September 30, 2011


Clayton P. Gillette, Local Redistribution and Local Democracy: Interest Groups and the Courts (New Haven & London: Yale U. Press, 2011) (From the book jacket: "In this thoughtful book, Gillette examines whether recent campaigns to enact ''living wage' ordinances and other local redistribution programs represent gaps in the traditional theory of political opportunism. He explains why intracity wealth transfers do not necessarily negatively affect the localities that use them. He then inquires into the role of courts in distinguishing between the competing explanations for local retribution. . . ." This is an interesting and worthwhile read. In reading it and following the arguments and discussion, law students should be reminded that in thinking about law one needs to know a lot more than law and what they (are likely to) teach you in (most) law schools (e.g., public choice theory, urban finance).).

September 29, 2011


R. Jay Wallace, Rahul Kumar, & Samuel Freeman, eds., Reason and Recognition: Essays on the Philosophy of T. M. Scanlon (Oxford & New York: Oxford U. Press, 2011) (From the "Preface": "T. M. Scanlon is one of the most important philosophers working today. Through his writing and his teaching, he has decisively shaped the questions with which research in moral and political philosophy now grapples, exerting a virtually unrivaled influence on contemporary discussions." Id. at v. Many, if not most, of the essays contain here are worthwhile reading for any law students with a jurisprudential cast of mind.).


Help Wanted: Busybodies With Cameras


More South Koreans are joining the growing ranks of camera-toting bounty hunters, secretly videotaping fellow citizens breaking the law and collecting the rewards.

September 27, 2011


Mark Twain, Autobiography of Mark Twain, Volume 1 (The Mark Twain Papers), edited by Harriet Elinor Smith and other editors of the Mark twain Project (Berkeley, Los Angeles & London: U. of California Press, 2010) ("Although I am finding so much fault with this matter I am not ignorant of the fact that compliments are not often given away. A return is expected. And one get it, too--though not always when the compliments are sent by letter. When an audience applauds, it isn't aware that it is requiring pay for that compliment. But it is; and if the applause is not in some way thankfully acknowledged by the recipient of it,--by bow and smile, for instance--the audience will discover that it was expecting an equivalent. Also, it will withdraw its trade, there and then; it is not going to give something for nothing, not if it knows itself. When a beautiful girl caches a compliment in our eye, she pays spot cash for it with a dear little blush. We did not know we were expecting pay, but if she should flash offended dignity at us, instead of that little blush, we should then know better. She would get no more our trade on those terms. But in truth, compliments are sometimes actually given away, and no bill presented. I know it can occur as much as once in a century, for it has happened to me once, and I am not a century old, yet. I was twenty-nine years ago . I was lecturing in London at the time. I received a most lovely letter, sparkling and glowing with cordial and felicitous praises--and there was no name signed, and no address!" Id. at 183.).

September 26, 2011


Sentencing Shift Gives New Leverage to Prosecutors


Empowered by years of tough sentencing-law changes in state legislatures and Congress, prosecutors have more muscle to extract guilty pleas from defendants and avoid trial.

September 25, 2011


Thomas Jefferson, Writings: Autobiography; A Summary View of the Rights of British America; Notes on the State of Virginia; Public Papers; Addresses, Messages, and Replies: Miscellany; Letters, edited by Merrill Peterson (New York: Library of America, 1984) (From a letter to John Tyler, dated May 26, 1810: "We have long enough suffered under the base prostitution of law to party passions in one judge, and the imbecility of another. In the hands of one the law is nothing more than an ambiguous text, to be explained by his sophistry into any meaning which may subserve his personal malice. Nor can any milk-and-water associate maintain his own dependence, and by a firm pursuance of what the law really is, extend its protection to the citizens or the public. I believe you will do it, and where you cannot induce your colleague to do what is right, you will be firm enough to hinder him from doing what is wrong, and by opposing sense to sophistry, leave the juries free to follow their own judgment." "I have long lamented with you the depreciation of law science. The opinion seems to be that Blackstone is to us what the Alcoran is to the Mahometans, that everything which is necessary is in him, and what is not in him is not necessary. I still lend my counsel and books to such young students as will fix themselves in the neighborhood. Coke's institutes and reports are their first, and Blackstone their last book, after an intermediate course of to or three years. It is nothing more than an elegant digest of what they will then have acquired from the real fountains of the law. Now men are born scholars, lawyers, doctors; in our day this was confined to poets. . . . I have indeed two great measures at heart, without which no republic can maintain itself in strength. 1. That of general education, to enable every man to judge for himself what will secure or endanger his freedom. 2. To divide every county into hundreds, of such size that all the children of each will be within reach of central school in it. . . . " Id. at 1225, 1225-1226.).

