people. Bentham did not deny the possibility of the odd altruistic action, but he argued that it would be imprudent to found a system of administration on such an unlikely contingency. . . . Ruling elites would automatically close ranks to protect their own, to cover up mistakes, to spend money on schemes to their own benefit, to protect and extend their powers and privileges. Such corruption pervades all government and becomes so instinctive that it no longer seems corrupt. . . . " "Bentham came to believe that the only form of government that could safeguard the people against the exploitation and oppression was representative democracy, because only therein were subjects able to control their rulers. It was the only form of government that would consistently aim at the greatest happiness of all, for the people were themselves sovereign. . . . But democracy cannot in itself ensure good government, for the people's representatives would soon succumb to the temptations of power unless they were closely watched. . . . Open accountable administration under the constant scrutiny of the public could solve the age-old dilemma, 'Quis custodiet ipsos custodes'." Id. at 317-318. Food for thought in early twenty-first-century America, where even the virtues and ideals of representative democracy seem under constant attack.).

WHAT IS JUSTICE?

Geoffrey Cupit, Justice as Fittingness (Oxford & New York: Clarendon Press/Oxford U. Press, 1996) ("To do injustices to people is to treat them as less or lower than they are; to treat them as lacking some status-enhancing attributes which they do not lack, or as people possessing some status-reducing attributes they do not possess. The fundamental idea of the account of justice I want to defend, then, is this: an unjust act is an unfitting act; it is an act which fails to accord with the status of the person treated." Id. at 2. "To act unjustly, then, is to act unfittingly, but to act unfittingly is not necessarily to act unjustly: there are actions which are unfitting but not unjust. We might say of those who show contempt for judges in courts of law--perhaps by refusing to stand up, shouting obscenities and so on--that they treat judges unfittingly, as less than they are, but decline to describe such actions as unjust. We might speak, in such cases, of disrespect. Not all unfitting actions are unjust: unfittingness is the genus, and injustice the species within the genus. Justice is a member of a family of concepts. This raises the question of which unfitting acts are unjust. How do unjust acts differ from other types of unfitting act? . . ." Id. at 2-3. "Who or what is able to be treated justly and unjustly? To whom is justice owed? . . . The question of whether it is appropriate to refer to the unfitting treatment of animals, especially the higher animals, as unjust is more disputed. If we take the view that such treatment is not unjust, what distinction are we marking in our use of respect and contempt, and justice? What is it about a being which, we suppose, makes it able to be treated unjustly, as against merely without due respect?" "The distinction we will be drawing here, I want to suggest, is between a being which has the capacity to understand the treatment it receives as fitting or unfitting (or, perhaps, the potential to develop such a capacity), and one which does not. This capacity, in turn, seems to presuppose that the being treated is one which has, or has the potential to have, a conception of itself and its status, and some capacity to interpret what happens to it as constituting being treated as a being with some particular status. Justice and injustice (together with the capacity to be insulted)--unlike the receipt and denial of respect--we seem to restrict to beings we suppose to have the capacities (or potentiality to develop the capacities) for consciousness, including consciousness of status, and interpretation. If it is indeed these capacities which distinguish beings which we suppose are able to be done an injustice from those which are not, we must be willing to accept that if we came to believe that there are animals which possesses these capacities, it would be justice which they are owed. This seems plausible." Id. at 16-18. Nicely argued. Those familiarly with Martha Nussbaum's work on "capabilities," might find this an worthwhile read.).

CAN ONE BE BOTH A KANTIAN AND A CONSEQUENTIALIST?

David Cummiskey, Kantian Consequentialism (New York & Oxford: Oxford U. Press, 1996) ("The central problem for normative ethics is the conflict between two extremely reasonable beliefs: that we should do what is necessary to bring about the best possible consequences and that we should respect the rights of the individual. The apex and epitome of rights theory is Kantianism. Kantians and nonKantians alike assume that Kantianism, with it resonant insistence on the dignity of the individual, and consequentialism, with its plausible claim that we should do as much good as possible, are incompatible. In fact, however, Kant's theory and consequentialism are compatible. Indeed, Kantian moral theory, properly understood, generates an extremely compelling consequentialist normative theory. I call this theory 'Kantian consequentialism'." Id. at 3. "There is a significant degree of common ground between Kantian deontologists and Kantian consequentialists. Both agree that treating rational nature as an end-0f-itself suggests 'that one must seek to preserve, develop, exercise, and "honor" rational agency in oneself and to respect it in other human beings.' From this, after considerable argument, the consequentialist concludes that the basic normative principle is a requirement to maximally promote the conditions necessary for the flourishing of rational nature and happiness. Despite the absence of deontological constraints, one should not underestimate the difference between Kantian consequentialism and classical utilitarianism." Id. at 97-98.).

