Cosmopolitan Lawyer

GOODBYE TO ALL OF THIS

2012-01-23T00:01:00.005Z

FOLLOWERS OF THE COSMOPOLITAN LAWYER WILL NOTICE THAT THERE WERE QUITE A FEW POSTS YESTERDAY (OR TODAY IN CERTAIN TIME ZONES). ALL OF THOSE POSTS WERE ORIGINALLY SCHEDULED FOR LATER IN THE YEAR BUT, FOR REASONS STATED BELOW, WERE PUBLISHED YESTERDAY. WITH ONE OR TWO EXCEPTIONS, THE ORIGINAL TITLES WERE KEPT. THE ORIGINAL ORDERING HAS NOT BEEN MAINTAINED, SO THERE ARE A FEW ODDITIES.

THE COSMOPOLITAN LAWYER IS CLOSING DOWN. THERE WILL BE NO NEW POSTINGS.

WHAT PERSONAL BENEFIT THIS WRITER DERIVED FROM DOING THE COSMOPOLITAN LAWYER HAS DIMINISHED. AMERICA, INCLUDING THAT LITTLE ISLAND CALLED THE LEGAL PROFESSION, IS HELLBENT ON AN ANTI-INTELLECTUAL TURN, AND UNLIKELY TO TURN ITSELF AROUND IN MY LIFETIME. THE FEW STUDENTS OF LAW WHO WOULD BENEFIT FROM THE READING SUGGESTIONS OF THE COSMOPOLITAN LAWYER, IN ALL LIKELIHOOD, ARE ABLE TO FIND THESE OR OTHER READINGS ON THEIR OWN. THAT WHAT SERIOUS STUDENTS WHO ARE SERIOUS READERS DO. [CAN ONE BE A SERIOUS STUDENT OF, SAY, LAW WITHOUT BEING A SERIOUS READER? DOUBTFUL!!] THEY DO NOT NEED THE COSMOPOLITAN LAWYER'S GUIDANCE. NON-READERS MISS THE POINT ANYWAY.

MAINLY, THIS WRITER HAS COME TO APPRECIATE THAT, AT ITS CORE, THE COSMOPOLITAN LAWYER IS--AND HAS ALWAYS BEEN--A CONCEIT. A CONCEIT THAT NO LONGER SERVES THIS WRITER AND, LIKE MOST CONCEITS, NEVER REALLY DID. STILL, THE WRITER HOPES THAT A FEW STUDENTS HAVE BEEN PROMPTED TO READ A BOOK OR TWO THEY MIGHT NOT OTHERWISE HAVE. IF SO, THEN THE COSMOPOLITAN LAWYER AND THIS WRITER HAVE NOT BEEN COMPLETELY USELESS.

SO, WITH APOLOGIES TO ROBERT GRAVES . . . GOODBYE TO ALL OF THIS.

TRYING TO PURSUE A DIFFERENT PATH

2012-01-22T23:59:00.001Z

Daisetz Teitaro Suzuki, An Introduction to Zen Buddhism, with a foreword by Carl Jung (New York: Grove Press, 1964) ("Taking it all in all, Zen is emphatically a matter of personal experience; if anything can be called radically empirical, it is Zen. No amount of reading, no amount of teaching, no amount of contemplation will ever make one a Zen master. Life itself must be grasped in the midst of its flow; to stop it for examination and analysis is to kill it, leaving its cold corpse to be embraced. . . . " Id. at 102.).

Thich Nhat Nanh, You Are Here: Discovering the Magic of the Present Moment (Boston & London: Shambhala, 2010).

BOOK OF THE WEEK: WEEK SEVENTEEN, 2012

2012-01-22T23:58:00.000Z

Joseph M. Siry, Beth Sholom Synagogue: Frank Lloyd Wright and Modern Religious Architecture (Chicago & London: U. of Chicago Press, 2011).

BOOK OF THE WEEK: WEEK SIXTEEN, 2012

2012-01-22T23:57:00.000Z

Amanda Foreman, A World on Fire: Britain's Crucial Role in the American Civil War (New York: Random House, 2011) (Selected a one of "The 10 Best Books of 2011" by the NYT.).

"SHAKESPEARE IS AN OUTLAW FROM ALL SYSTEMS AND WOULD BE GREAT IN DESPITE OF ALL"--RALPH WALDO EMERSON

2012-01-22T23:56:00.003Z

WERE NOT WE ALL OUTLAWS!

BOOK OF THE WEEK: WEEK FIFTEEN, 2012

2012-01-22T23:56:00.002Z

Robert Polidori, After the Flood (Gottingen: Steidl, 2006) (exceedingly powerful, yet stunningly beautiful photography of the devastation of New Orleans from Hurricane Katrina).

AGAINST NOSTALGIA, NARCISSISM AND FALSE SOLIDARITY AMONG CIVIL RIGHT ACTIVISTM

2012-01-22T23:56:00.001Z

Richard Thompson Ford, Rights Gone Wrong: How Law Corrupts the Struggle for Equality (New York: Farrar, Straus & Giroux, 2011) ("Civil rights activism today suffers from a debilitating combination of nostalgia, narcissism and false solidarity. Nostalgia leads civil rights activists to analyze and attack contemporary racial problems--of which there are many--with the tactics of the past. But today's most severe racial problems are different from those of the past, even if they are continuous with historical injustices. . . . Without a discrete and conspicuous target, much of today's civil rights protest comes off as both shrill and aimless, in stark contrast to the heroic struggles of the mid-twentieth century, where civil rights activism was resolute and focused." "Narcissism poisons civil rights activism by elevating drama and spectacle over practical results. Many of the solutions to today's social injustices will require wonkish policy intervention, frustrating compromises, and tedious negotiations with government, businesses, and other orgnanizations. Instead of the high drama of the Freedom Summers . . . , we face a long, slow winter of institutional reform. The real legatees of the civil rights movement will learn to wield power rather than fight it; cooperate with businesses more often than boycott or sue them; run for office rather than march on the capital. Sustained institutional change offers few resounding victories and fewer opportunities for conspicuous heroism. One must be satisfied with the steady accumulation of modest improvements." "False solidarity obscures the real stakes of social conflicts and allows opportunists with weak moral claims to ride the coattails of the truly deserving. Racists may not make fine distinctions within racial groups, but many of the most debilitating racial disadvantages do. The acculturated and the privileged can avoid much of the toxic legacy of past discrimination. The racial disadvantaged faced by the privileged is different in kind--not just in degree--from that faced by the poor, who must struggle against social isolation, dysfunctional public institutions, counterproductive socialization, high crime, and the resulting psychological despair. . . . The false solidarity that fixates on an imagined common enemy even as actual menaces become more and more diverse has preempted genuine solidarity based o a shared history and humane compassion. True solidarity requires empathy, not identification, Not coincidentally we need a similar empathy among citizens, regardless of race, in order to address our most persistent social injustices." Id. at 206-207. This book is nontechnical and addressed to a educated (but not necessarily in law) readers. I am not sure the arguments are tight, but the dots are more or less loosely connected. Note: On black solidarity, see my post date 10/29/2011. Also see Jeffrey Rosen, "Defining 'Equal'," NYT Book Review, Sunday, 11/13/11.).

BOOK OF THE WEEK: WEEK FOURTEEN 2012

2012-01-22T23:55:00.000Z

Steven Pinker, The Better Angels of Our Nature: Why Violence Has Declined(New York: Viking, 2011) (This is a wonderful, truly wonderful book. I give you my favorite passage:

"The human capacity for compassion is not a reflex that is triggered automatically by the presence of another living thing.[T]hough people in all cultures can react sympathetically to kin, friends, and babies, they tend to hold back when it comes to larger circles of neighbors, strangers, foreigners, and other sentient beings. In his book The Expanding Circle, the philosopher Peter Singer has argued that over the course of history, people have enlarged the range of beings whose interests they value as they value their own. An interesting question is what inflated the empathy circle. And a good candidate is the expansion of literacy.

"Reading is a technology for perspective-taking. When someone else's thoughts are in your head, you are observing the world from that person's vantage point. Not only are you taking in sights and sounds that you could not experience firsthand, but you have stepped inside that person's mind and are temporarily sharing his or her attitudes and reactions. As we shall see, 'empathy' in the sense of adopting someone's viewpoint is not the same as 'empathy' in the sense of feeling compassion toward the person, but the first can lead to the second by a natural route. Stepping into someone else's vantage points reminds you that the other fellow has a first-person, present-tense, ongoing stream of consciousness that is very much like your own but not the same as your own. It's not a big leap to suppose that the habit of reading other people's words could put one in the habit of entering other people's minds, including their pleasures and pains. Slipping even for a moment into the perspective of someone who is turning black in a pillory or desperately pushing burning faggots aways from her body or convulsing under the two hundredth stroke of the lash may give a person second thoughts as to whether these cruelties should ever be visited upon anyone.

"Adopting other people's vantage points can alter one's convictions in other ways. Exposure to worlds that can be seen only through the eyes of a foreigner, an explorer, or a historian can turn an unquestioned norm ('That's the way it's done') into an explicit observation ('That's what our tribe happens to do now'). This self-consciousness is the first step toward asking whether the practice could be done in some in other way. Also, learning that over the course of history the first can become the last and the last can become first may instill the habit of mind that reminds us, 'There but for fortune go I.' "

Id. at 175. There another passage, one I will not provide here, which ends with a great, and telling, punchline regarding our less than rational fears and ability to calculate risks. "The writer Warwick Cairns calculated that if you wanted your child to be kidnapped and held overnight be a stranger, you'd have to leave the child outside and unattended for 750,000 years." Id. at 446.).

If you have not read, might I also suggest the following books by Steven Pinker?

Steven Pinker, The Blank Slate: The Modern Denial of Human Nature (New York: Viking, 2002) (From the bookjacket: "Our conceptions of human nature affects every aspect of our lives, from the way we raise our children to the political involvements we embrace. Yet just as science is bringing us into a golden age of understanding human nature, many people are hostile to the very idea. They fear that discoveries about innate patterns of thinking and feeling may be used to justify inequality, to subvert social change, to dissolve personal responsibility, and to strip life of meaning." " In The Blank Slate, Steven Pinker . . . explores the idea of human nature and its moral, emotional, and political colorings. He shows how many intellectuals have denied the existence of human nature by embracing three linked dogmas: the Blank State (the mind has no innate traits), the Noble Savage (people are born good and corrupted by society), and the Ghost in the Machine (each of us has a soul that makes choices free from biology). Each dogma carries a moral burden, so their defenders have engaged in desperate tactics to discredit the scientists who are now challenging them." "Pinker injects calm and rationality into these debates by showing that equality, progress, responsibility, and purpose have nothing to fear from discoveries about a rich human nature. He disarms even the most menacing threats with clear thinking, common sense, and pertinent facts from science and history. Despite its popularity among intellectuals during much of the twentieth century, he argues, the doctrine of the Blank Slate may have done more harm than good. It denies our common humanity and our individual preferences, replaces hardheaded analyses of social problems with fee-good slogans, and distorts our understanding of government, violence, parenting, and the arts.").