September 24, 2011


John Sayles, A Moment in the Sun: A Novel (San Francisco: McSweeney's Books, 2011) (From the back cover: "This is the story of that extraordinary moment: the turn of the twentieth century, as seen by one of the greatest storytellers of our times.").

September 22, 2011


Lee Siegel, Are You Serious?: How to Be and Get Real in the Age of Silly (New York: Harper, 2011) ("We say we want meaning in our lives. . . . And the three essences of that search are: Attention, Purpose, and Continuity, through any circumstance, and in any situation." Id. at 50. "Surrounded by our gadgets, we have also lost the knack for the solitude that serious reading and writing once required. . . . As a result of our dependency on the technology of information and communication, even the most literary among us use language almost exclusively to communicate rather than to capture, analyze, or evoke." "Finally, we are becoming more visual and even musical than we are verbal. We are seriously visual and musical, but few of us any longer are serious readers." Id. at 116. Food for serious thought. Or, is it, food for "serious" thought?).

September 21, 2011


Amy Chua, Battle Hymn of the Tiger Mother (New York: The Penguin Press, 2011).

September 20, 2011


Susan J. Pearson, The Rights of the Defenseless: Protecting Animals and Children in Gilded Age America (Chicago & London: U. of Chicago Press, 2011) ("Recent scholarship points to the fact that social control is best conceived as a function rather than a motivation. Campaigns to protect children and animals from cruelty during the Gilded Age undoubtedly exercised social control, but they did so as a function of their avowed aim: to improve the social order by lessening acts of individual violence, relieving suffering, and inculcating a humane sensibility and sense of self-control in others. That anticruelty reformers felt the social order in need of improvement was not doubt a response to the tumultuous times in which they lived. . . . Anticruelty reformers . . . were apt to conflate symptoms and cause in their rush to diagnose and cure the nation's social ills. As anticruelty reformers viewed the towns and cities in which they worked, they saw lame, thin, and overworked horses pulling heavy loads, men beating horses and mules, cattle packed tightly into railroads and goaded at stockyards, children begging on the streets, physically abused, or living without enough food, shelter or supervision. They largely believed that these acts stemmed from their perpetrators' callousness to suffering, willingness to hurt other living beings, greed, intemperance, or a passionate temperament. This temperament, and the acts that its produced, disrupted social order and anticruelty reformers sought to restore that order by appealing both to the heart and to the law." "This book details how such reformers brought together the language of the heart with the power of the law in an ideology of sentimental liberalism." Id. at 8-9. One wonders whether the "ideology of sentimental liberalism" described in this book is, an earlier version of "compassionate conservatism," with less sentimentality. Some social historian have argued that American is entering, if it has not already entered, a New Gilded Age. If so, it will be interesting to see how reformers, especially social conservative reformers will respond. What will be the balance between the language of the heart and the power of law? Will it be an updated, more proactive, more muscular version of compassionate conservatism, or will it be hard-love (if not heartless) conservatism? Perhaps the speeches, position papers, debates, etc., during the Republican primaries and caucuses and leading up to their choosing their official standard-bearers will give us an insight into how a Republican-governed twenty-first-century American Gilded Age would look. Who will be the defenseless, and who will protect the defenseless, when government, as many republicans claim to want, is reduced? Who will protect the defenseless from the powerful?).

September 18, 2011


Abraham Lincoln, Speeches and Writings 1859-1865: Speeches, Letters, Miscellaneous Writings: Presidential Messages and Proclamations (New York: Library of America, 1989) (From a letter to John M. Brockman, dated September 25, 1860: "Dear Sir: Yours of the 24th. asking 'the best mode of obtaining a through knowledge of the law" is received. The mode is very simple, though laborious, and tedious. It is only to get the books, and read, and study them carefully. Begin with Blackstone's Commentaries, and after reading it carefully through, say twice, take up Chitty's Pleading, Greenleaf's Evidence, & Story's Equity &c. in succession. Work, work, work, is the main thing. Yours very truly . . . ." Id. at 180.).