BOOK OF THE WEEK: WEEK THIRTY-FOUR, 2011

Eli Pariser, The Filter Bubble: What the Internet Is Hiding from You (New York: The Penguin Press, 2011) ("In a small town or an apartment building with paper-thin walls, what I know about you is roughly the same as what you know about me. That's a basis for a social contract, in which we deliberately ignore some of what we know. The new privacyless world does away with the contract. I can know a lot about you without your knowing I know. 'There's an implicit bargain in our behavior,' search expert John Battelle told me, 'that we haven't done the math on.' " "If Sir Francis Bacon is right that 'knowledge is power,' privacy proponent Viktor Mayer-Schonberger writes that what we're witnessing now is nothing less than a 'redistribution of information power from the powerless to the powerful.' It'd be one thing if we all knew everything about each other. It's another thing when centralized entities know a lot more about us than we know about each other--and sometimes, more than we know about ourselves. If knowledge is power, then asymmetries in knowledge are asymmetries in power." Id. at 146-147. Also see Evgeny Morozov, "Your Own Facts: Is the personalization of search-engine results a blessing or a curse?", NYT Book Review, Sunday, 6/12/2011.).

THERE IS NO SUCH THING AS SUMMER VACATION FOR INTELLECTUALLY CURIOUS LAW STUDENTS

Robert Alter, The Wisdom Books: Job, Proverbs, and Ecclesiastes: A Translation with Commentary (New York: Norton, 2010) ("Watch your step when you go to the house of God, for understanding is more favored than the offering of sacrifice by fools, for they do not know even how to do evil.").

Annette C. Baier, The Cautious Jealous Virtue: Hume on Justice (Cambridge, Massachusetts, & London, England, 2010) ("This books looks at Hume's famous account of justice in his Treatise, at its relation to other virtues, at changes to what he says about it and its fellow virtues in his Enquiry Concerning the Principles of Morals (EPM), and on to some of his remarks about justice n his Essays, and in his History of England. . . ." "Hume's account of what justice is, and how it relates to the rest of morality, has been much discussed. Morality for Hume is a matter of approbation for a set of character traits, rather than obedience to a set of action-guiding rules, but the virtues he calls artificial do consist in willingness to keep rules directing us how to act, so they form the deontological element in Hume's ethics. The rules we are to keep depend in the established customs in our own society, customs that enable us to trust each other in some important matters. Rules allocating property vary a lot from society to society, and they, along with promise-keeping, constitute the core of what Hume in the Treatise terms 'justice.' What counts as a binding promise varies less from society to society, but there are some variations, in matters such as the need for witnesses. I look at the differences between these two parts of what Hume first takes justice to comprise . . . , and find promise-keeping to be more natural than he allows." "My title is taken from Hume's characterization of justice in EPM, and some of my attention is given to the sense in which it is cautious n and jealous, It is cautious since it constrains our freedom to do as we please, and we are rightly cautious about accepting such restraints. It is jealous, since it decrees each person's due, and we are jealous of our due, resent being denied it and are apt to compare it with what others are getting. We resent unfairness and injustice, to ourselves and to others, and Hume regards the capacity for resentment as an innate one. . . . " Id. at vii-viii.).

Philipp Blom, A Wicked Company: The Forgotten Radicalism of the European Enlightenment (New York: Basic Books, 2010) (From the bookjacket: "From the 1750s to the 1770s, the paris salon of Baron Paul Thiry Holbach was an epicenter of debate, intellectual daring, and revolutionary ideas, uniting around one table vivid personalities such as Denis Diderot, Laurence Sterne, David Hume, Adam Smith, Horace Walpole, Benjamin Franklin, the impish Ferdinando Galiani, the radical ex-priest Guillaume Raynal, the Italian Count Beccaria, and Jean-Jacques Rousseau, who later turned against his friends." "It was a moment of astonishing radicalism in European thought, so uncompromising and bold that it was viciously opposed by rival philosophers such as Voltaire and the turncoat Rousseau, and finally suppressed by Robespierre and his Revolutionary henchmen. This climatic moment in Western history has largely been forgotten by historians who have looked no further than what the official version of events showed." ". . . Blom retraces the fortunes and characters of this exceptional group of friends and brings to life their startling ideas. Brilliant minds full of wit, courage, and humanity, their thinking created a different and radical French Enlightenment based on atheism, passion, empathy, and a compelling insightful perspective on society. A startling relevant work of narrative history, A Wicked Company forces us to confront with new eyes the foundational debates about modern society and its future.").

