SUGGESTED READINGS IN NINETEENTH-CENTURY AMERICAN LITERATURE

John James Audubon, Writings and Drawings, edited by Christopher Irmscher (New York: Library of America, 1999).

Stephen Crane, Prose and Poetry: Maggie: A Girl of the Streets; The Red Badge of Courage; Stories, Sketches, and Journalism; Poetry, edited by J. C. Levenson (New York: Library of America, 1984) (From "The Black Riders and Other Lines": "A learned man came to me once./ He said, 'I know the way, --come.'/ And I was overjoyed at this./ Together we hastened./ Soon, too soon, were we/ Where my eyes were useless,/ And I knew not the ways of my feet./ I clung to the hand of my friend; /But at last he cried, 'I am lost'. " Id. at 1299, 1305.).

Frederick Douglass, Autobiographies: Narrative of the Life of Frederick Douglass, an American Slave; My Bondage and My Freedom; Life and Time, edited by Henry Louis Gates, Jr. (New York: Library of America, 1994).

Washington Irving, History, Tales and Sketches: Letters of Jonathan Oldstyle, Gent.; Salmagundi or, The Whim-Wham and Opinions of Launcelot Langstaff, Esq. & Others; A History of New York from the Beginning of the World to the End of the Dutch Dynasty; The Sketch Book of Geoffrey Crayon, Gent., edited by James W. Tuttleton (New York: Library of America, 1983) (From A History of New York: " 'Strike while the Iron is hot,' was a favourite saying of Peter the Great, while an apprentice in a blacksmith's shop, at Amsterdam. It is one of those proverbial sayings, which speak a word to the ear, but a volume to the understanding--and contain a world of wisdom, condensed within a narrow compass---Thus every art and profession has thrown a gem of the kind, into the public stock, enriching society by some sage maxim and pithy apothegm drawn from its own experience; in which is conveyed, not only the arcana of that individual art or profession, but also the important secret of a prosperous and happy life. 'Cut your coat according to your cloth,; says the taylor--'Stick to your last,' cries the cobler--Make hay while the sun shines,' says the farmer--'Prevention is better than cure,' hints the physician--Surely a man has but to travel through the world, with open ears, and by the time he is grey, he will have all the wisdom of Solomon--and then he has nothing to do but to grow young again, and turn it ti best advantage." Id. at 363, 642.).

Washington Irving, Three Western Narratives: A Tour of the Prairies; Astoria; The Adventures of Captain Bonneville, edited by James P. Ronda (New York: Library of America, 2004).

Herman Melville, Pierre or, The Ambiguities; Israel Potter: His Fifty Years of Exile; The Piazza Tales; The Confidence-Man: His Masquerade; Uncollected Prose; Billy Budd, Sailor (An Inside Narrative), edited by Harrison Hayford (New York: Library of America, 1984) (From Pierre: "The venerable merchants and accountants held a meeting, at which it was finally decided, that, hard and unwelcome as the necessity might be, yet it was now no use to disguise the fact, that the building could no longer be efficiently devoted to its primitive purpose. It must be divided into stores; cut into offices; and given for a roost to the gregarious lawyers. This intention was executed, even to the making offices high up in the tower; and so well did the thing succeed, that ultimately the church-yard was invaded for a supplemental edifice, likewise to be promiscuously rented to the legal crowd. But this new building very much exceeded the body of the church height. It was some seven stories; a fearful pile of Titanic bricks, lifting its tile roof almost to a level with the top of the sacred tower." "In this ambitious erection the proprietors went a few steps, or rather a few stories, too far. For as people would seldom willingly fall into legal altercations unless the lawyers were always handy to help them; so it is ever an object with lawyers to have their offices as convenient as feasible to the street; on the ground-floor, if possible, without a single acclivity of a step; but at any rate not in the seventh story of any house, where their clients might be deterred from employing them at all, if they were compelled to mount seven long flights of stairs, one over the other, with very brief landings, in order even to pay their preliminary retaining fees. So, from some time after its throwing open, the upper stories of the less ancient attached edifice remained almost wholly without occupants; and by the forlorn echoes of their vacuities, right over the head of the business-thriving legal gentlemen below, must--to some few of them at least--have suggested unwelcome similitudes, having reference to the crowded state of their basement-pockets, as compared with the melancholy condition of their attics; --alas! full purses and empty heads! . . ." Id. at 1, 310-311. From Billy Budd, Sailor (An Inside Narrative): "Marvel not that having been made acquainted with the young sailor's essential innocence the worthy man lifted not a finger to avert the doom of such a martyr to martial discipline. So to do would not only have been as idle as invoking the desert, but would also have been an audacious transgression of the bounds of his function one as exactly prescribed to him by military law as that of the boatswain or an other naval officer. Bluntly put, a chaplain is the minister of the Prince of Peace serving in the host of the God of War--Mars. As such, he is an incongruous as a musket would be on the alter at Christmas. Why, then, is he there? Because he indirectly subserves the purpose attrsted by the cannon; because too he lends the sanction of the religion of the meek to that which practically is the abrogation of everything by brute Force." Id. at 1351, 1425.).