September 16, 2011


Joel Feinberg, The Moral Limits of the Criminal Law, Volume One: Harm to Others (New York & Oxford: Oxford U. Press, 1984) ("The philosophical part of the problem of the limit of criminalization, I now realize, is its deepest and most difficult part. The philosopher not only formulates and applies principles; he analyzes or clarifies concepts. Each main part of this study focuses on a difficult critical concept: harm, offense, autonomy and voluntariness, and morality. Each main concept draws the analyst into a web of related notions: interests, wrongs, omissions causes, consent, reasonableness, rationality, risk, exploitation, coercion, fraud, incapacity, neurosis, depression, choice, community, social change, character. At times it has seemed as if adequate treatment of any one of these topics presupposes adequate treatment of all the others. There may be some truth in that pessimistic thought, but any progress toward enlightenment is possible, it requires that the topics be approached in some rational order, that the whole study to be given a proper formal structure, first things first. That I have tried to do. Id. at viii.).

Joel Feinberg, The Moral Limits of the Criminal Law, Volume Two: Offense to Others (New York & Oxford: Oxford U. Press, 1985).

Joel Feinberg, The Moral Limits of the Criminal Law, Volume Three: Harm to Self (New York & Oxford: Oxford U. Press, 1986).

Joel Feinberg, The Moral Limits of the Criminal Law, Volume Four: Harmless Wrongdoing (New York & Oxford: Oxford U. Press, 1988, 1990).

September 15, 2011


  • Average Scores Slip on SAT

    4 hours ago ... The College Board attributes the decline in average SAT scores this year to the increasing diversity of students taking the test.

September 13, 2011



If It Feels Right ...


The rise of moral individualism has produced a generation unable to speak intelligibly about the virtuous life.

September 12, 2011


Amy Waldman, The Submission: A Novel (New York: Farrar, Straus & Giroux, 2011) ("Use your imagination." Id. at 298.).

September 11, 2011


Don DeLillo, Underworld (New York: Scribner, 1997) (See Michiko Katutani, "A Presceint Novel Retains Its Power," NYT, Friday, July 15, 2011, at C25: "A Decade after 9/11, it's worth rereading Don DeLillo's 1997 masterpiece, 'Underworld," to appreciate how uncannily the author not only captured the surreal weirdness of life in the second half of the 20th century but also anticipated America's lurch into terror and exigencies of the new millennium." Id.).

September 10, 2011


Thomas Mackay, ed., A Plea for Liberty: An Argument Against Socialism and Socialistic Legislation: Consisting of an Introduction by Herbert Spencer and Essays by Various Writers (1891) (Indianapolis: Liberty Fund, 1981) (From M. D. O'Brien, "Free Libraries": "But, we are told, the educational value of Free Libraries is so great as to outweigh all other considerations. Some estimate will shortly be given of this value, but just now it is not out of place to inquire what is meant by this misleading term, education. What is it to be educated. I am a farmer, let us say, and my fathers have been farmers for generations back. Heredity has done something to fit me for a farm life, as it has fitted the Red Indian for his hunting grounds. But I have a son whose tastes are similar to my own. I was bred up on the farm, and accustomed to rural work fro infancy. I have thus acquired a practical knowledge which life-long experience alone can give. Naturally I decide to give my son the same education. No, no, says the State, you must send your children to this school for five or six of the best hours of every day; we cannot allow you to bring them up in ignorance. Now what does this mean? It means that just at the time when a child is beginning to form his tastes, just at the period when the daily habituation to the simple duties of farm life would lay the foundation, both of sound health and practical knowledge, he is taken out of the parent's control, and subjected to a mind-destroying, cramming process, which excludes practical knowledge and creates a dislike for all serious study--for force is always the negation of love. And this, forsooth is education! This is fitting men and women for the practical duties of a world in which the largest portion of the work requires no book learning to do it! The pulpit and the press, the guides of popular opinion, have put it about that there is nothing like books, the shoemaker has been heard to make the same remark about leather, and our School Board mill does it best to turn out the article 'clerk' for a uniform pattern, When shall we learn that the only useful education for nineteen out of every twenty is one which develops a quick ear, a sharp eye, a strong well-knit and muscular frame, and that it is not be be got by repeating lessons, but by continual contact with the facts of everyday life; for thus only can children acquire a practical knowledge of the world in which their future life has got b=to be lived." Id. at 415, 419-421. I hope we never "learn that the only useful education for nineteen out of every twenty is one which develops a quick ear, a sharp eye, a strong well-knot and muscular frame." Knowledge is a form of power. Why should that power be limited to one out of every twenty?).