Steven Pinker, The Language Instinct: How the Mind Creates Language New York: Morrow, 1994).

Steven Pinker, The Stuff of Thought: Language as a Window into Human Nature (New York: Viking, 2007) (From the bookjacket: "[Pinker] argues that human thought--from political positions and religious beliefs to advertising gimmicks and comic strips--are built around certain core ideas like space, force, dominance, kinship, and contamination. Look around, and you'll realize that the metaphors we use every day reach back to these primal concepts. Pinker asks how we develop these categories as children, how we apply them to the world around us, and what happens when we apply them in inappropriate ways." ).

Steven Pinker, Words and Rules: The Ingredients of Language(New York: Basic Books, 1999).

BOOK OF THE WEEK: WEEK THIRTEEN, 2012

2012-01-22T23:54:00.000Z

Matthew White, The Great Big Book of Horrible Things: The Definitive Chronicle of History's 100 Worst Atrocities (New York: Norton, 2011) ("Some historians say that the Crusades drove a wedge between Christianity and Islam that still exists to this day, but let's be realistic. Neither of these religions gets along with anybody. It would be difficult to find any time in history when their followers weren't killing each other--and even if you could, that would only be because they were resting up and getting ready for another round." "However, by putting huge numbers of western European aristocrats in close contact with the sophisticated Orient, the Crusades were able to jump-start Western Civilization--in a happy history book that would be the main legacy of the Crusades. For our purposes, however, the main legacy was a harshening of the Christian religion. For the next five hundred years--until the Enlightenment tamed it--western Christianity had an unfortunate tendency to direct violence against unbelievers." "We shall see other religious wars in this book, but those will be wars about people--people trying to impose their beliefs, people wanting to be left alone, people being punished, people being rescued. The Crusades were about a place: the Holy Land." "While fighting over land is quite common, the land in dispute usually provides practical resources--minerals, crops, harbors, farms, strategic location, exploitable labor, or sheer size. Palestine has none of these. The sole resource of the Holy Land is heritage. There's no gold, no oil, very little fertile land, and few natives, noting but sacred sites, so in essence, the Crusades killed 3 million people in a fight to control the tourist trade." Id. at 106. "There is a tendency to dismiss a lot of uncomfortable history as hearsay, but when you get down to it, all history is hearsay. We owe it to the victims to not doubt too readily." Id. at 42.).

BOOK OF THE WEEK: WEEK TWELVE 2012

2012-01-22T23:53:00.001Z

Robert Levine, Free Ride: How Digital Parasites Are Destroying the Culture Business, and How the Culture Business Can Fight Back (New York: Doubleday, 2011) (In the final analysis, there is no such thing as a 'free ride'. Someone, perhaps not the actual rider, is always paying the price. Ultimately it is not just the culture business that is paying for others' so-called 'free ride.' Ultimately, it is the culture that suffers . . . and declines. If the creator of cultural content cannot make a living creating culture, then they will trying to create culture. And that leave our culture where? In the long term, we will get that for which we pay. And, as a result, be culturally poorer for it. From the bookjacket: "In an incisive chronicle of media's collision with the Internet, journalist Robert Levine narrates how the culture business succumbed to the siren song of 'free.' Fearless in its reporting and analysis, Free Ride is an epic tale of value destruction and the business history of the decade." "It has become conventional wisdom that on the Internet, 'information wants to be free.' This memorable phrase helped shape the online business model, but it is now driving the media companies on which the digital industry depends to close their doors. In the first comprehensive business history of a decade of perilous change, Robert Levine uncovers how the United States built an information economy only to find that information worthless." "Levine reveals how technology companies build businesses on content that belongs to others, and spend millions to undercut copyright protection, often through public-advocacy groups that don't make the sources of their funding clear. As crucial decisions are made about the future of the Internet, he reminds us that the online world was shaped by laws and that the battleground of the Net has never been 'neutral.' Also, see Jeffrey Rosen, "Inconspicuous Consumption," NYT Book Review, Sunday, 11/27/2011.).

SUGGESTED FICTION

2012-01-22T23:53:00.000Z

Michael Ondaatje, The Cat's Table: A Novel (New York: Knopf, 2011) (just a good read).

BOOK OF THE WEEK: WEEK ELEVEN, 2012

2012-01-22T23:52:00.000Z

Robert K. Massie, Catherine the Great: Portrait of a Woman (New York: Random House, 2011) (See Kathryn Harrison, "The Empress of All the Russias," NYT Book Review, Sunday, 11/20/2011.).

BOOK OF THE WEEK: WEEK TEN, 2012

2012-01-22T23:51:00.001Z

Max Hastings, Inferno: The World at War, 1939-1945 (New York: Knopf, 2011) (From the bookjacket: "From one of our finest military historians, a monumental work that shows us at once the truly global reach of World War II and its deeply personal consequences." "World War II involved tens of millions of soldiers and cost sixty million lives--an average of twenty-seven thousand a day. . . . [F]or the first time,[Hastings] gives us a magnificent, single-volume history of the entire war." "Through his strikingly detailed stories of everyday people--of soldiers, sailors and airmen; British housewives and Indian peasants; S S killers and the citizens of Leningrad, some of whom resorted to cannibalism during the two-year siege; Japanese suicide pilots and American carrier crews--Hastings provides a singularly intimate portrait of the world at war. He simultaneously traces the major developments . . . and put them in a real human context." "Hastings also illuminates some of the darker and less explored regions under the war's penumbra, including the conflict between the Soviet Union and Finland, during which the Finns fiercely and surprisingly resisted Stalin's invading Red Army; and the Bengal famine of 1943 and 1944, when at least one million people died in what turned out to be, in Nehru's words, 'the final epitaph of British rule' in India." "Remarkably informed and wide-ranging, Inferno is both elegantly written and cogently argued. Above all, it is a new and essential understanding of one of the greatest and bloodiest events of the twentieth century." Also, see Richard J. Evans, "Theater of War," NYT Book Review, Sunday, 11/20/2011.).

BOOK OF THE WEEK: WEEK SEVEN, 2012

2012-01-22T23:51:00.000Z

John Lewis Gaddis, George F. Kennan: An American Life (New York: The Penguin Press, 2011) ("[Kennan] was now approaching Acheson's view that every thing was at risk: the danger, though, was not from rotten apples but from cultural despair. The first barbarians to sack Rome had not held it; nevertheless the blow had begun the end of the roman empire. There was no reason to assume that Europe, 'as we know it--and as we need it--would ever recover from . . . even a brief period of Russian control.' Floodwaters always receded, but was that a good reason not to build dikes? To abandon Europe would be to sever the roots of culture and tradition, leaving the United States with fewer safeguards against tyranny than one might think: 'The fact of the matter is that there is a little bit of totalitarian buried somewhere, way down deep, in each and every one of us. It is only the cheerful light of confidence and security which keeps evil genius down at the usual helpless and invisible depth. If confidence and security were to disappear, don't think that he would not be waiting to take their place.' Retaining their freedoms in a hostile world would require Americans, therefore, 'to whistle loudly in the dark.' That might not be enough to save them." Id. at 263. The debacle of the 2000 Presidential election, the events of September 11, 2001, the two failed wars in Afghanistan and Iraq, and the assaults on civil liberties in the aftermath of 9/11, the bursting of the real estate bubble and the Great Recession of 2007-2008 and its slow and weak recovery (if it is a recovery), have all shaken the American confidence and security. Is a totalitarian waiting in the wings? Would Americans willing embrace their own dictator-saviour? There is a totalitarian in all of us, or at least the desire for the totalitarians solutions to our cultural, political. and economic problems. "The danger for Americans lay less in another Pearl Harbor [or another September 11?] than in what they might do to themselves because they feared one. For confronting totalitarians [terror?] required, in many respects, emulating them. The leader who would attempt this 'must learn to regiment his people, to husband his resources, to guard against hostile agents in his midst, to maintain formidable armed forces in peacetime, to preserve secrecy about governmental decisions, to wield the weapons of bluff and surprise, to wage war in peacetime--and peace in wartime, can these things be done without the selling out the national soul?" Id. at 416. For "Kennan's National War College Lecture on December 21, 1949, . . . [h]is topic that day was a question: 'Where Do We Stand?' The answer, Kennan told the students, depended on where 'you think we have come from, and where you think we are going.' Finding it required to remedying an inattention to history--the tendency to view all problems 'as though the world, like ourselves, had been born only yesterday.' " Id. at at 371. Also see, Henry A. Kissinger, "Mr. X," NYT Book Review, Sunday, 11/13/11.).

BOOK OF THE WEEK: WEEK SIX, 2012

2012-01-22T23:50:00.000Z

Robert N. Bellah, Religion in Human Evolution: From the Paleolithic to the Axial Age (Cambridge, Massachusetts, & London, England: Belknap/Harvard U. Press, 2011) (From the bookjacket' "Religion in Human Evolution is a work of extraordinary ambition--a wide-ranging, nuanced probing of our biological past to discover the kinds of lives that human beings have most often imagined were worth living. It offers what is frequently seen as a forbidden theory of the origins of religion that goes deep into evolution, especially but not exclusively cultural evolution." "How did our early ancestors transcend the quotidian demands of everyday existence to embrace an alternative reality that called into question the very meaning of their daily struggle? Robert Bellah . . . identifies a range of cultural capacities, such as communal dancing, storytelling, and theorizing, whose emergence made this religious development possible. Deploying the latest findings in biology, he traces the expansion of this cultural capacities from the Paleolithic to the Axial Age (roughly, the fist millennium BCE), when individuals and groups in the Old World challenged the norms and beliefs of class societies ruled by kings and aristocracies. These religious prophets and renouncers never succeeded in founding their alternative utopias, but they left a heritage of criticism that would not be quenched." "Bellah's treatment of the four great civilizations of the Axial Age--in ancient Israel, Greece, China and India--shows how all existing religions, both prophetic and mystic, to be rooted in the evolutionary story he tells. Religion in Human Evolution answers the call for a critical history of religion grounded in the full range of human constraints and possibilities.").