Roberto Bolano, Between Parentheses: Essays, Articles, and Speeches, 1998-2003, edited by Ignacio Echevarria, translated from the Spanish by Natasha Wimmer (New York: New Directions, 2011).

Paul Boghossian, Fear of Knowledge: Against Relativism and Constructivism (Oxford & New York: Clarendon Press/Oxford University Press, 2006) ("The core constructivist conviction that we have concerned with in this book is that knowledge is constructed by societies in ways that reflect their contingent social needs and interests. We have isolated three distinct ideas that this conviction might interestingly amount to and we have examined the case that can be made for them." On the negative side, there look to be severe objections to each and every version of a constructivism about knowledge that we have examined. A constructivism about truth is incoherent. A constructivism about justification is scarcely any better. And there seem to be decisive objections to the idea that we cannot explain belief through epistemic reason alone." "On the positive side, we failed to find any good arguments for the constructivist views. In the case of a relativism about justification, what appears initially to be a seductive argument fails to hold up under scrutiny." Id. at 129. "The intuitive view is that there is a way things are that is independent of human opinion, and that we are capable of arriving at belief about how things are that is objectively reasonable, binding on anyone capable of appreciating the relevant evidence regardless of their social or cultural perspective. Difficult as these notions may be, it is a mistake to think that recent philosophy has uncovered powerful reason for rejecting them." Id. at 130-131.).

Judith Butler, Bodies That Matter: On the Discursive Limits of "Sex" (LOndon & New York: Routledge, 1993, 2011).

A. C. Grayling, The Good Book: A Humanist Bible: Conceived Selected Redacted Arranged Worked And In Part Written by A. C. Graying (New York: Walker & Co., 2011) ( From "Epistle to the Reader": "All who read this book, therefore, if they read with care, may come to be more than they were before. This is not praise of the work itself, but of its attentive readers, for the worth to be found in it will come from their minds. If there is anyone who learns nothing from this book that will not be attributable to faults in it, but to that reader's excellence. If readers judge candidly, none among them can be harmed or offended by what it asks them to consider. Yet all who come hungry to these granaries of the harvest made by their fellows and forebears, will find nourishment here." Id. at (unnumbered). From "Genesis":"Dare to know: that is the motto of enlightenment." Id. at 2. From "Proverbs": "Chapter 22: Books 1. Something is learned every time a book is opened. 2. A book may be as great a thing as a battle. 3. Books are ships that traverse the seas of time. 4. Books cannot always please, however good; minds are not always craving for food. 5. Books give no wisdom where there was not wisdom before. 6. Rather a study full of books than a purse full of money. 8. The best companions are good books. 9. The books that help most are those that prompt most thought. 10. The virtue of books is to be readable. 11. There is no frigate like a book to take us to lands far away. 12. Wear the old coat and buy the new book. 13. The world may know me by my book, and my book by me. 14. Word by word the great books are written. 15. The reader's fancy makes the fate of books." Id. at 363. 'Chapter 96: Liars 1. Liars begin by deceiving others, and end by deceiving themselves. 2. Old folk and great travellers lies by licence; lawyers lie for pay. . . . Id. at 382-383.).