September 9, 2011


Herbert Spencer, The Man Versus The State with Six Essays on Government, Society, and Freedom, with foreword by Eric Mack, and and introduction by Albert Jay Nook (Indianapolis: Liberty Fund, 1982).

Herbert Spencer, The Principles of Ethics: Volume I, with an introduction by Tibor R. Machan (Indianapolis: Liberty Fund, 1978) ("What Spencer did for libertarianism is what Marx did for communism--provide it with what was to be a full-blown scientific justification, on the model of proper science prominent in his day." "Neither thinker succeeded. . . . " "Much has occurred since Spencer's time, and the free society now enjoys a better theoretical base than ever. It os philosophically well grounded today, and eventually this may come to be recognized and have an impact on concrete political and affairs. e can,nevertheless, learn a great deal from herbert Spencer . . . . Id. at 9-10 (from Tibor R. Machan's "Introduction"). "If insistence on them tends to unsettle established systems of unbelief, self-evident truths are by most people silently passe over; or else there is a tacit refusal to draw from them the most obvious inferences." Id. at 217. "In the consciousness of justice properly so-called, there is included an egoistic as well as an altruistic element--a consciousness of the claim of self and a sympathetic consciousness of the claims of others. Perception and assertion of this claim of self, cannot develop in a society organized for warfare, and carried on by compulsory cooperation. Universal paralysis would ensue if each man was free, within the limits prescribed by equity, to do as he liked. Under a despotic rule there is scope for any amount of generosity but for only a limited amount of justice. The sentiment and the idea can grow only as fast as the external antagonisms of societies decrease and the internal harmonious cooperations of their members increase." Id. at 409. "Complete truthfulness is one of the rarest of virtues. Even those who regard themselves as absolutely truthful are daily guilty of overstatements and understatements. Exaggeration is almost universal. The perpetual use of the word 'very,' where the occasion does not call for it, shows how widely diffused and confirmed is the habit of misrepresentation. And this habit sometimes goes along with the loudest denunciations of falsehood. After much vehement talk about 'the veracities,' will come utterly unveracious accounts of things and people--accounts made unveracious by the use o emphatic words where ordinary words alone are warranted: pictures of which the outlines are correct but the lights and shades and colors are doubly and trebly as strong as they should be." "Here, among the countless deviations of statement from fact, we are concerned only with those in which form is wrong as well as color--those in which the statement is not merely a perversion of the fact but, practically, an inversion of it. Chiefly, too, we have to deal with cases in which personal interests of one or other kind are the prompters to falsehood--now desire to inflict injury, as by false witness; now the desire to gain a material advantage; now the desire to escape a punishment or other threatened evil; now the desire to get favor by saying that which pleases. For in mankind at large, the love of truth for truth's sake, irrespective of ends, is but little exemplified." Id. at 433-434.).

Herbert Spencer, The Principles of Ethics: Volume II, with an introduction by Tibor R. Machan (Indianapolis: Liberty Fund, 1978) ("It is only where the ethics of amity are entangled with the ethics of enmity, that the thoughts about conduct are confused by the necessities of compromise. The habit of aggression outside the society is at variance with recognition of the law implied by nonaggression. A people which gives its soldiers the euphemistic title 'defenders of their country,' and then exclusively uses them as invaders of other countries--a people which so far appreciates the value of life that within its bounds it forbids prizefights, but beyond its bounds frequently takes scores of lives to avenge one life--a people which at home cannot tolerate the thought of inferiority shall bear the self-inflicted evils of inferiority but abroad has no compunction in using bullet and bayonet to whatever extent is needful for conquest of the uncivilized, arguing that the inferior should be replaced by the superior; such a people must think crookedly about the ultimate principles of right and wrong. Now enunciating the code appropriate to its internal policy, it cannot entertain a consistent set of ethical ideas. All through the course of that conflict if races which, by peopling the earth with the strongest, has been a preliminary to high civilization, there have gone on these incongruous activities necessitating incongruous sets of beliefs and making a congruous set of beliefs inadmissible." Id. at 67. "Very few men . . . form opinions in which the general and the abstract have due place. The particular and the concrete are alone operative in their thoughts. Nine legislators out of ten, and ninety-nine voters out of a hundred, when discussion this or that measure, think only of the immediate results to be achieved--do not think at all of the indirect results, or of the effect which the precedent will have, or of the influence on men's characters. . . ." Id. at 216. "Pursuit of happiness without regard to the conditions by fulfillment of which happiness is to be achieved, is foolish socially as well as individually--nay, indeed, more foolish; since the evils of disregarding the conditions are not unfrequently evaded by the individual, but, in consequence of the averaging of effects among many individuals, cannot be evaded by the society." Id. at 259.).