BOOK OF THE WEEK: WEEK FIVE, 2012

2012-01-22T23:48:00.000Z

Julia Lovell, The Opium War: Drugs, Dreams and the Making of China (London: Picador, 2011) (From the bookjacket: "In October 1839 . . . a Cabinet meeting in Windsor voted to fight Britain's first Opium War (1839-42) with China, The conflict turned out to be rich in tragicomedy; in bureaucratic fumblings, military missteps, political opportunism and collaboration. Yet over the past hundred and seventy years, this strange tale of misunderstanding, incompetence and compromise has become the founding myth of modern Chinese nationalism: the start of China's heroic struggle against a Western conspiracy to destroy the county with opium and gunboat diplomacy." "Beginning withe dramas of the war itself, Julia Lovell explores its background, causes and consequences: Qing China's expansive interactions with the world beyond its borders; the mutual incomprehension that pushed both sides towards war; the hypocrisy of the British; the terrible bloodshed resulting from the Britain's technical superiority. She then traces out the construction of the Opium War myth in both China and the West, via China's intensifying sense of guochi (national humiliation) and the West's fear of Yellow Peril retribution, ending in the Chinese Communist Party's ongoing efforts to harness historical memory. Through this larger narrative, she weaves the curious stories of opium's promoters and attackers--of smugglers turned gentleman; of self-loathing Chinese nationalist; of doctors who tried to detox smokers with arsenic, heroin and cocaine; of twentieth-century China's two great dictators, Chiang Kai-shek and Mao Zedong (both sworn pubic enemies of opium both bankrolled by drug-trade profits.)." The Opium War is both the story of modern china--starting form this first conflict with the West--and an analysis of the country's contemporary self-image. It explores how China's national myths mould its interactions with the outside world, how public memory is spun to serve the present, and how delusion and prejudice on both sides have bedevilled its relationship withe he modern West." Although Lovell mentions it, she does not develop the fact that all of this was triggered in an imbalance in trade between China and the West, mainly Britain. Gold was leaving Britain to may for the British appetite for Chinese goods, while the Chinese were not buying British goods. It is a reminder that the choice is not between peace and war, but rather between trade and war.).

TALKING ABOUT MORTALITY

2012-01-22T23:46:00.000Z

Joan Didion, Blue Nights (New York: Knopf, 2011) ("When we talk about mortality we are talking about our children." Id. at 54.).

WHEN IT COMES TO MAXIMIZING OUR OWN WELL-BEING, EACH OF US IS PROBABLY OUR OWN WORST ENEMY.

2012-01-22T23:45:00.000Z

Michael W. Klein, Something for Nothing: A Novel (Cambridge, Massachusetts, & London, England: MIT Press, 2011) ("Is economics useful for everyday life? Scarcity is the central economic challenge. The most common scarce resource is time since absolutely nobody feels as if they have enough of it. Economic theory has something to say about this, about how to allocate scarce hours. If the long-run benefit to your career of an additional hour spent working preparing for class, then, by all means, get that data set in order. If you have more fun (the common name for what economists call 'utility') watching one more movie than reading one more book, go buy that ticket and a box of popcorn, too. A well-trained economist like David Fox knows about these calculations and should be able to draw on this theory to make his life better. But there's a big difference between knowing what you should do and actually doing it.' Id. at 53.).

SUGGESTED FICTION

2012-01-22T23:39:00.000Z

Russell Banks, Lost Memory of Skin: A Novel (New York: Ecco. 2011) ("He doesn't know which story to believe. . . . His mind is bouncing off competing versions of reality as if he is living inside a video game and it's making him feel dizzy and nauseated. He wonders if the Writer's harsh theory about knowledge --that you can't ever know the truth about anything-- is true after all. Maybe it is. Maybe it isn't. But the Kid can't even know that: he's stuck between believing the Writer's theory and not believing it." Id. at 410. And so are we all!).

Roberto Bolano, The Third Reich, translated from the Spanish by Natasha Wimmer (New York: Farrar, Straus & Giroux, 2011) (See Michael Wood, "Playing With History," NYT Book Review, Sunday, 12/25/2011.).

Don DeLillo, The Angel Esmeralda: Nine Stories (New York: Scribner, 2011) See Liesl Schillinger, "Unnamed Sources," NYT Book Review, Sunday, 11/20/2011.).

Anita Desai, The Artist of Disapearance: Three Novella (Boston & New York: Houghton Mifflin Harcourt, 2011) (See Randy Boyagoda, "Hidden in Plain Sight," NYT Book Review, Sunday, 12/11/2011.).

Umberto Eco, The Prague Cemetery: A Novel, translated from the Italian by Richard Dixon (Boston & New York: Houghton Mifflin Harcourt, 2011) (From the bookjacket: "Nineteenth-century Europe--from Turin to Paris--abounds with the ghastly and the mysterious. Jesuits plot against Freemasons. Italian republicans strangle priest with their own intestines. French criminals plan bombings by day and celebrate Black Masses at night. Every nation has its own secret service, perpetrating forgeries, plots, and massacres. Conspiracies rule history. From the unification of Italy to the Paris Commune to the Dreyfus Affair to The Protocols of the Elders of Zion, Europe is in tumult and everyone needs a scapegoat. But what if, behind all these conspiracies, both real and imagined, lay one one man? What if that evil genius created the world's most infamous document?" "Umberto Eco takes his readers on a remarkable journey through the underbelly of world-shattering events. . . .").

Jeffrey Eugenides, The Marriage Plot: A Novel (New York: Farrar, Straus & Giroux, 2011) (From the bookjacket: "Are the great love stories of the nineteenth century dead? Or can there be a new story, written for today and alive to the realities of feminism, sexual freedom, prenups, and divorce? With devastating wit and an abiding understanding of and affection for his characters, Jeffrey Eugenides revives the motivating energies of the Novel, while creating a story so contemporary and fresh that it reads like the intimate journal of our own lives." Also see Michael Greenberg, "The Mania of Love," NYRB, November 24, 2011).).

Eleanor Henderson, Ten Thousand Saints: A Novel(New York: Ecco, 2011) (selected as one of "The 10 Books of 2011" by the NYT).

Ha Jin, Nanjing Requiem: A Novel (New York: Pantheon, 2001) (From the bookjacket: "In 1937, with the Japanese poised to invade Nanjing, Minnie Vautrin--an American missionary and the dean of Jinling Women's College--decides to remain at the school, convinced that her American citizenship will help her safeguard the welfare of the Chinese men and women who work there. She is painfully mistaken. In the aftermath of the invasion, the school becomes a refuge camp for more than ten thousand homeless women and children, and Vautrin must struggle, day after day, to intercede on behalf of the hapless victims. Even when order and civility are eventually restored, Vautrin remains deeply embattled, and she is haunted by the lives she could not save." Also, see Isabel Hilton, "In Harm's Way," NYT Book Review, Sunday, 10/23/2011.).

Denis Johnson, Train Dreams: A Novella (New York: Farrar, Straus & Giroux, 2011).

Stephen King, 11/22/63: A Novel (New York: Scribner, 2011) (Selected as one of "The 10 Best Books of 2011" by the NYT. Also, see Errol Morris, "'Save Kennedy'," NYT Book Review, Sunday, 11/13/2011.).

Haruki Murakami, 1Q84: A Novel, translated from the Japanese by Jay Rubin & Philip Gabriel (New York: Knopf, 2011) ("What kind of world will be there tomorrow? 'No one knows the answer to that,' Fuka-Eri said." Id. at 499. "Back when he was a lawyer it was the same. He couldn't remember having done anything that helped society. His biggest clients ran small and medium-sized financial firms and had ties to organized crime. Ushikawa created the most efficient ways to disperse their profits and made all the arrangements. Basically, it was money laundering. he was also involved in land sharking" When investors had their eyes on an area, he helped drive out longtime residents so they could knock down their houses and sell the remaining large lots to condo builders. Hugh amounts of money rolled in. The same type of people were involved in this as well. He also specialized in defending people brought up on tax evasion-charges. Most of the clients were suspicious characters that an ordinary lawyer would hesitate to have anything to do with. But as long as a client wanted him to represent him--and as long as a certain amount of money changed hands--Ushikawa never hesitated He was a skilled lawyer, with a decent track record, so he never hurt for business. . . ." "If he had followed the path that ordinary lawyers take, Ushikawa would probably have found it hard to earn a living. He had passed the bar exam not long after he left college, and h had become a lawyer, but he had no connections or influential backers. With his looks, no prestigious law firm would ever had hire him, so if he had stayed on a straight and narrow path he would have had very few clients. There can't be many people in the world who would go out of their way to hire a lawyer who looked as unappealing as Ushikawa, plus pay the high fees involved. The blame might lie with TV drama, which have conditioned people to expect lawyers to be both bright and attractive." Id. at 764-765. Also, see Kathryn Schulz, "Escape Route," NYT Book Review, Sunday, 11/6/2011.).

Peter Nadas, Parallel Stories: A Novel, translated from the Hungarian by Imre Goldstein (New York: Farrar, Straus & Giroux, 2005, 2011) (From the bookjacket: "In 1989, the year The Wall came down, a university student in Berlin on his morning run finds a corpse on a park bench and alert the authorities. This scene opens a novel of extraordinary scope and depth, a masterwork that traces the fate of myriad Europeans--Hungarians, Jews, German, Gypsies--across the treacherous years o the mid-twentieth century." "Three unusual men are at the heart of Parallel Stories: Hans von Wolkenstein, whose German mother is linked to secrets of fascist-Nazi collaboration during the 1940s; Agost Lippay Lehr, whose influential father has served Hungary's different political regimes for decades;and Andras Rott, who has his own dark record of mysterious activities abroad. The web of extended and interconnected dramas reaches from 1989 back to the Spring of 1939, when Europe trembled on the edge of war, and extends to the bestial times of 1944-45, when Budapest was besieged, the Final Solution devastated Hungary's Jews, and the war came to an end, and on to the cataclysmic Hungarian Revolution of October 1956. We follow these men from Berlin and Moscow to Switzerland and Holland, from the Mediterranean to the North Sea, and of course, from village to city in Hungary. The social and political circumstances of their lives may vary greatly, their sexual and spiritual longings may seem to each of them entirely unique, yet Peter Nadas's magnificent tapestry unveils uncanny reverberating parallels that link them across time and space." Also, see Benjamin Moser, "Kingdom of Shadows," NYT Book Review, Sunday, 11/27/2011.).

Edna O'Brien, Saints and Sinners: Stories (New York: Nay Bay Books, 2011).

Tea Obreht, The Tiger's Wife: A Novel (New York: Random House, 2011) (selected as one of "The Ten Best Books of 2011," by the NYT).