William James, Writings 1878-1899: Psychology: The Briefer Course; The Will to Believe and Other Essay in Popular Philosophy; Talks to Teachers of Psychology and to Students on Some of Life's Ideals; Selected Essays, edited by Gerald E. Myers (New York: Library of America, 1992) (From Psychology: The Briefer Course: "The reason why cramming is such a bad mode of study is now made clear. I mean by cramming that way of preparing for examinations by committing 'points' to memory during a few hours or days of intense application immediately preceding the final ordeal, little or no work having been performed during the previous course of the term. Things learned thus in a few hours, on one occasion, for one purpose, cannot possibly have formed many association with other things in the mind. Their brain-processes are led into by few paths, and are relatively little liable to be awaken again. Speedy oblivion is the almost inevitable fate of all that is committed to memory in this simple way. Whereas, on the contrary, the same materials taken in gradually, day after day, recurring in different contexts, considered in various relations, associated with other external incidents, and repeatedly reflected on, grow into such a system, form such connections with the rest of the mind's fabric, lie open to so many paths of approach, that they remain permanent possessions. This is the intellectual reason why habits of continuous application should be enforced in educational establishments. Of course there is no moral turpitude in cramming. Did it lead to the desired end of secure learning, it were infinitely the best method of study. But it does not; and students themselves should understand the reason why." Id. at 1, 279-280. From "Remarks on Spencer's Definition of Mind as Correspondence": "The truth appears to be that every individual man may, if it please him, set up his private categorical imperative of what rightness or excellence in though shall consist in, and these different ideals, instead of entering upon the scene armed with a warrant . . . appear only as so many brute affirmation left to fight it out upon the chess-board among themselves. They are, at best, postulates, each of which must depend on the general consensus of experience as a whole to bear out its validity. The formula which proves to have the most massive destiny will be the true one. But this is a point which can only be solved ambulando, and not by any a priori definition. The attempt to forestall the decision is free to all to make, but all make it at their risk. Our respective hypotheses and postulates help to shape the course of thought, but the only thing which we all agree in assuming is, that thought will be coerced away from them if they are wrong. If Spenser to-day says, 'Bow to the actual,' whilst Swinburne spurns 'compromise with the nature of things,' I exclaim, 'Fiat justitia, pereat mundus,' and Mill says, 'To hell I go, rather than "adjust" myself to an evil God,' what umpire can there be between us but the future? The idealists and the empiricists confront each other like Guelphs and Ghibellines, but each alike waits for adoption, as it were, by the course of events." "In other words, we are all fated to be, a priori, teleologists whether we will or no. Interests which we bring with us, and simply posit or take our stand upon, are the very flour out of which our mental dough is kneaded. The organism of thought, from the vague dawn of discomfort or ease in the polyp of the intellectual joy of Laplace among his formulas, is teleological through and through, Not a cognition occurs but feeling is there to comment on it, to stamp it as of greater or less worth. . . . To attempt to hoodwink teleology out of sight by saying nothing about it, is the vainest of procedures. . . . " Id. at 893, 904-905.).

Edgar Allan Poe, Essays and Reviews: Theory of Poetry; Reviews of British and Continental Authors; Reviews of American Authors and American Literature; Magazines and Criticism; The Literary and Social Scene; Articles and Marginalia, edited by G. R. Thompson (New York: Library of America, 1984).

Edgar Allan Poe, Poetry and Tales, edited by Patrick F. Quinn (New York: Library of America, 1984) (From "Instinct vs Reason--A Black Cat": "The line which demarcates the instinct of the brute creation from the boasted reason of man, is, beyond doubt, of the most shadowy and unsatisfactory character--a boundary line far more difficult to settle than even the North-Eastern or the Oregon. The question whether the lower animals do or do not reason will possibly never be decided--certainly never in our present condition of knowledge. While the self-love and arrogance of man will persist in denying the reflective power to beasts, because the granting it seems to derogate from his own vaunted supremacy, he yet perpetually finds himself involved in the paradox of decrying instinct as an inferior faculty, while he is forced to admit its infinite superiority, in a thousand cases, over the very reason which he claims exclusively as his own. Instinct, so far from being an inferior reason, is perhaps the most exacted intellect of all. It will appear to the true philosopher as the divine mind itself acting immediately upon it creatures." Id. at 370, 370.).