Russell Hardin, David Hume: Moral and Political Theorist (Oxford & New York: Oxford U. Press, 2007) ("Hume is a contributor to the theory of liberal distrust, which has essentially two parts defined by two different causal structures. The first is the problem of knaves who use office to benefit themselves in abusive ways. The second is the problem of parties that can gain control of government. There is apparently, in general, no simple coordination device to block such party action." "James Madison expanded the focus of liberal distrust to include not only a monarch but also to include an entire government. He wanted a weak national government primarily because such a government would not be able to intrude in the lives of individuals and would not have the power to impose, for example, a mercantilist economic policy. It could block local or state-level intrusions into the economy but could make none of its own. The constitution he helped design is well over two centuries old and, as weak as it might initially have been, the state that it founded has become extraordinarily powerful, and it regularly intrudes into the economy, especially to benefit particular groups--such as farmers, the paper industry, the steel industry . . . and so on. There are active groups that would like to gain control of the US government to impose a religious ideology. Such groups have gained some control over the Republican party. Coordinating against such politics depends on democratic mobilization of the citizenry and of certain agencies of government, It is not yet clear where there is a convention strong enough to force government to stay out of many personal activities and civil liberties." "This is not an issue that Hume addresses, largely because his view of the motivations of officials is quite sanguine. He speaks of 'the persons, whom we call civil magistrates, king and their ministers, our governors and rules, who being indifferent persons to the greater part of the state, have no interest or but a remote one, in any act of injustice; and being satisfy'd with their present condition, and with their part in society, have an immediate interest in every execution of justice, which is so necessary to the upholding to society'. It is stunningly naive for the empiricist Hume to believe that this describes the worlds in which we live. Hume's dual convention for the successful operation of government needs yet a third convention to block any large interest from gaining control of government and using it in their own interest. Hume's omission here is the single biggest flaw in his political theory." Id. at 101-102 (citations omitted).).

F. A. Hayek, The Collected Works of F. A. Hayek, Volume 13: Studies on the Abuse and Decline of Reason: Text and Documents, edited by Bruce Caldwell (Chicago & London: U. of Chicago Press, 2010) (From Chapter Eleven, 'The Source of the Scientific Hubris: L'Ecole Polytechnique': "Never will man penetrate deeper into error than when he is continuing on a road which had led him to great success.' Id. at 170, 170.).

Adina Hoffman & Peter Cole, Sacred Trash: The Lost and Found World of the Cairo Geniza (Jewish Encounters) (New York: Nextbook/Schocken, 2011) (See Anthony Julius, "A Pileup of Secrets," NYT Book Review, Sunday, 5/29/2011. ).

Julia Kristeva, Hatred and Forgiveness, translated from the French by Jeanine Herman (New York: Columbia U. Press, 2010) ("International news offers a dramatic example with which to touch on, if only briefly, the second problem: indeed there is not better illustration of the perverse exercise of the law than the tortures at Abu Ghraib Prison involving a few 'lost sheep' of the American contingent in Iraq. Specialists in international law, political scientists, and sociologists have already said everything about this abjection. As for me, I will say that the conscious application of legal procedure, through its laxity and negligence, allowed the transgressions, when they did not demand them: the military police of this prison never acquainted themselves with the Geneva Conventions; moreover, the brutalities against the prisoners were part of a sophisticated system taught to British and American intelligence specialists, meant to break down 'resistance to interrogations,' notably by including humiliation of a sexual nature. Question: what individual, 'instructed' this way, can refuse to take part in these perverse practices? However brutal, my question is meant to show a psychoanalyst's vigilance, because I am convinced that certain deviations of modern society, known as the 'society of the spectacle,' and the 'deculpabilization of transgression,' risk increasing the number of 'lost sheep'. I don not know what the results of the psychological examinations of the guilty parties at Abu Ghraib were, but to hear their reproaches these young people from Maryland or Pennsylvania, Lyndie England--from whom feminist parity did not request so much zeal--and her friend Charles Graner, do not seem so distinct from the average American, or even the average inhabitant of the global planet, the humanoid 'instructed' by television reality shows worldwide, and various sites on the Internet." Id. at 175.).

John Levi Martin, Social Structure (Princeton & Oxford: Princeton U. Press, 2009) ("New York's political elite was, from a relatively early date, predominantly composed of lawyers. But in Pennsylvania, elites were much less likely to be lawyers, and more likely to be merchants, doctors, and (increasingly) printers." "While printing is perhaps the ideological occupation par excellence, making a career in law generally required the support of a lawyer patron (the word might be explicitly used by an applicant), since in a world without law schools and with only sporadic examinations, the only way to become a lawyer was to clerk for one and get his endorsement. . . . It was frequently the case that aspiring Federalists had studied law with a more established Federalist (e.g., Hamilton's lieutenant Robert Troup studying with John Jay or Monroe with Jefferson. . . .). Thus the New York political system was in the hands of professionals who tended to be concentrated in a tiny portion of the state, and who lacked any organic relation to class or sectional interests, as did the Virginia planters, or to the fraternity of elite schools, as did the Massachusetts clergy, or to religion as did the Pennsylvania Quakers and Anglicans. They were primed to organize themselves in hierarchical factions as opposed to bocs of those sharing a common regional interest." Id. at 301 (citations omitted). From the book jacket: "Social Structure is a book that examines how structural forms spontaneously arise form social relationships. Offering major insights into the building blocks of social life, it identifies which locally emergent structures have the capacity to grown into larger ones and show how structural tendencies associated with smaller structures shape and constrain patterns of larger structures. The book them investigates the role of such structures have played in the emergence of the modern nation-state." "[John Levi Martin] finds that the relationships best suited to forming larger structures are those that thrive in conditions of inequality; that are incomplete and as sparse as possible, and thereby avoid the problem of completion in which interacting members are required ti establish too many relationships; and that abhor transitivity rather than assuming it. Social Structure argues that these 'patronage' relationships, which often serve as means of loose coordination in the absence of strong states, are nevertheless the scaffolding of the social structures most distinctive to the modern states, namely the command army and the political party.").