Steve Sem-Sandberg, The Emperor of Lies: A Novel, translated from the Swedish by Sara Death (New York: Farrar, Straus & Giroux, 2011) (From the bookjacket: "In February 1940, the Nazis established what would become the second-largest Jewish ghetto, in the Polish city of Lodz. The leader they appointed was Mordechai Chaim Rumkowski, a sixty-three-year-old Jewish businessman and orphanage director who would become the elusive, authoritarian power sustaining the ghetto's very existence." " A haunting, profoundly moving novel, The Emperor of Lies chronicles Rumkowski's monarchical rule over a quarter-million Jews for the next four and a half years. Driven by a titanic ambition, he sought to transform the ghetto into a productive industrial complex and strove to make it--and himself--indispensable to the Nazi regime. These compromises would have extraordinary consequences not only for Rumkowski but for everyone living in the ghetto." "Drawing on detailed records of life in Lodz, Steve- Sem-Sandberg, in a masterful feat of literary and moral imagination, captures the full panorama of human resilience and probes deeply into the nature of evil. Through the dramatic narrative, he asks the most difficult questions: Was Rumkowski a ruthless opportunist, an accessory to the Nazi regime motivated by a lust for power? Or was he a pragmatist who managed to save Jewish lives through his collaborationist policies? How did the inhabitants of the ghetto survive in such extreme circumstances?").

LIBERALISM IS HONEST ABOUT ITSELF, LIBERALS NOT SO MUCH.

2012-01-22T23:38:00.000Z

Alan Wolfe, The Future of Liberalism (New York: Knopf, 2009) ("The late eighteenth and early nineteenth centuries . . . were a time of intellectual as well as political intensity, producing one of the greatest collections of thinks and artists ever assembled in one twenty-five year period: Thomas Jefferson, James Madison, Tom Paine, Mary Wollstonecraft, Edmund Burke, Samuel Taylor Coleridge, William Wordsworth, Jeremy Bentham, Benjamin Constant, Carl von Clausewitz, Ludwig van Beethoven, Johann Wolfgang von Goethe, Immanuel Kant, and G. W. . Hegel--and those in just four countries. It is as if a century's worth of political, social, and intellectual transformation was compressed into the experience of one generation. We are more likely to recognize ourselves--our ideals, our dilemmas, our solutions--at the end of this brief period of political and intellectual ferment than at the beginning." "Today, we lack the genius of those who dominated those years, and our era, while exciting in its own right, also lacks the other's drama. But like defenders of the Enlightenment influenced by Voltaire ad Denis Diderot, we continue to debate whether reason and revelation are in conflict." Id. at 24. " Liberalism emerged as a response to events that were as destabilizing to established ways of thinking as they were exciting anticipations of new ways of living. Born in an era of flux, liberalism tell us not so much what to think but more about how to think. It is not a software program that can spit out the answers to whatever questions we may have, nor is it a set of abstract principles or an inchoate bundles of well-meaning platitudes. Liberalism rather, is best treated in its pre-political form. It is characterized by a set of dispositions toward the world that defines what kinds of creatures we are, establishing goals for us to reach, and lays down guidelines for the fairest ways to reach them. Seven such dispositions . . . strike me as especially important to the world in which we live. . . ." "A disposition to grow. . . ." "A sympathy for equality. . . . " "A preference for realism. . . ." "An inclination to deliberate. . . ." "A commitment to tolerance, even for those who do not tolerate you. . . ." "An appreciation of openness. . . ." "A taste for governance. . . ." Id. at 24-27. "Liberalism . . . does not have to pretend to stand on the side of democracy because, with the exception of its occasional flirtations with elitism, it has backed movements to extend suffrage and to increase racial and gender equality. It does not have to become enthusiastic for war because it views war as a failure in the quest for peace. It can stand up for freedom of speech and association because it really believes in them. It defends the concept of an open society because it truly detests those that are closed. It need not venerate an ugly past because it has a decided confidence about the future. It distrusts otherworldliness because it is grounded in this world. Liberalism does not proclaim that government is evil because it knows that it has been a force for good. It takes modernity as a fact of life, recognizing its gains, accepting its terms, and seeking to improve upon it." 'That is what liberalism does. What liberals do is another matter. All too often, liberal politicians lack the courage of liberalism. Especially in the United States, but elsewhere as well, liberals act as if conservatives are the natural governing party of the contemporary world and that they, the liberals, only get to take over when the right goes on a temporary leave of absence. Liberals read the books written by . . . conservative populists and conclude that they are more right than wrong. Yes, we really are too elitist, they say to themselves, To win people to our side we ought to pander to how people feel rather than appeal to what they think. Our greatest enemy really is ourselves; our ideas are too nuanced, our policies too demanding, our approach to politics too intellectual to win the majorities we need.. Far better to appear more conservative, more nationalistic, and even more romantic than we really are than to stand for what we have long been. Liberalism is honest about itself. Liberals, all too often, are not." "The challenge facing liberalism in the future, then, is not to beat out its rivals; because of modernity, it has already done that. Its biggest challenge is to get liberals to once against believe in liberalism. . . ." Id. at 287.).

Alan Wolfe, Marginalized in the Middle (Chicago & London: U. of Chicago Press, 1996).

Alan Wolfe, Return to Greatness: How America Lost Its Sense of Purpose and What It Needs to Do to Recover It (Princeton & Oxford: Princeton U. Press, 2005).

THE NEED FOR A DEMOCRACY PROTECTION MOVEMENT: TAKE POLITICAL MATTERS MORE SERIOUSLY

2012-01-22T23:35:00.000Z

Alan Wolfe, Does American Democracy Still Work? (New Haven & London: Yale U. Press, 2006) ("Information matters. . . . Political scientists such as Martin Gillens and Larry Bartels have gone to great length to demonstrate that lack of information does result in people having views they would not have if they were fully informed. Voting is inevitably cheapened when people do not know for what or for whom they are voting. It may be reassuring to realize that 40 percent of Americans can be induced to offer an opinion on whether the Public Affairs Act of 1975 should be repealed, but it raises serious questions about the existence of an informed public when we learn that there is not, and never was, such a thing as the Public Affairs Act of 1975." Id. at 29. "International norms of social justice, unlike domestic ones, never achieved anything like consensus in the United States, even in the years in which they were formulated. In January 1949 the president of the American Bar Association denounced the Universal Declaration of Human Rights on the grounds that it would 'promote state socialism, if not communism, throughout the world.' That kind of language became a staple of the isolationists and anticommunist sentiment that gripped the United States in the decades after World War II. Standing in the way of an American commitment to international norms of social justice, was the force of American nationalism. As Anatol Lieven has argued, Americans and Europeans came away learning different lessons from the catastrophe known as World War II. Europeans understood their twentieth-century as proof of the dangers into which nationalism could lead and wanted to see created a world order that would allow for international cooperation. Americans, by contrast, adopted the very nationalism that Europe was abandoning. In the wake of the twentieth century's experiences with totalitarianism, the United States could no longer afford isolationism. But its involvement with the world borrowed from the isolationist tradition the conviction that the world outside America's borders was hostile and corrupt. The United States can and should involve itself with foreign countries, this form of nationalism acknowledged, but only if the process was under American control." "When it comes to foreign policy, populism is nationalism's first cousin. The enemies of the American nation, populists tirelessly assert, are the elitists of the East Coast establishment. Whether they are depicted as wealthy Wall Street lawyers or dedicated communists hardly matters; they are what the conservative activist Phyllis Schlafly call the 'super sophisticates,' the cultured, semiaristocratic, globalists who love Europe more than they admire the United States. From a populistic perspective, human rights, global social justice, and humanitarian aid are exactly the kinds of issues that preoccupy elites; ordinary people themselves know that the only sure way to defend the country is by spending considerable sums on weapons and showing a willingness to use them. Such views are not always accurate; Americans actually responded positively to President Jimmy Carter's efforts to emphasize human rights, and they have been particularly interested in the fate of Christians in non-Christian countries and noncommunists in communist ones. According to the reputable Chicago Council of Foreign Affairs polls, moreover, Americans support even such controversial human rights measures as the International Criminal Courts. Id. at 154-155. Does American Still Work is a lengthy essay, both synthesis and analysis, on the ills of early twentieth-century-American democracy. From the bookjacket: "The past few decades have brought a shift on the nature of American democracy--an alarming shift that threatens such liberal democratic values as respect for pluralism, acceptance of the separation of powers, and recognition of the rights of opposition parties. . . . Alan Wolfe identifies the current political conditions that endanger the quality of our democracy. He describes how politics has changed, and he calls for a democracy protection movement designed to preserve our political traditions not unlike the environmental protection movement's efforts to safeguard the natural world." "Voters who know little about issues, leaders who bend rules with little fear of reprisal, and political parties that are losing the ability to mobilize citizens have all contributed to a worrisome new politics of democracy. . . [Wolfe] offers a brilliant analysis of how religion and morality have replaced political and economic self-interest as guiding principles, and how a dangerous populism promotes a radical form of elitism. Without laying blame on one party or ideology and without claiming that matters will improve with one party or the other in office, Wolfe instead suggests that Americans need to understand the danger their own indifference posses and take political matters more seriously." Occupy America!).

ANTICIPATING BLACK HISTORY MONTH: FICTION FROM THE HARLEM RENAISSANCE

2012-01-22T23:30:00.000Z

Rafia Zafar, ed., Harlem Renaissance: Five Novels of the 1920s (New York: Library of America, 2011) (includes Jean Toomer, Cane; Claude McKay, Home to Harlem; Nella Larsen, Quicksand; Jessie Redmon Fauset, Plum Bun: A Novel Without a Moral; and Wallace Thurman, The Blacker the Berry: A Novel of Negro Life).

Rafia Zafar, ed., Harlem Renaissance: Four Novels of the 19300s (New York: Library of America, 2011) (includes Langston Hughes, Not Without Laughter; George Schuyler, Black No More: Being an Account of the Strange and Wonderful Workings of Science in the Land of the Free, A.D. 1933-1940; Rudolph Fisher, The Conjure-Man Dies: A Mystery Tale of Dark Harlem; and Arna Bontemps, Black Thunder).

" 'HAVE A NICE DAY AT THE OFFICE, HON?' "

2012-01-22T23:29:00.000Z

Karl Marlantes, What It Is Like to Go to War (New York: Atlantic Monthly Press, 2011) ("It is bad enough that we send our youth off to fight our wars ill prepared for the spiritual and psychological consequences of entering combat. Add to this the fact that combat is becoming increasingly intermingled with the ordinary civilian world. With cell phones, Facebook, Twitter, air travel, and remote-control weaponry, the battlefield is less clearly defined and the bloody consequences of what modern weapons do can be completely masked. Consider the bomber crews that fly from the United States and back to bomb Iraq or Libya, telling their spouses and kids they'll be gone a little longer than usual that day; or the young woman pushing a button to launch a cruise missile from a naval vessel on a serene sea hundreds of miles from the 'target,' known to his mother as Alim; or the pilots doing nine-to-five jobs at computers consoles in Nevada killing people in Iraq and Afghanistan with drones and commuting to and from their homes like any other commuters. Imagine the psychic split that must ensue from bringing in death and destruction from the sky on a group of terrorists--young men who have mothers and a misplace idealism that has led them into horrible criminal acts, but nevertheless young and brave men--and then driving home from the base to dinner with the spouse and kids. 'Have a nice day at the office, hon?' " Id. at 18-19. Remember, if the line between a "warrior's" being at war or in combat is blurred, then the line between a "civilian's" being at peace and not in combat is also blurred. Civilian targets and military targets are blurred. We are all plausibly legitimate military targets. Are we not?).