Walt Whitman, Complete Poetry and Collected Prose: Leaves of Grass (1855); Leaves of Grass (1891-92); Complete Prose Work (1892); Supplementary Prose, edited by Justin Kaplan (New York: Library of America, 1982) (From Leaves of Grass (1855): "Great is Justice;/Justice is not settled by legislators and laws . . . . it is in the soul,/It cannot be varied by statutes any more than love or pride or the attraction of gravity can,/It is immutable . . it does not depend on majorities . . . . majorities or what not come at last before the same passionless and exact tribunal.//For justice are the grand natural lawyers and perfect judges . . . . it is in their souls,/It is well assorted . . . . they have not studied for nothing . . . . the great include the less,/They rule on the highest grounds . . . . they oversee all eras and states and administrations.//The perfect judge fears nothing . . . . he could go front to front with God,/Before the perfect judge all shall stand back . . . . life and death shall stand back . . . heaven and hell shall stand back." Id at 145.).

BOOK OF THE WEEK: WEEK FIFTY-TWO, 2011

Sugata Bose, His Majesty's Opponent: Subhas Chandra Bose and India's Struggle Against Empire (Cambridge, Massachusetts, & London, England: Belknap/Harvard U. Press, 2011) (" 'In this mortal world, everything perishes and will perish,' Subhas Chandra Bose had written in 1940, 'but ideas, ideals and dreams do not.' As he prepared for a fast unto death, he was confident that the idea for which one individual was prepared to die would incarnate itself in a thousand lives. That, he believed, was how the wheel of evolution turned and how the ideas, ideals, and dreams of one generation were 'bequeathed to the next.' 'No idea has ever fulfilled itself in this world,' he asserted, 'except through an ordeal of suffering and sacrifice.' It is his immense sacrifice--in the the sense of tyag as taught by Ramakrishna and Vivekananda, and kurbani as enshrined on the INA memorial--that has made him the heir to a life immortal." Id. at 327.).

BOOK OF THE WEEK: WEEK FIFTY-ONE, 2011

Ian Kershaw, The End: The Defiance and Destruction of Hitler's Germany, 1944-1945 (New York: The Penguin Press, 2011) ("With this recognition, the signs of disintegration within the civilian population and among ordinary soldiers started to mount. The regime responded in characteristic fashion: by hugely stepping up repression at home." "Of course, repression had been an intrinsic part of the Nazi regime from the outset. The legal profession had fully collaborated in the escalating persecution and responded at every stage to the extra-legal violence of the police and the party's organization by intensifying its own repression. But the repression of the pre-war years, omnipresent through it was, had concentrated on 'outsider' groups. The regime's social and political control rested ultimately on the general acknowledgement by Germans that it would act ruthlessly against those who stood in its way or were deemed in some way or another to be its enemies. As long as the repression was aimed at 'outsiders' and 'undesirables', however, it was accepted, even welcomed, by the majority of the population. And as long as individuals who did not belong to a politically or racially targeted group conformed or did not have the misfortune to be deemed an 'inferior' in some way, to be excluded from the 'people's community'. they were not likely to fall into the clutches of the Gestapo." [] "As the losses at the front mounted alarmingly and the pressures on the civilian population within Germany grew commensurately during the course of 1944, the regime became ever more sensitive to signs of dissent Even so, criticism of the regime widened, as the authorities' own monitoring services plainly indicated." Id. at 207-208. "Bormann's guidelines . . . give clear enough indication that the new courts had little to do with conventional justice. They were, in fact, no more than a facade for increasingly arbitrary and wild terror, 'instruments of destruction in legal drapery'. Death sentences were scarcely more than a formality , all the more so since the judges were themselves under pressure to show their loyalty. Around 6,000-7,000 death sentences are known to have been handed out by the summary courts martial, though in countless other cases the executioners did not even wait for the farce of a quasi-judicial sentence. The summary justice became even more arbitrary and unconstrained after 9 March, when their reach was extended by Hitler's decree creating the 'flying court martial' (fliegendes Standericht). The courts travelled around Germany dealing with those accused of undermining the war effort in whatever way, and wasting no time before reaching their verdict -- usually sentence of death, meted out by the senior officer presiding over the court, and without any appeal. By then, all semblance of centralized control over judicial action was visibly disintegrating, and authorized lawlessness and criminality in the name of upholding the struggle of the German people were becoming rampant as the last phrase of the regime was entered." Id. at 225. Also, see James J. Sheehan, "State of Deception," NYT Book Review, Sunday, 10/23/2011,).

READ STANLEY FISH ON LAW AS A SUBJECT

OPINION | December 12, 2011

Stanley Fish: Teaching Law

By STANLEY FISH

Law is a subject, not just a practice, and should be treated as such.

http://opinionator.blogs.nytimes.com/2011/12/12/teaching-law/?