September 8, 2011


Richard A. DeMillo, Abelard to Apple: The Fate of American Colleges and Universities (Cambridge, Massachusetts, & London, England: MIT Press, 2011) ("American higher education is in trouble because an alarmingly small--and shrinking--portion of the public believes that colleges and universities are worth the expense. In business terms, this means that the American public is for the first time questioning the value received for dollars invested in higher education. If American higher education had paid attention to the marketplace, both the penalties for failure and rewards for success would be easier to explain to the public and to the policy makers." Id. at 51. I agree with Stanley Fish, who writes, "Both those who welcome and those (like me) who view with alarm the linking of undergraduate education to student career goals should read this wide-ranging and deeply informed analysis of the issues.").

September 7, 2011


Alan Ehrenhalt. The Lost City: Discovering the Forgotten Virtues of Community of the 1950s (New York: Basic Books, 1995) ("Choice is a good thing in life, and the more of it we have, the happier we are. Authority is inherently suspect; nobody should have a right to tell others what to think or how to behave. . . ." "Those ideas could stand as the manifesto of an entire generation in America, the generation born in the baby-boom years and now [the early twentieth century] in its [late forties, fifties, and sixties]. They are powerful ideas. They all have the ring of truth. But in the past quarter[-plus?]-century, taken to excess, they have caused a great deal of trouble." "The worship of choice has brought us a world of restless dissatisfaction, in which nothing we choose seems good enough to be permanent and we are unable to resist the endless pursuit of new selections--in work, in marriage, in front of the television set. The suspicion of authority has meant the erosion of standards of conduct and civility, visible most clearly in schools . . . ." "We have grown fond of saying that that there is no free lunch, but we forget that it applies in moral as well as economic terms, Stable relationships, civil classrooms, safe streets--the ingredients of what we call community--all come at a price. The price is limits on the choices we can make as individuals, rules and authorities who can enforce them . . . " "A generation ago in America, we understood the implicit bargain and most of us were willing to pay the price. What was it really like to live under the terms of that bargain? Would we ever want to do it again?" Id. at 2-3. In reading this book (prompted by my reading a recent op-ed piece in the NYT by David Brooks), I could not help but think that a significant minority (perhaps even a small majority) of Americans would fully embraced a return to an updated version of the authority or authoritarian aspects of the 1950s. That is, there is a significant minority (or small majority) that would like nothing better than to be able to regulate how others live. Of course, they presume that they will be the authority doing the regulating. Just go to work tomorrow and note the increase in top-down, authoritarian-style management and decision making that has engulfed not just corporate America, but government, education, etc. Yours is not to reason why (i.e., think and criticize), yours is but to do, quit or be fired. Group-think, though denied, is standard operating procedure. Yes, we baby-boomers worshipped and obsessed on choice, and it has gotten us to the mess of early twentieth-century America. Yes, America is failing. (There is a line from the HBO series, The Wire, where one of the characters utters these telling lines: "Do you know what's the trouble is . . . We used to make shit, build shit. Now we just put our hands in the next guy's pocket.") And, yes, many long for more authority and less choice. Yet, I fear that America would not return to the not-so-good-old-days of America in the 1950s described by Ehrenhalt in The Lost City. Rather, I fear that America and Americans, in seeking the comfort and safety that deference to authority might bring, will find itself and themselves in a society more like Nazi Germany of the 1930s and 1940s. "The streets of our country are in turmoil. The universities are filled with students rebelling and rioting. Communists are seeking to destroy our country. Russia is threatening us with her might. And the republic is in danger. Yes- danger from within and without. We need law and order . . . . Without law and order our nation cannot survive . . . ." Adolph Hitler, 1932. Be careful what you wish for, your wishes may come true. Your savior may be your downfall.).