Perry Miller, The Life of the Mind in America: From the Revolution to the Civil War (New York: Harcourt, Brace & World, 1965) ("By this time, a curious combination had been formed in the religious mind, which almost defies analysis. Because the intellect and the 'speculative' had become equated with the nonspiritual, then the intellectual could be declared a threat to nationality, and so 'un-practible.' Whereas the union of spirituality, symbolized by the heart, with the perpetuation of American institutions was the peculiar discovery of American Christianity. And somewhere in the 1840's the magic word conservative emerged to connote this assemblage of ideas." Id. at 69. "The mass of people in rural or frontier regions cherished around 1800 an ingrained hostility to the law as a profession. Interestingly enough, this aversion did not spring exclusively from those who were caught up in the [Religious] Revival or from that minority which still remembered Tom Paine: the majority simply hated the law as an artificial imposition on their intelligence and judges as agents of constraint. . . ." "It was not that the American people were positively resolved on becoming lawless, in the manner of cinema badmen, but they did profoundly believe that the mystery of the law was a gigantic conspiracy of the learned against their helpless integrity. . . ." Id. at 102. "A phenomenon of fundamental importance for both the social and intellectual history of America is the amazing rise, within three or four decades, of the legal profession from its chaotic condition of around 1790 to a position of political and intellectual domination. Had this triumph been achieved merely as a professional advance in prestige and wealth, it would deserve only our passing notice; but it was expressed through a massive philosophical formulation, culminating in the voluminous commentaries of [David] Hoffman, [James] Kent, and [Joseph] Story. Progressively unfolded in the wide-ranging opinions of such judges as [John] Marshall and {Lemuel] Shaw, hammer3e out before the bench in the classic arguments of famous lawyers who to the people were figures as majestic as Finney or Beecher, the formation of American law is this era embraces a mental adventure of heroic proportions." "It was the more remarkable for being accomplished in the face of the widespread hostility of ordinary American to the very concept of law and more specifically their bitter antagonism to the very Common Law.. . . " Id. at 109. "Joseph Story was the most vigorous in beating down the surge of vulgarity with the guild, and for this reason was cordially hated by the majority of practitioners. In 1821, even while congratulating the country on the immense progress already made, he denounced the prevailing ignorance of general principles, the looseness of our declaration and pleadings, our aberrations from a settled and technical phraseology, 'and a neglect of appropriate averments, which not only deprive our pleadings of just pretension to elegance and symmetry, but subject them to the coarser imputation of slovenliness.' We must not, he kept insisting, 'rest satisfied with mediocrity, when excellence is within reach.' Yet Story was not alone in his insistence upon scholarship. Edward Ingraham, for instance, in Philadelphia in 1828 excoriated those dolts who seek in the law as a resting place, 'however unacquainted with the proper preparatory studies, or even a common English education.' The Carolina Law Journal in 1830 pointed out that since the legislature now require a thorough schooling for physicians, so 'it should be equally rigid in exacting proper qualifications on the part of the gentlemen of the bar.'" "Again and again the lawyers impressed upon the democracy the idea that to attain distinction at the bar required so severe an intellectual discipline that few could even hope top measure up to it. . . ." Id. at 136. "Midway through his career at the Philadelphia Bar, Horace Binney, in a mood of candor, declared that the practice of law added nothing to the lawyer's intellect. He is concerned to win, but win or lose, he forgets the case as soon as he has been paid. The physician learns new facts, increases his knowledge from every patient, 'but the lawyer's facts are unproductive of all benefits, except to the fortunate client.' All of this, conceded the sage, justifies the 'sneer which is commonly directed against the mere lawyer'." Id. at 182. (italics added). "David Hoffman addressed himself against this anti-intellectualism more than did Kent of Story. In 1836, he pleaded that a liberal mind must discover its zeal by collecting from the range of science and art whatever may embellish it. In his last valiant appeal, his Circular of 1844, he stood at Thermopylae: he would have naught to do with the notion that law students are to be merely mechanical artisans. No attorney could be 'a good and lasting one' who was not versed in the reasons of the law. 'I therefore cannot acquiesce in, and never will yield to the vulgar error of putting practice before and above theory--it is an unnatural inversion of the established order of nature--an ignorant and slovenly way of urging young men on to attempts far beyond the powers of the human mind'." "Hoffman knew the enemy, if only because he the veteran instructor of young attorneys, lacked the judicial immunity of Kent and Story. The American Jurist for 1839 saluted Hoffman's service to legal education, but objected to this prologues on the nature of man and of society. The student, said this critic, has no need to study the properties of the sea anemone or the metaphysical theories of Descartes, much less to be confounded by theological preliminaries about moral liberty and free agency." Id. at 182-183. "Men of the majestic era of John Marshall--for whom Hoffman spoke--were simply bewildered at this rising insistence upon practicality. They never held that lawyers should not test their learning in the courts, that they should not seek to win decisions. But, that, with their erudition in the Common Law, in civil law and in equity, they should ever conceive of themselves as mere technicians--this notion they repudiated. . . ." Id. at 184. The contest between the intellectual approach, on the one hand, and the anti-intellectual (or practical, or experiential) approach, on the other hand, to legal education is a very long-running one. With any modern-day Storys or Kents unlikely to receive judicial confirmation, and few modern-day Hoffmans unlikely to receive faculty positions, anti-intellectualism continues it ascent in the law; and law move further and further toward the intellectual margins and have as much intellectual relevance as accountants and dentists. The only hope is that law students will want more from the law than a paycheck and, then, be motivated to take responsibility for their education. In America, the intellectual approach to anything is the road less travelled . . . yet it is the road that will truly make all the difference.).