AN ECONOMIC ANALYSIS OF THE CIVIL RIGHTS MOVEMENT

Marcellus Andrews, The Political Economy of Hope and Fear: Capitalism and The Black Condition in America (New York: NYU Press, 1999) ("This book uses economic analysis as an intellectual scalpel to conduct an economic audit of the Civil Rights movement which shows that the movement toward racial justice in America was assassinated by free markets and the technological whirlwind driving capitalism worldwide rather than by organized racism per se. Racism is still an important and destructive influence on the economic fortunes of black people in America, but it is no longer the primary reason why black people are poorer than white people. Put bluntly, black Americans are generally poorer than white Americans because capitalism and racism combine to limit their access to education and knowledge, which in turn blocks their access to good jobs, decent health care, safe neighborhoods, and good lives. However, racism only abets the more basic problem: black people are poor now because they were so badly discriminated against by historic American racism that they were unprepared for the sea change in American and world economy that has utterly transformed our lives over the past three decades. Black people were completely unprepared for, and unable to take advantage of, the shift in the structure of the American economy toward knowledge- and technology-driven system that offers huge rewards to brains over brawn, because they remained in an industrial labor force in a post-industrial country. Even if every racist white person in this country had a change of heart or moved abroad, most poor black people would be exactly where they are right now in the absence of major changes in government policy to address issues of poverty and economic inequality across color lines." Id. at 2-3. "Of course, market economies rarely function as smoothly as the rhetoric of free market advocates implies. One of the most basic propositions in economics is that a free market economy, left to its own devises, will tend to undersupply education to its citizens. The reason for this type of market failure is known to every competent undergraduate economics major: the wage differences between skilled and unskilled workers only partially reflect the value of greater levels of schooling to society. Increasing the number of skilled workers raises the overall productive capacity of the economy, reduces the social costs of low wages, unemployment, and inequality--including poor support, the direct and indirect costs of crime to private citizens and criminal justice expenditures--and increases the ability of the work fore to adapt to changes in new technologies and to absorb new scientific and technical information, among other things. The typical student/worker will only consider the direct increase in his or her long-term income associated with schooling, just as the typical private school will only consider the contributions that potential new students bring to the institution (principally the increased value of the endowment and the improved academic reputation of the institution). In turn, banks and other sources of educational loans will only consider their own narrow interests in granting or refusing to lend money to finance education Since private schools and commercial banks pay scant attention to the broader, social benefits of schooling to society as a whole, they will generally fund too small a number of students' education choices, thereby leading to a shortage of students and schooling relative to the socially optimal level. Banks will withhold loans from bright but financially strapped students because these borrowers are high-risk investment opportunities compared to wealthier students with more modest intellectual abilities. These basic considerations are the primary justification for public schools, and even in this conservative era, for the public funding of primary, secondary, and college education." Id. at 36-37.).

BOOK OF THE WEEK: WEEK FIFTY, 2011

Jeffrey D. Sachs, The Price of Civilization: Reawakening American Virtue and Prosperity (New York: Random House, 2011) ("The American economy increasingly serves only a narrow part of society, and America's national politics has failed to put the country back on track through honest, open, and transparent problem solving. Too many of America's elites--among the super-rich, the CEOs, and many of my colleagues in academia--have abandoned a commitment to social responsibility. They chase wealth and power, the rest of society be damned." Id. at 4-5. "I have no quarrel with wealth per se. Many wealthy individuals are highly creative, talented, generous, and philanthropic. My quarrel is with poverty. As long as there is both widespread poverty and booming wealth at the top, and many public investments (in education, child care, training, infrastructure, and other area) that could reduce or end poverty, then tax cuts for the rich are immoral and counterproductive." Id. at 8. "Our greatest national illusion is that a healthy society can be organized around the single-minded pursuit of wealth. The ferocity of the quest for wealth throughout society has left Americans exhausted and deprived of the benefits of social trust, honesty, and compassion. Our society has turned harsh, with the elites of Wall Street, in Big Oil, and in Washington among the most irresponsible and selfish of all. When we understand this reality, we can begin to refashion our economy." Id. at 9. "[A]s economic life becomes more complex, we should expect the role of government to become more extensive. Therefore, expecting to find good twenty-first-century economic answers in a constitution that dates back to 1789 is unrealistic. The Founding Fathers were clever, to be sure, but the cleverest thing they realized is that Thomas Jefferson's famous aphorism that 'the earth belongs to the living' means laws from a premodern age should not blindly bind us today. We need fresh thinking about our circumstances, especially at a time of rapid globalization, environmental threats, and a knowledge-based economy." Id. at 45. "We will need . . . to achieve a new mindfulness regarding our needs as individuals and as a society, to find a more solid path to well-being" Id. at 164. "Mindfulness, I would suggest, is crucial in eight dimensions of our lives: Mindfulness of self: personal moderation to escape mass consumerism[;] Mindfulness of work: the balancing of work and leisure[;] Mindfulness of knowledge: the cultivation of education[;] Mindfulness of others: the exercise of compassion and cooperation[;] Mindfulness of nature: the conservation of the world's ecosystems[;] Mindfulness of the future: the responsibility to save for the future[;] Mindfulness of politics: the cultivation of public deliberation and shared values for collective action through political institutions[;] Mindfulness of the world: the acceptance of diversity as a path to peace". Id. at 165. Read this book along with Friedman & Mandelbaum, That Used To Be Us, and Lessig, Republic, Lost. Also, contrast Sachs, The Price of Civilization, with the the views of libertarian law professor Richard A. Epstein, expressed in his October 26, 2011, interview on The News Hour on PBS.).