September 6, 2011


Don Peck, Pinched: How the Great Recession Has Narrowed Our Futures and What We Can Do About It (New York: Crown Publishers, 2011) (Does not say anything that you cannot glean from reading the New York Times, listening to the NewsHour on PBS, or looking at the despair in your neighbor eyes. Still, Peck provides a nice summing up. I think a word which will find increasing use in the decade(s) to come is the word "disgruntled." Peck does not use the word, but the word is lurking there as a description of our collective mental state.).

September 5, 2011


Ambrose Bierce, The Devil's Dictionary, Tales, and Memoirs, edited by S. T. Joshi (New York: Library of America, 2011) (From The Devil's Dictionary: "APPEAL, v. t. In law, to put the dice into the box for another throw." Id. at 433, 445. "HABEAS CORPUS, n. A writ by which a man may be taken out of jail when confined for the wrong crime." Id. at 506. "INJUSTICE, n. A burden which of all those that we load upon others and carry ourselves is lightest in the hands and heaviest upon the back." Id. at 529. "IMPARTIAL, adj. Unable to perceive any promise of personal advantage from espousing either side of a controversy or adopting either of two conflicting opinions." Id. at 521. "JUSTICE, n. A commodity which in a more or less adulterated condition the State sells to the citizens as a reward for his allegiance, taxes and personal service." Id. at 536. "LAW, n. Once Law was sitting on the bench, / And Mercy knelt a-weeping. / 'Clear out!' he cried, 'disordered wench! / Nor come before me creeping. / Upon your knees if you appear, / 'Tis plain you have no standing here.' // Then Justice came. His Honor cried: / 'Your status?--devil seize you!' / 'Amica curiae,' she replied-- / 'Friend of the court, so please you.' / 'Begone!' he shouted--'there's the door-- / I never saw your face before!' G. J." Id. at 541. "LAWFUL, adj. Compatible with the will of a judge having jurisdiction." "LAWYER, n., ONE skilled in circumvention of the law." Id. at 541. "LITIGANT, n., A person about to give up his skin for the hope of retaining his bones." "LITIGATION, n. A machine which you go into as a pig and come out as a sausage." Id. at 546. "PRECEDENT, n. In Law, a previous decision, rule or practice which, in the absence of a definite statute, has whatever force and authority a Judge may choose to give it, thereby greatly simplifying his task of doing as he pleases. As there are precedents for everything, he has only to ignore those that make against his interest and accentuate those in the line of his desire, Invention of the precedent elevates the trial-at-law from the low estate of a fortuitous ordeal to the noble attitude of a dirigible arbitrament." Id. at 585. "PROOF, n. Evidence having a shade more of plausibility than of unlikelihood. The testimony of two credible witnesses as opposed to that of only one." Id. at 589.).

September 4, 2011


Abraham Lincoln, Speeches and Writings 1832-1858: Speeches, Letters, and Miscellaneous Writings: The Lincoln-Douglas Debates, edited by Don E. Fehrenbacher (New York: Library of America, 1989) (From "Notes on the Practice of Law": "The leading rule for the lawyer, as for the man, of every calling, is diligence. Leave nothing for to-morrow, which can be done to-day. . . . However able and faithful he may be in other respects, people are slow to bring him business, if he cannot make a speech. And yet there is not a more fatal error to young lawyers, than relying too much on speech-making. If any one, upon his rare powers of speaking, shall claim exemption from the drudgery of law, his case is a failure in advance." Id. at 245, 245).

September 1, 2011


Benjamin Franklin, Autobiography, Poor Richard, and Later Writings: Letters from London, 1757-1775; Paris, 1776-1785; Philadelphia, 1785-1790; Poor Richard's Almanack, 1733-1758; The Autobiography, edited by J. A. Leo Lemay (New York: Library of America, 1987, 1997) (From Poor Richard's Almanack: "A good Lawyer a bad Neighbor." Id. at 465.).