Nicholas Phillipson, Adam Smith: An Enlightened Life (New Haven & London: Yale U. Press, 2010) ("Throughout his life, and in spite of legitimate suspicions about his religious beliefs, Smith's rhetoric and moral philosophy was to become closely associated with moderate Presbyterian ideas of polite education." "Lawyers too were thinking seriously about their calling and their place in public life. Culloden and the Duke of Cumberland's ruthless campaign to exterminate Jacobitism with the sword had revived longstanding fears that the Crown would attempt to pacify the Highlands by conquest. The lawyers, led by Duncan Forbes, the Lord President of the Court of Session, responded to this threat by arguing that the causes of the rebellion had more to do with the structure of clan society than with the ambitions and treachery of a few Highland chiefs, and that the problem of pacifying the Highlands could be better addressed by encouraging civility, commerce and economic improvements than by the use of military force. No one understood this better than William Crosse, Professor of Civil Law at Glasgow and, for a short while, Smith's colleague. He had written a paper on the subject for General Bland, the Commander-in-Chief of HM Forces in Scotland, pointing out that, geographically the Highlands were barren as well as inaccessible and unfit for Corn Culture, [because they afforded] nothing but a coarse kind of grass fit for pasturing the low siz'd cattle of the Country.' Its people 'are always busy'd in grazing and defending their own or attacking & carrying off the cattle belonging to their Neighbours.' Blood-ties turned private quarrels into lethal blood-feuds, which were idealized in legend and song. It was a barbarous form of civilization not unlike the 'parcel of Robbers and Banditti' of ancient Greece and Rome 'that by some strange accidents got themselves form'd into regular Governments and grew to be masters of the world'. As he put it, '[their] way of living [flowed] as naturally from the present condition of their Class, as our does from a more regular Government . . . It is our own fault they have continu'd so long in this way.' Crosse was thinking of Highland culture and the laws and institutions on which it was founded in economic terms, and was proposing that its problems should be considered in historically rather than in narrowly legal terms. It was no coincidence that some senior lawyers had begun to ask whether the present state of legal education was appropriate to present needs. Some thought that advocates, like moderate ministers, should be educated as gentlemen. As the new Lord President, Robert Dundas of Arniston, told the Faculty in 1748, 'Over and above being careful to learn thoroughly the principles of the Roman Law and the Laws of Nature and Nations, they should take pains to acquire the other Sciences and accomplishments becoming the Character of Gentlemen' and, above all, 'that rational & manly eloquence' should be the mark of their profession. Henry Home agreed but had other ideas about how this should be accomplished. As we shall see, he was to find Smith's view about jurisprudence very much to his taste." Id. at 84-85.).