OCCUPY AMERICA: THE 0.1 PERCENT VERSUS THE 99.9 PERCENT

2012-01-22T23:28:00.000Z

David Cay Johnston, Free Lunch: How the Wealthiest Americans Enrich Themselves at Government Expense (And Stick You With the Bill (New York: Portfolio, 2007) ("Three principles can help guide us to make wise decisions about our economic policies. They epitomize the fact that rules define a civilization: "[1] A society that does not embrace a common purpose for its existence has no standard against which to judge itself, making it vulnerable to the corruptions of men who chafe at the limits of law. [2] A society that does not address the needs of its members, especially the vulnerable, weakens itself from within while wasting its most valuable resources, the minds and talents of all its citizens. [3] A society that takes from the many to give to the few undermines its moral basis and must in the end collapse." Id. at 287. From the bookjacket: "How does a strong and growing economy lend itself to job uncertainty, debt, bankruptcy, and economic fear for a vast number of Americans? Free Lunch provides answers to this great economic mystery of our time, revealing how today's government policies and spending reach deep into the wallets of the many for the benefit of the wealthy few." "Johnston cuts through the official version of events and shows how under the guise of deregulation, a whole new set of regulations quietly went into effect--regulations that thwart competition, depress wages, and reward misconduct. From how George W. Bush got rich off a tax increases to a $100 million taxpayer gift to Warren Buffett, Johnston puts a face on all of the dirty little tricks that business and government pull. A lot of people appear to be getting free lunches--but of course there;s no such thing as a free lunch, and someone (you, the taxpayer) is picking up the bill. . . " "Free Lunch shows how the lobbyists and lawyers representing the most powerful 0.1 percent of Americans manipulated our government at the expense of the 99.9 percent." Occupy America!).

David Cay Johnston, Perfectly Legal: The Covert Campaign to Rig Our Tax System to Benefit the Super Rich--and Cheat Everybody Else (New York: Portfolio, 2003).

IS AMERICAN RELIGIOSITY THE ACHILLES HEEL OF THE AMERICAN REPUBLIC?

2012-01-22T23:26:00.000Z

Denis Lacorne, Religion in America: A Political History, translated from the French by George Holoch, with a Foreword by Tony Judt (New York: Columbia U. Press, 2011) ("There is general agreement that the United States is the most religious of advanced Western democracies. The level of religious observance in the country is unusually high and political language is imbued with religious values and religious references. . . . And yet this reality is the source of major misunderstandings, cliches, and misperceptions between the United States and other Western nations regarding the proper role of religion in a modern democracy." "Nowhere is this more evident than in France, where contemporary writers . . . are particularly disturbed by what they see on the American political scene: the proliferation of religious slogans and allegories; the frequency of worship services prayer meetings, and thanksgiving celebrations organized by public authorities, the inordinate use of a Manichean rhetoric opposing of Good tot he forces of Evil. Such belief that the United States is an aggressively and apologetically Christian nation, Its political creed, it is argued, has remained fundamentally Anglo-Protestant, despite an increasing influx of Asian and Latino immigrants whose cultural values are by definition outside the ambit of Anglo-Protestantism." Based on these assumptions, numerous French observers have concluded that there is no escape form religion in American politics and that, despite its well-established republican framework, American democracy is less advanced because it has not completed its process of secularization, The French, they argue, are more authentically 'republican' than the Americans, because they have enshrined a secular ideal in the first article of their constitution and have established a long-lasting separation between church and state." "Against the background of these widely accepted continental cliches, I have attempted to do two things in this book. The first is to trace the broad outlines of the rile of religion in the formation of a distinct American national identity. The second is toe examine against this background, how key French thinkers, from Voltaire and Tocqueville to Sartre and Bernard-Henri levy, have tried to explain the place and significance of religion in American politics." Id. at xv-xvi. Perhaps. if American wants to be a moral and political leader, rather than a mere military or economic leader, on the global stage, American needs to get past religion and become more secular. "By 'secularism,' I do not simply mean the absence of religious belief, which is fairly rare in America. I refer to a larger phenomenon, a gradual 'disenchantment of the world' in Weber's sense--that is, a gradual rationalization of public life, accompanied by a noticeable disentanglement of religious and lay natters. In that respect, American secularism preceded the French process of laicization and served as a model." Id. at 147. Unfortunately, there is an a competing American tradition that causes us to backslide away from our secular, and more enlightened, tradition.).

THE BIASES OF INTUITION

2012-01-22T23:22:00.000Z

Daniel Kahneman, Thinking, Fast and Slow (New York: Farrar, Straus & Giroux, 2011) ("We have all heard such stories of expert intuition: the chess master who walks past a street game and announces 'White mates in three' without stopping, or the physician who makes a complex diagnosis after a single glance at a patient. Expert intuition strikes us as magical, but it is not. Indeed, each of us performs feats of intuitive expertise many times each day. Most of us are pitch-perfect in detecting anger in the first word of a telephone call, recognize as we enter a room that we were the subject of the conversation, and quickly react to subtle signs that the driver of the car in the next lane is dangerous. Our everyday intuitive abilities are no less marvelous than the striking insights of an experience firefighter or physician--only more common." "The psychology if accurate intuition involves no magic. Perhaps the best short statement of it is by the great Herbert Simon, who studied chess masters and showed that after thousands of hours of practice they come to see the pieces on the board differently from the rest of us. You can feel Simon's impatience with the mythologizing of expert intuition when he write: 'The situation has provided a cue; this cue has given the expert access to information stored in memory, and the information provides the answer. Intuition is nothing more and nothing less than recognition.' " Id. at 11. From the book jacket: "Kahneman takes us on a groundbreaking tour of the mind and explains the two systems that drive the way we think. System 1 is fast, intuitive, and emotional; System 2 is slower more deliberative, and more logical. Kahneman exposes the extraordinary capabilities--and also the faults and biases--of fast thinking, and reveals the pervasive influence of intuitive impressions on our thoughts and behavior. The impact of loss aversion and overconfidence on corporate strategies, the difficulties of predicting what will make us happy in the future, the challenges of properly framing risks at work and at home, the profound effect of cognitive biases on everything from playing the stock market to planning the next vacation--each of these can be understood only by knowing how the two systems shape our judgments and decisions." Whenever I am in a meeting of more than three people, (for example, law faculty meetings), I always find myself wishing that the meeting was conducted under Robert's Rules of Order, or at least some modified version thereof, because of the inefficiency, disorder, and waste of time that occurs. Just people able to rule as 'out of order' the raising of matters not related to the issue under discussion would be a blessing. That will not happening because, I have come to realize, such meetings are not about conducting business, not about deciding anything, and not really about providing substantive information. Rather the meetings are about making believe that the members of the meeting are, individually and collectively, doing something important. It is all drama, and usually melodrama. That said, after reading Thinking, Fast and Slow, I now wish that there were a different sort of parliamentarian at meetings, one who, instead of policing the rules of order, policed biases of intuitions. I think this would result in better meetings or, better yet, fewer, shorter, or no meetings. If participants at meetings could be routinely called out on their biases of intuition, they would be less inclined to speak without first thinking. And, more important, I suspect that they would be more inclined to think slow before speaking rather than think fast before speaking. Also see Jim Holt, "Two Brains Running," NYT Book Review, Sunday, 11/27/2011.).

REREADING GEORGE ELIOT

2012-01-22T23:20:00.000Z

George Eliot, Adam Bede (1859) ("Adam, you perceive, was by no means a marvellous man, nor, properly speaking a genius, yet I will not pretend that his was an ordinary character among the workmen; and it would not be at all a safe conclusion that the next best man you may happen to see with a basket of tools over his shoulder ad a paper cap on his head has the strong conscience and the strong sense, the blended susceptibility and self-command, of our friend Adam. He was not an average man. Yet such men as he are reared here and there in every generation of our peasant artisans--with an inheritance of affections nurtured by a simple family life of common need and common industry, and an inheritance of faculties trained in skilful courageous labour; they make their way upward, rarely as geniuses, most commonly as painstaking honest men, with the skill and conscience to do well the tasks that lie before them. Their lives have no discernible echo beyond the neighborhood where they dwelt, but you are almost sure to find there some good piece of road, some building, some application of mineral produce, some improvement in farming practice, some reform of parish abuses, with which their names are associated by one or two generations after them. Their employers were richer for them, the work of their hands has worn well, and the work of their brains has guided well the hands of other men. They went about in their youth in flannel or paper caps, in coats black with coal-dust or streaked with lime and red paint; in old age their white hairs are seen in a place of honour at church and at market, and they tell their well-dressed sons and daughters, seated round the bright hearth on winter evenings, how pleased they were when they first earned their twopence a day. Others there are who die poor, and never put off the workman's coat on week-days: they have not had the art of getting rich; but they are men of trust, and when they die before the work is all out of them, it is as if some main screw had got loose in a machine; the master who employed them says, 'Where shall I find their like?' " Id. at 204.).

George Eliot, The Mill on the Floss (1860) ("[Mr. Tulliver] was about to get down, and lead his horse through the damp dirt of the hollow farmyard, shadowed drearily by the large half-timbered buildings, up to the long line of tumble-down dwelling-house standing on a raised causeway, but the timely appearance of a cowboy saved him that frustration of a plan he had determined on--namely, not to get down from his horse during this visit. If a man means to be hard, let him keep in his saddle and with the command of a distant horizon. . . ." Id. at 82.).

George Eliot, Silas Marner (1867).