MEMOIR OF AN EDUCATION

Mary Clearman Blew, This Is Not the Ivy League: A Memoir (Lincoln & London: U. of Nebraska Press, 2011) ("What can be accomplished in this place, wonders the young woman, whose idea of a college is the University of Missouri at Columbia. What can be imagined here, what will the future hold?" "The future: she will often feel as though she though she has exchanged the myth of Ariadne and the labyrinth for the myth of Sisyphus. As teacher education program shrink and vocational programs flourish and the job market continues to worsen, she and other liberal arts faculty will find themselves in a No Exit bastion of curriculum quarrels, campus politics, budget cuts, crises of all kinds. But no! They'll insist they're not rolling a rock uphill. They're fighting for their programs, for the liberal arts, in the face of ridicule from the other side of campus: What do some people thing this college is all about! Where do they get the idea that college is about ideas, when everybody knows it's about jobs skills?" One of her colleagues--the students call his Spiderman, for his strange lunging gait down the corridors of Cowan Hall--has a habit of beginning his sentences with, 'At Yale, we used to . . .' to cries of derision. This is not the Ivy League!" Id. at 14. As a legal academic I cannot help wondering, fearing really, what legal education and law students are going to look like in the future when there is no longer even a modest effort to expose undergraduate students (including prelaw students) to ideas, and, instead, to only provide them with job skills? College as skills school, or college as job faire. Then again, this is not some distant future. Legal education, certainly once one gets pass the elite 10 to 20 law schools, is less interested in ideas and more interested in how-to skills, no longer interested in ideas and skills, just interested in a narrow set of skills which they claim will render their students 'practice ready.' Law schools are devolving into trade schools--and law devolves from a learned profession to a mere trade--; and 'practice ready' is the marching tune sung by those who leading the demise of legal education. That said, the book is not primarily about the state of education. Rather, it is a memoir of one woman's education, one women's life. From the bookjacket: ""Mary Clearman Blew's education began at home, on a remote cattle ranch in Montana. She graduated to a one-room rural school, then escaped, via scholarship, to the University of Montana, where, still in her teens, she met and married her first husband. This Is Not the Ivy League is her account of what it was to be that girl, and then that woman--pressured by husband and parents to be the conventional wife of the 1950s, persisting in her pursuit of an education, trailed by a reluctant husband and small children through graduate school, and finally entering the job market with a PhD in English only to find a whole new set of pressures and prejudices." "This memoir is Blew's behind-the-scenes account of pursuing a career at a time when a woman's place in the world was supposed to have limits. It is a story of both the narrowing perspective of the social norm and the ever-expanding possibilities of a woman who refuses to be told what she can and cannot be.").

PLANNING AHEAD FOR WINTER: SUGGESTED READING FOR LAW STUDENTS

Joanna L. Grossman & Lawrence M. Friedman, Inside the Castle: Law and the Family in 20th Century America (Princeton & Oxford: Princeton U. Press, 2011) (From the bookjacket: "Inside the Castle is a comprehensive social history of twentieth-century family law in the United States. [The authors] show how vast, oceanic changes in society have reshaped and reconstituted the American family. Women and children have gained rights and powers, and novel forms of family life have emerged. The family has more or less dissolved into a collection of independent individuals with own wants, desires, and goals. Modern family law, as always, reflects the brute social and cultural facts of family life.").

Leo Katz, Why the Law Is So Perverse (Chicago & London: U. of Chicago Press, 2011) ("In this book I seek to explain why the law is full of perversities . . . : strange and counterintuitive features that one cannot justify but that one would not want to eliminate either. They all have, I will try to show you, a common cause." "The cause turns out to be not, as one might have thought, historical or political or psychological but, rather logical in nature. Creating laws that do not suffer from such problems turns out to be logically impossible. Oliver Wendell Holmes famously said that the life of the law is experience, not logic. He was more wrong than right. Historical experience surely counts. But some of the most fundamental as well as fundamentally strange features of the law are rooted in logic rather than experience." Id. at 2. "The exploitation of loopholes is in fact the lawyer's daily bread, which makes it all the more strange that both lawyers and nonlawyers profess such outrage about it. Actually, the point should probably be put the other way around: what is strange is that, given the contempt in which loophole exploitation is held, it is nevertheless central to legal practice. What can a profession whose main preoccupation consists of this kind of activity say for itself? [] Specifically, I intend to answer three questions about loopholes: First, why is the law so riddled with them? Second, why, once detected, do they usually go uncorrected? And finally, should lawyers be reluctant to exploit them, or should they feel free to?" Id. at 73.).

Forrest McDonald, Novus Ordo Seclorum: The Intellectual Origins of the Constitution (Lawrence: University press of Kansas, 1985).