Simon Schama, Scribble, Scribble, Scribble: Writing on Politics, Ice Cream, Churchill, and My Mother (New York: Ecco, 2011) (From "Virtual Annihilation: Anti-Semitism on the Web": "I do not mean to suggest, of course, that the digital world is typified by the engineered delivery of the irrational; only that it is not exactly inhospitable to its propagation. Cyberspace is itself the work of much cerebration, but its most elaborate fabulists are certainly devoted to the primacy of the visceral over the logical. They know their market. Against instantly summoned, electronically pulsing apparitions--the Celtic crosses of the White Power organizations such as Aryan Resistance, or Stormfront, the mid-1990s creation of the ex-Klansman Don Black--reasoned argument is handicapped, especially in any competition for the attention of alienated adolescents, for whom the appeal of barbarian action is precisely its violent rejection of bookishness. The ultimate Gothic fantasists, the mass murderers of Columbine High School, are known to have been visitors to these websites." "It is commonplace now to observe, with Jay Bolter, that the triumph of the Web represents the overthrow --for good or for ill-- not just the linear narratives, but also of the entire system of Baconian and Cartesian systems of classification, with their explicit commitment to hierarchies of knowledge. The universe of deep cyberspace is akin to whatever lies way beyond the orderly alignment of the planets in our own relatively parochial solar system. Instead it launches the traveller along pathways of links to indeterminate destinations, to the wormholes of epistemology; and along the route the digital argonaut is exposed to a furiously oncoming welter of incoherently arranged bodies of information. The engineers of hate-sites know this, and they depend on catching the aimless surfer who might stumble, for example, on an ostensibly orientalist health site called Bambo Delight, including (really) the Skinny Buddaa Weight Loss Method, and be directed through a single link to the neo-Nazi Police Patriot site designed by Jew Watch and Stormfront." Id. at 86, 91-92. Human history does not move forward in a lineally progressive fashion. There was The Dark Age and, yes, eventually there was The Enlightenment. Human history may not be circular, but it is certainly looping back to another dark(er) age.).

Joseph Story, Commentaries on the Conflict of Law, Foreign and Domestic, in regard to Contracts, Rights, and Remedies, and Especially in regard to marriages, Divorces, Wills, Successions, and Judgments, 2d. ed., (1841) (Union, New Jersey: The Lawbook Exchange, 2001).

Hugh Trevor-Roper, History and the Enlightenment (New Haven & London: Yale U. Press, 2010).

Alfred I. Tauber, Freud, The Reluctant Philosopher (Princeton & Oxford: Princeton U. Press, 2010).

BOOK OF THE WEEK: WEEK THIRTY-THREE, 2011

Martin Jay, The Virtues of Mendacity: On Lying in Politics (Charlotteville & London: U. of Virginia Press, 2010) ("It may be prudent to relax our outrage against hypocrisy under any circumstances, and concede that there are many necessary fictions at the heart of even the most transparent and accountable of political systems." Id. at 180. Yet, for us to be less "outraged against hypocrisy", that is, for us to be less self-righteous in our criticism of political lying, does not mean that we should not hold politicians accountable when they are caught having lied.).

WORMS, BUGS, PLANTS, FLOWERS, GARDENS . . . AND CONSUMERS

Amy Stewart, The Earth Moved: On the Remarkable Achievements of Earthworms (Chapel Hill: Algonquin Books of Chapel Hill, 2005).