TYRANNY

2012-01-22T23:18:00.001Z

Eli Sagan, At the Dawn of Tyranny: The Origins of Individuals, Political Oppression, and the State (New York: Knopf, 1985) ("Tyranny is an abuse of hierarchy. . . . Social action in a society of any degree of complexity requires leadership positions, which are hierarchical by nature. There is nothing in the nature of hierarchy that inevitably causes it to degenerate into tyranny, although hat has overwhelmingly been the case in all societies since the primitive." "Political oppression is easier when there is a racial or cultural distinction between the masters and the oppressed. Tyranny will be harsher in a state established through conquest of one people by another than in a state where all share the same language, culture, and history. But such differences are not necessary for tyranny. . . . " "The forms of tyranny, once established, have remained remarkably unvaried over thousands of years. Capitalist enterprise, with landless free workers laboring in productive units not owned by themselves, was the first radically new form of tyranny since complex society. With that exception it was all there from the beginning." Id. at 277-278. "All martyrs give the sense of having bee betrayed. They act as if they were somehow promised justice but received instead a violation of their rights, as if somewhere they were promised love and received death. They are intent on converting those who hold power not only into something evil but into betrayers: those who promise benevolence and delivery tyranny. " Id. at 47 "Terrorists are not ordinary criminals, although they do most of the things criminal do, because they claim to act in the interest of an ideal. And the rhetoric of their idealism speaks often of great love for others. If the stated goal of terrorist activity is the independence of a homeland or the establishment of an egalitarian society, the sense of brotherhood and sisterhood with large numbers of people is a proclaimed ideal. . . . And yet the terrorist cannot live without killing others, or, at least, thinking about killing others. The rage is enormous. And for many terrorists, the terrorist life becomes a means to suicide: through prison or execution or mishap with their own bombs or causalities caused by armed attack. Very few live to be old." Id. at 47-48. "We have reached the end of one the the world's greatest eras of individuals. What was at its beginning a progressive force has ceased to serve human kind. We cry out for the restoration of the sense of community. We long to live, once again, in a society that consciously moral people could love. We have grown lonely and frightened out there all by ourselves. Our task is to insist that the next turn will keep us ascending: that individuation, and the freedom it carries with it, are not to be rejected, but negated in a dialectical sense--incorporated and carried with us to enhance the restoration of the communal ideal." Id. at 276. From the bookjacket: "In this book . . . Eli Sagan looks for the origins of political tyranny that has haunted human society through the centuries. He does this by exploring three societies--Hawaii, Tahiti, and Buganda--whose ancient customs and institutions still prevailed when they were first encountered by Western travelers and missionaries in the eighteenth and nineteenth centuries, a phenomenon that enables us to see at close hand the world of our own ancient past.").

MISCELLANEOUS READS, PROBABLY OF LITTLE INTEREST TO (MOST) LAW STUDENTS

2012-01-22T23:18:00.000Z

Samuel Beckett, The Letters of Samuel Beckett, Volume II: 1941-1956, edited by George Craig, Martha Dow Fehsenfeld, Dan Gunn & Lois More Overbeck (Cambridge: Cambridge U. Press, 2011) (See Denis Donoghue, "Midgame," NYT Book Review, Sunday, 10/30/2011.).

Harold Bloom, The Shadow of a Great Rock: A Literary Appreciation of the King James Bible (New Haven & London: Yale U. Press, 2011) ("For those to whom the KJM is the Truth, rock of their faith, a literary appreciation is redundant. I write however for the common reader, who can be moved by the Bible's eloquence and beauty. Originally the culmination of one strand of Renaissance English culture, the KJB became a basic source of American literature: Walt Whitman, Herman Melville, Emily Dickinson are its children, and so are William Faulkner, Ernest Hemingway, Cormac McCarthy. The KJM and Shakespeare fuse into a style of language that enabled the emergence of Leaves of Grass, Moby-Dick, As I Lay Dying, Blood Meridian. Whitman's verse and Hemingway's prose alike stem from the KJB." "It should in time seem odd to speak of 'the Bible as literature' as to say 'Shakespeare as literature.' Shakespeare is literature, as are the Bible, Homer, Dante, Cervantes, Montaigne, Milton, Proust, Joyce. Literature, in this high sense, is the Blessing: it represents the fullness of life and can give more life If you read the KJB as revelation then no one can gainsay you. I myself address the common reader who quests for more life." Id. at 23.).

Ian Brown, The Boy in the Moon (New York: St. Martin's Press, 2011) (selected by the editors of NYT Book Review as one of "The 10 Best Books of 2011).

Sarah Foot, AEthelstan: The First King of England (Yale English Monarchs) (New Haven & London: Yale U. Press, 2011) ("Collectively, his later law codes suggest that AEthelstan had clear ideas about what he wanted to achieve for the better governance of his realm through legislation, specifically which social problems he sought to ameliorate. In these texts, we see the King tackling directly issues that arose from the recent unification of heterogeneous peoples and devising strategies to repair the ills left in parts of the country following decades of warfare. AEthelstan may well have had the councils of Charlemagne and his successors in mind as models. To the kings mind, theft constituted the greatest single problem and represented the most significant manifestation of social breakdown across the realm. He legislated repeatedly--even disproportionately--in his law codes for the prevention of thievery, making this topic one of the most striking feature so his legal pronouncements: together, his codes contain one third of all the occurrences of the noun peof (thief) in the entire corpus of Anglo-Saxon law." Id. at 140.).

Christopher Hitchens, Arguably: Essays by Christopher Hitchens (New York: Twelve, 2011) (selected by the editors of NYT Book Review as one of "The 10 Best Books of 2011).

Fredric Jameson, Representing Capital: A Commentary on Volume One (London & New York: Verso, 2011).

Jonathan Lethem, The Ecstasy of Influence: Nonfiction, Etc. (New York: Doubleday, 2011) (See Robert Christgau, "Enthusiasms," NYT Book Review, Sunday, 11/27/20011.).

Gail Levin, Lee Krasner: A Biography (New York: Morrow, 2011).

David Michaelis, Schulz and Peanuts: A Biography (New York: Harper, 2007) (In the 1960s, "[a]s doubt and distrust crept into people's lives, Schulz's plain commentaries on the comics pages and in Determined Productions' small, square hardcovers set him up for a role he never intended or wanted. 'I'm not a philosopher.' he insisted, sometimes adding, 'I'm not that well-educated.' But the country had just reached the end of an era in which it considered itself the land that boasted the world's most distinguished philosophers. For thirty years, every high school principal read professor John Dewey, or thought he ought to, and every college president salted his speeches with the aphorisms of George Santayana. ("Those who cannot remember the past are condemned to repeat it') and Oliver Wendell Holmes, Jr. ('Taxes are what we pay for civilized society'). But the era of Professor Santayana, Justice Holmes, and Dr. Dewey was closing, and middlebrow culture reassigned the role of philosopher. Henceforth, the general public would take philosophy in capsule form through novelists (Hemingway, Vonnegut), journalists (Kempton, Baker), social scientists (McLuhan, Galbraith), and cartoonists (Capp, Kelly, Schulz), although Al Capp and Walt Kelly were drawing allegory that tartly commented on politics and society, and Schulz was creating the kind of myth in which everyone could find his or her own story: 'Myths and fables of deep American ordinariness,' as the writer Samuel Hynes construed Peanuts." Id. at 394. From the bookjacket: "It is the most American of stories: How a barber's son grew up from modest beginnings to realize his dream of creating a newspaper comic strip. How he daringly chose themes never before attempted in mainstream cartoons--loneliness, isolation, melancholy, the unending search for love--always lightening the darker side with laughter and mingling the old-fashioned sweetness of childhood with a very adult and modern awareness of the bitterness of life. And, how using a lightheaded, loving touch, a crow-quill pen dipped in ink, and a cast of memorable characters, he portrayed the struggles that come with being awkward, imperfect, human.").

Czeslaw Milosz, To Begin Where I Am: Selected Essays, edited and with an introduction by Bogdana Carpenter & Madeline G. Levine (New York: Farrar, Strauss & Giroux, 2001).

Steven Naifeh & Gregory White Smith, Jackson Pollock: An American Saga (New York: Clarkson N. Potter, 1989).

Steven Naifeh & Gregory White Smith, Van Gogh: The Life (New York: Random House, 2011) (See Deborah Solomon, "Splendor in the Stars," NYT Book Review, Sunday, 11/27/2011.).

Stanislao G. Pugliese, Bitter Spting: A Life of Ignazio Silone (New York: Farrar, Straus & Giroux, 2009).

Corey Robin, The Reactionary Mind: Conservatism From Edmund Burke to Sarah Palin (New York & Oxford: Oxford U. Press, 2011) ("Since the nineteenth century, it has been the task of the left to hold up to liberal civilization a mirror of its highest values and to say, 'You do not look like this.' You claim to believe in the rights of man, but it is only the rights of property you uphold. You claim to stand for freedom, but it is only the freedom of the strong to dominate the weak. If you wish to live up to your principles, you must give way to their demiurge. Allow the dispossessed to assume power, and the ideal will be made real, the metaphor will be made material." Id. at 95).

Charles J. Shields, And So It Goes: Kurt Vonnegut, A Life (New York: Henry Holt, 2011) (See Christopher Buckley, "How It Went," NYT Book Review, Sunday, 11/27/2011.).

John Updike, Higher Gossip: Essays and Criticism (New York: Knopf, 2011) (From 'In Defense of the Amateur Reader: Remarks upon Accepting the National Book Critics Circle Award in Criticism, for Hugging the Shore, in January 1984.': "A man who reads a book for no particular profit becomes, while he reads, a gentleman, a man of leisure, a dandy of a sort, one would hate to see this dandyman entirely squelched, whether by the analytical mills of the universities or by the scarcely less grim purveying of animated information and automated thrills reflected by the best-seller lists. An occasional sport, a White Hotel or Name of the Rose, does show up in these lists to remind us that a certain whimsy, an ineluctable hankering for the elegant and unclassifiable, does persist in the soul of that rough beast, the book-buying public; but in general the list is all to predictable, and the industry as a whole is all too dependent upon the list, This potentially mirthless situation we self-appointed critics--and who will appoint us if not ourselves?--can ameliorate by being, within measure, self-amusing, by indulging our own tastes and pursuing our own educations, by seeking out the underpublished wallflower on the edge of the dance floor and giving here a twirl, by reminding ourselves that literary delights are rarefied delights, that today's blockbuster is tomorrow's insulation, that books are at best beacon in the darkness but at second best a holiday that lasts and lasts." Id. at 423-424.).

John Updike, More Matter: Essays and Criticism (New York: Knopf, 1999).

Christa Wolf, The Author's Dimension: Selected Essays, edited by Alexander Stephan, translated from the German by Jan Van Heurck, and with an introduction by Grace Paley (New York; Farrar, Straus & Giroux, 1993) (From "Contribution to the Second Bitterfeld Conference": "I believe that a trapeze artist has to work with a rope, a safety belt, and a net. But a writer, in whatever field, cannot work with net. He simply has to accept a little risk, tempered by responsibility." Id. at 3, 10. I think this is why so much writing by legal academics leaves me cold. So much of it is written with too much caution, not wanting to risk offending the hierarchy. And, written with a failure to take responsibility in the take of advancing ideas. From "The Shadow of a Dream: A Sketch of Karoline von Gunderrode": "Gunderrode's generation, like all who live in transitional periods, had to create new patterns which later generations would use as models, stencils, warning slogans, in literature as in life. These people who were young in 1800 were made an example from which others might learn, or fail to learn. For them, the existing examples did not apply. . . . " "They were few in number. Their forerunners, the ideologists and protagonists of the French Revolution, took as their models the ancient Romans, used-up, misinterpreted attitudes: they deceived themselves so as to be able to act. The later generation shed their togas along with their sense of mission, their heroes' roles along with their self-deception. In the mirror they met their own faces, un-made-up and unasked-for. These who were young in 1800 could not arrange to be born a later year, nor could they think the thoughts or live the lives of an older generation. They could not deny the particular features which determined them, the grueling features The bourgeois society which i the end spread to the German side o the Rhine without need of revolution admittedly gave rise to no starkly new economic and social order, but did bring a pervasive petit-bourgeois morality based on the suppression of everything uncompromising and original. It was an unequal struggle. A small group if intellectuals with no backup force (as happened so often in German history form the Peasants' War onward)---supporting an out-of-favor ideal with a sensibility attuned to nuances and a headstrong desire to put their newly developed skills to use--ran head-on into the narrowness of an underdeveloped class characterized by subservience instead of self-esteem, and which had absorbed nothing of the bourgeois catechism except the commandment: Get rich! This petit-bourgeois class tried to harmonize the boundless instinct for profit with the Lutheran-Calvinist virtue of industry, thrift, and discipline; the poverty of their lives blinded them to their real needs, while making them hypersensitive to those who would not or could not be made to keep silent. Thus the little group of intellectuals became strangers in their own land, forerunners whom no one followed, enthusiasts who evoked no response, callers without an echo. And those among them who could not make the timely compromise became victims." "Don't think they did not know it. . . . " Id. at 131, 133-134.).