Annelise Riles, Collateral Knowledge: Legal Reasoning in the Global Financial Markets (Chicago & London: U. of Chicago Press, 2011) ("[T]his book will not address the question of whether swaps are good or bad, or how much regulation of the swap markets there should be. In fact, the premise of the book is that the quantitative metric deployed by all sides in the policy debate--how much government regulation is enough, how much is too much--misses what is most interesting and perhaps most important to understand about regulatory governance, that is its qualitative features, The project of this nook is to ask, what are the qualities of particular aspects of legal knowledge that give it resilience, and legitimacy, in particular contexts? The project makes a case for a more careful understanding o the many unnoticed aspects of the rule of law, This book presents new theory of law and markets, then, but it is purposely "theory close to the ground'--it builds up its analytical categories at close proximity to those of market and regulatory practice and it does so inductively rather than deductively." Id at 14.).

David Robertson, The Judge as Political Theorist: Contemporary Constitutional Review (Princeton & Oxford: Princeton U. Press, 2010) ("The theme of this book is that modern constitutional review cannot always be adequately understood if seen through the traditional categories of the separation of powers. Constitutional courts do more than can be fitted into the domain allowed to courts exercising the judicial function. Much of what they do in what I call 'transforming societies' involves spreading the values set out in the constitution throughout their state and society. Indeed, their idea of what a constitution is does not always fit well with the orthodox idea of a liberal constitution. I try to show that constitutional judges often come near to being applied political theorists, carrying out a quite new type of political function." Id at 1. Robertson looks at constitutional review in Germany, Eastern Europe, France, Canada, South Africa and, of course, the United States.).

Robin West, Normative Jurisprudence: An Introduction (Cambridge Introduction to Philosophy and Law) (Cambridge: Cambridge U. Press, 2011) ("Lawyers, judges, legal scholars, and law students--collectively, the legal profession--all, at various times, criticize, pan, praise, or laud laws. Thus, lawyers are inclined to say, in any number of formal and informal context, 'this law is a good law (or a bad law)' or 'this regulation is a godsend (or a calamity)'; 'that piece of legislation is a breach of trust (or an act of food faith)'; t' that legal regime, even, is a boom (or a bust) for mankind.' How do we do that? What is it that lawyers know, if anything, about law, society, or political morality that informs their nonadversarial critical work? . . . Knowledge of the law that exists cannot alone generate the basis of our conclusions regarding the law that ought to be--although it is surely true, as countless scholars have pointed out for the past one hundred years, that our judgments regarding the aw that ought to be influence out understanding of the law that is." Id. at 1. "So what fills the gap from the legal is to the legal ought for the legal critics?. . . What is the justice we rightly demand of law?" Id. at 1-2. "If there is a field of study that could profitably ask questions about our normative framework for evaluating, criticizing, praising or panning law, it should be jurisprudence--both analytic jurisprudence, which might as what we mean by justice, or the good, against which we evaluate law, and critical jurisprudence, which might ask how we should, and how we can, sufficiently distance ourselves fro the profession in which we participate, so as to better criticize our deepest and most defining legal commitments." Id at 2. "The overriding purpose of this book is to explore the reasons that each of the three major jurisprudential traditions of North American legal theory--natural law, legal positivism, and critical legal theory--has abandoned normative inquiry and to urge that we change of course." Id. at 3. Though it is certainly beyond the scope of West's book, a lurking unasked question is why legal education has, with an increasingly rare exception, abandoned teaching (or exposing their) students to jurisprudence. Obviously, in the current fad of the 'practice-ready'-approach to legal education, jurisprudence is increasingly deemed pretty much irrelevant.).

Morton White, The Philosophy of the American Revolution (New York: Oxford U. Press, 1978) (From the bookjacket: "Self-evident truth . . . unalienable rights . . . the pursuit of happiness . . . These terms are familiar to every schoolchild, but what do they really mean? Now for the first time a scholar who is both a philosopher and a historian lucidly analyzes the main ideas that guided the American revolutionaries of 1776. What did they believe, and how did they justify the steps they took? What were the political consequences--actual and possible-- of the Revolutionary philosophy? In answering these questions, this profound work fills a gap in the history of the American Revolution>' "The book illuminates the theory of knowledge (self-evident truth), the metaphysics (the nature or essence of man), the philosophical theology (God's ends for man), and the ethics (natural rights and duties) upon which the Founding Fathers rested their claim to independence. No modern American politician has attempted to apply technical philosophical doctrines, but White shows that Thomas Jefferson Alexander Hamilton, John Adams, and James Wilson certainly did so. Ironically they appealed to self-evident truths which were hardly self-evident to all of the people, and to the essence of man, which was certainly not penetrable by any of the people." 'White notes that they fully acknowledged their failure to invent any new philosophical ideas and that they admitted their dependence on the views of earlier Western philosophers and jurists, For this reason, White carefully describes the ties with other important figures in the history of Western thought. The difficult philosophical statements int he Declaration of Independence and other American writings of the eighteenth century become much more comprehensible when linked with the ideas of philosophers and jurists like Aristotle, Cicero, Aquinas, Hooker, Locke, Pufendorf, and Burlamaqui.").