Amy Stewart, Flower Confidential (Chapel Hill: Algonquin Books of Chapel Hill, 2007) ("This [New York's Upper West Side] is an upscale neighborhood; the shop charges $150 for the flowers and the square green pottery vase it comes in. If you were to price it out, you might find that the customer paid close to $5 for each 'Limbo' rose in the bouquet. The florist bought the roses for a $1.50 or $2 [] per stem, and that's a premium price that befits an upscale rose. When that same flower left the farm on Monday and made its way down a dusty, eucalyptus-lined road toward the Pan-American Highway and on to Quito, it earned thirty cents for the grower who nurtured it along and prepared it for its long journey. And what about the workers who cut the stem, stripped its leaves, graded it, packed it, and loaded it on the truck? Their wages represent less than four cents for every 'Limbo' sold." Id. at 183-184. "A mixed bouquet for sale at a supermarket could contain roses from Ecuador, carnations from Colombia, and larkspur from California. Where they came from, how they were grown, what was sprayed on them, and how the workers were treated--all these issues get harder and harder to sort out as individual flowers are packed into boxes, bundled into crates, loaded onto cargo planes, and unloaded at international airports, Once flowers begin the final leg of their journey to the consumer, they lose their identity. They blur together in a sea of petals and leaves, of sweet carnation pinks and fiery dahlia reds. It is at this stage, all massed together, that flowers seemed to me for the first time to me utterly faceless, anonymous." "If it seems like flowers have lost their soul in this process well, they have. There's nothing romantic or sentimental about toxic pesticides and underpaid workers. . . ." Id. at 186.)

Amy Stewart, From the Ground Up: The Story of a First Garden (Chapel Hill: Algonquin Books of Chapel Hill, 2001).

Amy Stewart Wicked Bugs: The Louse That Conquered Napoleon’s Army & Other Diabolical Insects (Chapel Hill: Algonquin Books of Chapel Hill, 2011).

Amy Stewart, Wicked Plants: The Weed That Killed Lincoln’s Mother and Other Botanical Atrocities (Chapel Hill: Algonquin Books of Chapel Hill, 2009).

BOOK OF THE WEEK: WEEK THIRTY-TWO, 2011

Daniel J. Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security (New Haven & London: Yale U. Press, 2011) ("I propose to demonstrate how privacy interests can be better understood and how security interests can be more meaningfully evaluated. I aim to refute the recurrent arguments that skew the privacy-security debate toward the security side. I endeavor to show how the law frequently fixes on the wrong questions, such as whether privacy should be protected rather than how it should be protected. Privacy often can be protected without undue cost to security. In instances when adequate compromises can't be achieved, the tradeoff can be made in a manner that is fair to both sides. We can reach a better balance between privacy and security. We must. There is too much at stake to fail. Id. at 3. This is a nontechnical read for the general reader. Important food for thought.).

OOPS!

Stocks Tumble as Signs Point to Weak Global Economy

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FEAR, PROPAGANDA, NATIONALISM: AMERICANS ARE NOT IMMUNE

Ursula Hegi, Children and Fire: A Novel (New York: Scribner, 2011) ("Some books were still smoldering at dawn, but most had disintegrated to ashes when the cleaning crews shoveled them into wheelbarrows, swept the market square, and hauled aways the debris." "Yet, the charred remains got tracked throughout the village, got inside your houses, and soiled your floors even if you hadn't been near the pyre. As the smell of wet ashes seeped through your closed windows and doors, it settled in your bedding, your clothing, your wardrobes. The affront of that smell--flat and nasty--made you want to spit. You were sure you'd never get used to it; and yet despite your ceaseless scrubbing an airing, it would become part of your own smell, in your breath, on your skin, increasingly familiar." Id. at 235. From the bookjacket: "As Ursula Hegi writes along the edge where sorrow and bliss meet, she shows us how one society--educated, cultural, compassionate--can skip into a reality that's fabricated by propaganda and controlled by fear, how a surge of national unity can be manipulated into the dehumanization of a perceived enemy and the justification for torture and murder." Weimar Germany morphing into Nazi Germany. Is post-9/11 America in the process of a similar disintegration?).

CENSORSHIP, INFORMING: AMERICANS ARE NOT IMMUNE

Ursula Hegi, Stones From the River: A Novel (New York & London: Poseidon Press, 1994) ("That spring of 1933 more than two hundred authors were pronounced decadent, traitorous, Marxist, or corrupt. All over Germany, people were ordered, 'Reinigt Eure Buchereien'--'Clean your libraries'--and incited to hunt down books by banned authors like Bertolt Brecht, Sigmund Freud, Irmgard Keun, Stefan Zweig, Franz Werfel, Lion Feuchtwanger, Heinrich Mann, and every writer on the blacklist. As bookstores, libraries, and private homes were raided, you risked arrest if you didn't relinquish those books. In school, children were encouraged to turn their parents in for owning forbidden literature." Id. at 164.).