FOOD FOR THOUGHT FOR ASPIRING YOUNG LAWYERS

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Thubten Chodron, Buddhism for Beginners (Ithaca: Snow Lion, 2001) ("How can we pursue a career without attachment to reputation and wealth? How can we do business and also be ethical?" "If we deeply contemplate the transient and unpredictable nature of wealth, reputation, and worldly success, the belief that they'll bring us lasting happiness will fade. Then we can start to change our motivation for working. We can look at our work as service to society and as an opportunity to learn more about ourselves by interacting with others. Our work will thus become an occasion to practice the teachings that we mediate on. In this way, patience and cherishing others will not be traits we cultivate, but qualities we develop in daily life." "If we diminish our attachment, living ethically will be easier. As our priorities change, we will be fair in our business dealings and will not backbite to climb the corporate ladder. . . ." Id. at 88-89. Is what law schools and the legal profession defined as "being a successful lawyer" really meaningful? Is it a successful life? Might you want to consider what is the better path for you as a lawyer, and not let law schools and the legal profession define for you what a successful life as a lawyer is?).

DOCUMENTING AMERICA'S PROCLIVITY TO TORTURE

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Robert M. Pallitto, ed., Torture and State Violence in the United States: A Short Documentary History (Baltimore; Johns Hopkins U. Press, 2011) ("Judith Shklar believed that for, for liberals, 'cruelty is the worst thing we do.' Yet state-enacted cruelty appears all too often in the record of U.S. history. If torture stands as the most extreme form of cruelty and torture is documented throughout the nation's history, we may well question the status of the liberal commitment to avoid cruelty. This book examines the relationship--indeed contradiction--between the liberal-democratic vision enshrined in the U.S. Constitution and the state's support and use of torture and other state violence in the name of national security and freedom. To explore this subject, I draw on historical examples and documents far older than the 'war on terror' and even the Cold War, including some that date back to the early years of the republic, and trace the attitudes about the treatment of the actual bodies of torture victims that have developed against the background of a purportedly liberal political order." Id. at 1. "The documents reproduced in this book show that torture and associated practices of state violence have continued uninterrupted in the United States from colonial times through the present. Any claim that torture has decreased during a given period is true, at most, in relative terms. To be sure, slavery, 'settlement' of the frontier, and world war, among other events, provided increased opportunities for torture, but there is always one or more segments of the population facing such treatment no mater what large-scale conflicts are occurring. Thus, commentators . . . , who see liberal principles guiding U.S. political development throughout the nation's history, must explain the co-presence of liberal ideas and striking illiberal practices. . . . Id. at 255.).

MUTUAL MISUNDERSTANDING

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Jose, Saramago, Cain: A Novel, translated from the Portuguese by Margaret Jull Costa (Boston & New York: Houghton Mifflin Harcourt, 2011) ("The history of mankind is the history of our misunderstanding with god, for he doesn't understand us, and we don't understand him." Id. at 78. Also, see, Robert Pinsky, "Adam's Son," NYT Book Review, Sunday, 10/23/2011.).

THE ROAD TO APPOMATTOX COURT HOUSE

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Bruce Catton, The Army of the Potomac: Mr. Lincoln's Army (Garden City, NY: Doubleday, 1951) ("The point that is so easy to overlook nowadays is that the men of the 1860s were living in the center of a fiery furnace. It was not a tidy, clear-cut war against some foreign nation that was being waged. It was a civil war, a war not between men of two nations but between men of two beliefs, two philosophies, two ways of considering human society and its structure and purpose. The opposing beliefs were not sharply defined and clear so that no man could mistake which camp he belonged in. On the contrary, there were a dozen gradations of belief leading from one to the other, and a man might belong to one camp on one issue and in the other camp on another; and the very word 'loyalty' might mean loyalty to a flag, to a cause, or to a belief in some particular social and political theory, and 'treason' might mean disloyalty to any of these. Indeed, the war was peculiarly and very bitterly a war of the tragically modern kind, in which loyalties and disloyalties do not follow the old patterns even though those patterns may be the only ones men can use when they try to formulate their loyalty. And so that generation was deprived of the one element that is essential to the operation of a free society--the ability to assume, in the absence of good proof to the contrary, that men in public life are generally decent, honorable, and loyal. Because that element was lacking, the wisest man could be reasonable with only part of his mind; a certain area had to be given over to the emotions which were all the more mad and overpowering because he shared them with everyone else." "Hence the Civil War was fought and directed in an air of outright melodrama. . . ." Id. at 97-98.).

Bruce Catton, The Army of the Potomac: Glory Road (Garden City, NY: Doubleday, 1952) ("And here in the middle of it all was the 24th Michigan, with a county judge for a colonel and a county sheriff for lieutenant colonel and all the line officers carrying presentation swords; the regiment that had once been ostracized because its valor was unproven. Since Fredericksburg the regiment had been accepted, but in the unfathomable economics of army life the men seen to have felt that they stilled owed the rest of the brigade something, and here on Seminary Ridge the bill had come up for payment. Three times Colonel Morrow sent back word that the position was untenable, and each time General Wadsworth grimly ordered him to hold on anyway. Some of the survivors remembered forming line of battle six times that hot afternoon, with the rank battle fog lying low under the trees and unappeasable enemies coming in from all directions at once. Four color-bearers were killed, and the regiment sagged toward the rear, and Colonel Morrow ordered the fifth color-bearer to jab the flagstaff in the ground and stand aside it for a rally. The man was killed before he could obey, Morrow himself took up the flag and waved it, a private ran up and took it away form him, muttering that it wasn't up to the colonel to carry the colors, and then this private was killed and another man took up the staff. Then he too was shot, and Morrow got the flag after all, after which a bullet creased his skull and he himself went down." Id. at 279-280.).

Bruce Catton, The Army of the Potomac: A Stillness at Appomattox (Garden City, NY: Doubleday, 1953) ("Yet the casualty lists did not tell the hole story, which indeed was a good deal more complex than most of the participants were able to understand." "Since May 4 [1864] everything that had happened had been part of one continuous battle, a battle three months long, with advance and retreat and triumph and disaster all taking place together, so that words like victory and defeat had lost their meaning. All that had gone before was no more than prelude. The nation itself had been heated to an unimaginable pitch by three years of war and now it had been put on the anvil and the hammer was remorselessly coming down, stroke after clanging stroke, beating a glowing metal into a different shape." "There would be change and the war was bringing it, even though it might be that the war could not bring victory. The war had taken on a new magnitude, and perhaps it was no longer the kind of struggle anybody could win. But it was moving inexorably toward its end, and when it ended many things would end with it, in the South and in the North as well. Some of these were things that ought to end because they shackled men to the past, and some of them were fit to be laid away in the shadowland of dreams that are remembered forever, but in any case they were being brought to an end. After that there could be a new beginning." Id. at 253.).

THE CHOICE OF THE LAW AS A PROFESSION

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George Elliot, Daniel Deronda (1876) (" 'You don't repent the choice of the law as a profession, Rex?' said his father. 'There is no profession I would choose before it,' said Rex. 'I should l like to end my life as a first-rate judge, and help to draw up a code. I reverse the famous dictum--I should say, "Give me something to do with the making the laws, and let who will make the songs." 'You will have to stow in an immense amount of rubbish, I suppose--that's the worst of it,' said the Rector. 'I don't see that law-rubbish is worse than any other sort. It is not so bad as the rubbishy literature that people choke their minds with. It doesn't make one so dull. Our wittiest men have often been lawyers. Any orderly way of looking at things as cases and evidence seems to me better than a perpetual wash of odds and ends bearing on nothing in particular. And then, from a higher point of view, the foundations and the growth of law makes the most interesting aspects of philosophy and history. Of course there is a good deal that is troublesome, drudging, perhaps exasperating. But the great prizes in life can't be won easily--I see that.' " Id. at 613-614.).

George Eliot, Middlemarch (1871-1872).

ANTICIPATING CHARLES JOHN HUFFHAM DICKENS'S 200th BIRTHDAY

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Dickens, Charles, The Oxford Illustrated Dickens (Oxford & New York: Oxford U. Press, 1951, 21 vol):

1. The Pickwick Papers: The Posthumous Papers of the Pickwick Club, with an Introduction by Bernard Darwin ("Scattered about,in various holes and corners of the Temple, are certain dark and dirty chambers, in and out of which, all the morning in Vacation, and half the evening too in Term time, there may be seen constantly hurrying with bundles of paper under their arms, and protruding from their pockets, an almost uninterrupted succession of Lawyers' Clerks. There are several grades of Lawyers' Clerks. There is the Articled Clerk,, who has paid a premium, and is an attorney in perspective, who runs a tailor's bill, receives invitations to parties, knows a family in Gower Street, and another in Tavistock Square: who goes out of town every Long Vacation to see his father, who keeps live horses innumerable; and who is, in short, the very aristocratic of clerks. There is the salaried clerk--out of door, or in the door, as the case may be--who devotes the major part of his thirty shillings a week to his personal pleasure and adornment, repairs half-price to the Adelphi Theatre at least three times a week, dissipates majestically at the cider cellars afterwards, and is a dirty caricature of the fashion which expired six months ago. There is the middle-aged copying clerk, with a large family, who is always shabby, and often drunk. And there are the office lads in their first surtouts, who feel a befitting contempt for boys at day-schools: club as they go home at night, for saveloys and porter: and think there's nothing like 'life.' There are varieties of the genus, too numerous to recapitulate, but however numerous they may be, they are all to be seen, at certain regulated business hours, hurrying to and from the places we have just mentioned." "These sequestered nooks are the public offices of the legal profession, where writs are issued, judgments signed, declarations filed, and numerous other ingenious machines put in motion for the torture and torment of His Majesty's liege subject, and the comfort an emolument of the practitioners of the law." Id. at 418.).