William M. Wiecek, The Sources of Antislavery Constitutionalism in America, 1760-1848 (Ithaca and London: Cornell U. Press, 1977).

CONNING OURSELVES: PERSONAL PHILOSOPHY AS RATIONALIZATION

Arthur Phillips, The Tragedy of Arthur: A Novel (New York: Random House, 2011) ("What was I stealing? That day, twenty-eight years old, I would have self-righteously said, 'Happiness,' snatched from corporate dullardry . . . Later, thirty-seven years old, I would, self-glorifying, have said I was stealing my 'better self' away, becoming a novelist, chasing destiny . . . Now, forty-six, I would, slightly more self-aware, say that I was stealing away from adult responsibility because it hadn't yet proven to me its superiority over youthful irresponsibility . . . Over the years, I have pulled out all these meanings as needed to garb my naked actions. Philosophy is inclination dressed in a toga." Id. at 102-103.).

BOOK OF THE WEEK: WEEK FORTY-NINE, 2011

Lawrence Lessig, Republic, Lost: How Money Corrupts Congress--and a Plan to Stop It (New York & Boston: Twelve, 2011) ("The aim of this book . . . is to convince you that a much more virulent, if much less crude, corruption does indeed wreck our democracy. Not a corruption caused by a gaggle of evil souls. On the contrary, a corruption practiced by decent people, people we should respect, people working extremely hard to do what they believe is right, yet decent people working with a system that has evolved the most elaborate and costly bending of democratic government in our history. There are good people here, yet extraordinary bad gets done." "This corruption has two elements, each of which feeds the other. The first element is bad governance, which means simply that our government doesn't track the expressed will of the people whether on the Left or on the Right. Instead, the government tracks a different interest, one not directly affected by votes or voters. Democracy, on this account, seems a show or a ruse; power rests elsewhere." "The second element is lost trust: when democracy seems a charade, we lose faith in its process. That doesn't matter to some of us--we will vote and participate regardless. But to more rational souls, the charade is signal: spend your time elsewhere, because this game is not for real. Participation thus declines, especially among the sensible middle. Policy gets driven by the extremists at both ends." Id at 8-9. "As a former young Republican--indeed, Pennsylvania's state chairman of the Teen Age Republicans--I don't mean to rally anyone against the rich. But I do mean to rally Republicans and Democrats alike against a certain kind of rich that no theorist on the Right or the Left has ever sought seriously to defend: The rich whose power comes not from hard work, creativity, innovation, or the creation of wealth. The rich who instead secure their wealth through the manipulation of government and politicians. The great evil that we as Americans face is the banal evil of second-rate minds who can't make it in the4 private sector and who therefore turn to the massive wealth directed by our government as the means to securing wealth for themselves. The enemy is not evil. The enemy is well dressed." Id. at 7. " 'There is only one issue in this country,' former MSNBC commentator Cenk Uygur told Netroots Nations, in June 2011, 'Campaign finance reform.' " "For the vast majority of America, Uygur's comment is obscure. For a small minority, it is obvious. This book is written for that vast majority, drawn from the insights of that small minority." "As I have struggled to craft it, I have become driven by the view that practically every important issue in American politics today is tied to this 'one issue in this country,' and that we must find a way to show the connections. For both the Left and the Right, until this 'one issue' gets fixed, there won't be progress on a wide range of critically important public policy issues. Until it gets fixed, governance will remained stalled." Id. at xi. After reading this, go back a re-read Friedman & Mandelbaum, That Used To Be Us (2011), last week's 'BOOK OF THE WEEK'. The issues discusses there and here are intimately connected.).

WATER POLITICS, LESSONS TO BE LEARNED

Donald Worster, Rivers of Empire: Water, Aridity and The Growth of The American West (New York: Pantheon, 1985) ("Interestingly, free-market liberals like Fuller and anticommunist ideologues like Wittfogel, along with some technocratically inclined radicals, have all refused to acknowledge how the fate of humans is inextricably linked to that of nature--in the present and in the past. However, like many of the most important facts of our lives, this cannot be easily proved or dismissed in the way we would handle a scientific proposition--one which says, for instance, that heating a candle will cause it to melt. Instead, we must strive to find and test a historical truth that has consistent, observable, and demonstrable expressions. When that very wise Englishman C. S. Lewis wrote, 'What we call Man's power over Nature turns out to be a power exercised by some men over other men with Nature as its instrument,' he had that kind of truth in mind. And when the contemporary French social theorist Andre Gorz declares, 'The total domination of nature inevitably entails a domination of people by the the techniques of domination,' he too is talking truth about a general historical truth, not a chemical reaction. A historical truth cannot be nicely calibrated or made exactly predictive without being reduced to triviality. In the case of the human implications of intensified water control, it is not possible to argue that this particular dam or that aqueduct will have precisely and in every place the same social impact. Establishing historical truths involves a looser, though still demanding, kind of analysis. It is not a strict determinism of cause-and-effect but rather an imaginative grasp of subtly interacting relationships. Only by that higher approach to historical explanation can we determine, Wifffogel and Fuller to the contrary notwithstanding, where the fate of the hydraulic cycle in the ancient desert regimes has any modern echoes." Id. at 50. "Legitimation involves the transforming of what might be regarded with skeptics or hostility into something acceptable, even honorific. Max Weber defines it as a process of establishing that something is right and proper, or that it is rational to do, when there is no custom or tradition behind it. A bastard child becomes a rightful heir. An unsigned painting becomes the acknowledged work of a master artist. The bourgeoisie take their place in the highest echelons of power, viewed no longer as ignoble upstarts but as leaders and benefactor. A revolutionary government gains support by arguing that it is the genuine voice of the people. In all such cases of legitimation there is at once an appeal to reason--or it may be an effort to redefine what is reasonable--and an appeal to tradition, demonstrating that the new is in fact organically linked to the old and established. When the claimant is a class, government, culture, or mode of production, legitimation usually involves the creation of an ideology, a set of ideas that will justify the claim. To create that authenticating ideology requires the recruiting of a group of persuasive ideologues, whose skill with words and reasoning can overcome opposing ideas, make the outlandish familiar, and motivate people to act in desired ways. Irrigation, as a new technological and social system introduced into American agriculture, went through such a legitimation process, as its ideologues attempted to establish that it was the genuine article--at once the perfection of reason and the fulfillment of tradition." Id. at 114. "Society is like that sky full of sounds, where the unique and the common weave in and out of the ether. Much of social thought has to do with deciding how much attention to give to the individual sound and how much to give the general blur, or with whether there is any virtue in listening at all. In America, we proclaim that the people's voices must be heard. Our air is a continual buzzing, louder and more cacophonous as years go by, and it is anybody's guess what the voices have to say in concert. How tempting, if you are a politician, to heed only the voices that have the sound of money in them. Yet it is also an old American belief that the individual can speak more clearly here than anywhere else in the world--and not just one with a warning to make or an ego to express. Any individual in this society is allowed, the official theory goes, to have an important, self-contained voice. Indeed, some say we pay so much attention to those private sounds that we ignore larger collective cries of anguish and protest. That we are too much a nation of discrete transmitters. That we turn a deaf ear to the common good." Id, at 129. And now we have entered the sovereign, but pretty mindless, state of Twitter-dom.).

A POLEMIC AGAINST THE MEDICAL/PHARMACEUTICAL ESTABLISHMENT

Brad Case, Thugs, Drugs and the War on Bugs: How the Natural Healthcare Revolution Will Lead Us past Greed, Ego, and Scary Germs Prunedale, CA: New Renaissance Books, 2010) (From the book jacket: "The medical/pharmaceutical establishment's historical preoccupation with symptom suppression and disease management is a major factor in why we're so unhealthy. . . ." "Rather than spending all our money treating symptoms and thus creating new diseases, or fighting against the final stages of disease, a rational system of healthcare would focus first on preventing disease, second on identifying the cause of a person's ill health, and third on using safe, non-toxic methods to induce healing. Only after these methods have been employed should drugs or surgery even been considered." Interesting food for thought!).

IT"S NOT EASY BEING GREEN, or A POLEMIC ON YOUR UNWITTING CONSUMPTION OF CHEMICALS

Will Allen, The War on Bugs (White River Junction, VT: Chelsea Green Publishing, 2008) ("[W]ell before the start of the twentieth century, advertising space in rural magazines became an essential platform for chemical corporations. By 1900, the ads were producing more revenues for these farm periodicals than their subscriptions ever could. By that point, the concerns of the reader had become secondary to the concerns of the advertisers. Because of this, the views of the chemical advertisers, not the needs of the farmers, have dominated farm magazines for more than a century, and continue to do so today." Id. at xviii. "The War on Bugs is really the story of two wars, one intended, the other a by-product of chemical use. The intended war using pesticides has been directed against insects, bugs, spiders, disease, and fungus and is designed to KILL. The unintended war comes from the use of chemical fertilizers and pesticide that inadvertently kill highly important soil life, such as microorganisms and earthworms, and their drift that contaminates areas next door and thousands of miles away. Both of these wars have had devastating effects on America's water, farmland soil, wildlife, an rural population. Id. at xxvii. "Based on historical and modern evidence, we know who will suffer from false advertising, resistance problems, and the low yields, crop failures, and lawsuits that result from genetic manipulation. In all the debacles of chemical agriculture since the mid-1800s, it was the farmers who went bankrupt from using defective and worthless fertilizers and pesticides--not the chemical corporations." Id. at 202. In the word of Joni Mitchell, "Give me spores on my apples . . . .").