2. The Personal History of David Copperfield, with an Introduction by R. H. Malden ("I asked Mr. Spenlow what he considered the best sort of professional business? He replied, that a good case of a disputed will, where there was a neat little estate of thirty or forty thousand pounds, was, perhaps, the best of all. In such a case, he said, not only were there very pretty pickings, in the way of arguments at every stage of the proceedings, and mountains upon mountains of evidence on interrogatory and counter-interrogatory (to say nothing of an appeal lying, first to the Delegates, and then to the Lords); but, the costs being pretty sure to come out of the estate at last, both sides went at it in a lively and spirited manner, and expense was no consideration. Then, he launched into a general eulogium on the Commons. What was to be particularly admired (he said) in the Commons, was its compactness. It was the most conveniently organised place in the world. It was the complete idea of snugness. It lay in a nut-shell. For example: You brought a divorce case, or a restitution case, in the Consistory. Very good. You tried it in the Consistory. You made a quiet little round game of it, among a family group, and you played it out at leisure. Suppose you were not satisfied with the Consistory, what did you do then? Why, you went into the Arches. What was the Arches? The same court, in the same room, with the same bar, and the same practitioners, but another judge, for there the Consistory judge could plead any court-day as an advocate. Well, you played your round game out again, Still you were not satisfied. Very good. What did you do then? Why, you went to the Delegates. Who were the Delegates? Why, the Ecclesiastical De3legates were the advocates without any business, who had looked on at the round game when it was playing in both courts, and had seen the cards shuffled, and cut, and played, and had talked to all the players about it, and now came fresh , as judges, to settle the matter to the satisfaction of everybody! Discontented people might talk corruption in the Commons, closeness in the Commons, and the necessity of reforming the Commons, said Mr. Spenlow solemnly, in conclusion; but when the price of wheat per bushel had been highest, the Commons had been busiest; and a man might lay his hand upon his heart, and say this to the whole world,--'Touch the Commons, and down with the country?'" Id. at 388-389).

3. Bleak House, with an Introduction by Sir Osbert Sitwell ("Never can there come fog too thick, never can there come mud and mire too deep, to assort with the groping and floundering condition which this High Court of Chancery, most pestilent of hoary sinners, holds, his day, in the sight of heaven and earth." "On such an afternoon, if ever, the Lord High Chancellor ought to be sitting here--as here he is--with a foggy glory round his head, softly fenced in with crimson cloth and curtains, addressed by a large advocate with great whiskers, a little voice, and an interminable brief, and outwardly directing his contemplation to the lantern in the roof, where he can see nothing but fog. On such an afternoon, some score of members are--mistily engaged in one of the ten thousand stages of a endless cause, tripping one another up on slippery precedents, groping knee-deep in technicalities, running their goat-hair and horse-hair warded heads against the walls of words, and making a pretence of equity with serious faces, as players might. On such an afternoon, the various solicitors in the cause, some two or three of whom have inherited it from their fathers, who made a fortune by it, ought to be--as are they not?--ranged in a line, in a long matted well (but you might look in vain for Truth at the bottom of it), between the registrar's red table and the silk gowns, with bills, cross-bills, answers, rejoinders, injunctions, affidavits, issues, references to masters, masters' reports, mountains of costly nonsense, piled before them. Well may the court be dim, with the wasting of candles here and there: well may the fog hang heavy in it, as if it would never get out; well may the stained glass windows lose their colour, and admit no light of day into the place; well may the uninitiated from the streets, who peep in through the glass panes in the door, be deterred from entrance by its owlish aspects, and by the drawl languidly echoing to the roof from the padded dais where the Lord High Chancellor looks into the lantern that has no light in it, and where the attendant wigs are all stuck in a fog-bank! This is the Court of Chancery; which has its decaying houses and it blighted lands in every shire; which has its worn-out lunatic in every madhouse, and its dead in every churchyard; which has its ruined suitor, with his slipshod heels and threadbare dress, borrowing and begging through the round of every man's acquaintance; which gives to monied might, the means abundantly of wearying out the right; which so exhausts finances, patience, courage, hope; so overthrows the brain and breaks the heart; that there is not an honourable man among its practitioners who would not give--who does not often give--the warning, 'Suffer any wrong that can be done, rather than come here!'" Id. at 2-3.).

4. A Tale of Two Cities, with an Introduction by Sir John Shuckburgh (" 'It is a far, far better thing that I do, than I have ever done; it is a far, far better rest that I go to than I have ever known.' " Id. at 358.).

5. The Adventures of Oliver Twist, with an Introduction by Humphrey House .

6. The Life and Adventures of Nicolas Nickleby, with an Introduction by Dame Sybil Thorndike ("There are some men who living with the one object enriching themselves, no matter by what means, and being perfectly conscious of the baseness and rascality of the means which they will use every day towards this end, affect nevertheless--even to themselves--a high tone of moral rectitude, and shake their heads and sigh over the depravity of the wold. Some of the craftiest scoundrels that ever walked this earth, or rather--for walking implies, at least, an erect position and bearing of a man--that ever crawled and crept through life by its dirtiest and narrowest ways, will gravely jot down in diaries the events of every day, and keep a regular debtor and creditor account with Heaven, which shall always show a floating balance in their own favour. Whether this a gratuitous (the only gratuitous) part of the falsehood and trickery of such men's lives, or whether they really hope t cheat heaven itself, and lay up treasure up the next world by the same process which has enable them to lay up treasure in this--not to question how it is, so it is. And, doubtless, such book-keeping (like certain autobiographies which have enlightened the world) cannot fail to prove serviceable, in the one respect of sparing the recording Angel some time and labour." "Ralph Nickleby was not a man of this stamp. Stern, unyielding, dogged, and impenetrable, Ralph cared for nothing in life, or beyond it, save the gratification of two passions: avarice, the first and predominant appetite of his nature, and hatred, the second. Affecting to consider himself but a type of all humanity, he was at little pains to conceal his true character from the world in general, and in his own heart he exulted over and cherished every bad design as it had birth. The only scriptural admonition that Ralph Nickleby heeded, in the letter, was 'know thyself.' He knew himself well, and choosing to imagine that all mankind were cast in the same mould, hated then; for, though no man hates himself, the coldest among us having too much self-love for that, yet most men unconsciously judge the world from themselves, and it will be very generally found that those who sneer habitually at human nature, and affect to despise it, are among its worst and least pleasant samples." Id. at 567-568.).

7. Dealings With the Firm of Dombey and Son: Wholesale, Retail, and for Exportation, with an Introduction by H. W. Garrod ("There was a child called Alice Marwood,' said the daughter, with a laugh, and looking down at herself in terrible derision of herself, 'born, among poverty and neglect, and nursed in it. Nobody taught her, nobody stepped forward to help her, nobody cared for her.' [] 'The only care she knew . . . was to be beaten, and stinted, and abused sometimes; and she might have done better without that. She lived in homes like this, and in the streets, with a crowd of little wretches like herself; and yet she brought good looks out of this childhood. So much the worse for her. She had better have been hunted and worried to death for ugliness.' [] 'There was a girl called Alice Marwood. She was handsome. She was taught too late, and taught all wrong. She was too well cared for, too well trained, to well helped on, to much looked after. You were fond of her--you were better off then. What came of that girl comes to thousands every year. It was only ruin, and she was born to it.' [] 'There was a criminal called Alice Marwood--a girl still, but deserted and an outcast. And she was tried, and she was sentenced. And lord, how the gentlemen in the Court talked about it! and how grave the judge was on her duty, and on her having perverted the gifts of nature--as if he didn't know better than anybody there, that they had made curses to her!--and how he preached about the strong arm of the Law--so very strong to save her, when she was an innocent and helpless little wretch; and how solemn and religious it all was. I have thought of that, many times since, to be sure!' [] 'So Alice Marwood was transported, mother,' she pursued, 'and was sent to learn her duty, where there was twenty times less duty, and more wickedness, and wrong, and infamy, than here. And Alice Marwood is come back a woman. Such a woman as she ought to be, after all this. In good time, there will be more solemnity, and more fine talk, and more strong arm, most likely, and there will be an end of her; but the gentlemen needn't be afraid of being thrown out of work. There's crowds of little wretches, boy and girl, growing up in any streets they live in, that'll keep them to it till they've made their fortunes.' " Id. at 488-489.).

8. The Old Curiosity Shop, with an Introduction by the Earl of Wicklow.

9. The Life and Adventures of Martin Chuzzlewit, with an Introduction by Geoffrey Russell (" 'Another will made and destroyed,' he said, 'nothing determined on, nothing done, and I might have died to-night! I plainly see what foul uses all this money will be put at last,' he cried, almost writhing in the bed: 'after filling me with cares and miseries all my life, it will perpetuate discord and bad passions when I am dead. So it always is. What lawsuits grow out of the graves or rich men, everyday: sowing perjury, hatred, and lies among near kindred, where there should be nothing but love! Heaven help us, we have much to answer for! Oh self, self, self! Every man for himself, and no creature for me!' " Id. at 42.).

10. Our Mutual Friend, with an Introduction by E. Salter Davies ("Then Mr. Boffin, with his stick in his ear, like a Familiar Spirit explaining the office to him, sat staring at a little book-case of Law Practice and Law Reports, and at a window, and at an empty blue bag, and at a stick of sealing-wax, and a pen, and a box of wafers, and an apple, and a writing-pad--all very dusty--and at a number of inky smears and blots, and at an imperfectly-disguised gun-case pretending to be something legal, and at an iron box labelled HARMON ESTATE, until Mr. Lightwood appeared." Id. at 88.).

11. Christmas Stories, with an Introduction by Margaret Lane .

12. Sketches By Boz: Illustrative of Every-Day Life and Every-Day People, with an Introduction by Thea Holme ("The red-faced gentleman in the tortoise-shell spectacles had got all the talk to himself just then, and very well he was doing it, too, only he spoke very fast, but that was habit; and rather thick, but that was good living. So we had plenty of time to look about us. There was one individual who amused us mightily. This was one of the bewigged gentlemen in the red robes, who was straddling before the fire in the centre of the Court, in the attitude of the brazen Colossus, to the complete exclusion of everybody else. He had gather up his robe behind him, in much the same manner as a slovenly woman would her petticoats on a very dirty day, in order that he might feel the full warmth of the fire. His wig was put on all awry, with the tail straggling about his neck; his scanty grey trousers and short black gaiters, made in the worst possible style, imparted an additional inelegant appearance to his uncouth person; and his limp, badly-starched shirt-collar almost obscured his eyes. We shall never be able to claim any credit as a physiognomist again, for, after a careful scrutiny of this gentleman's countenance, we had to come to the conclusion that it bespoke nothing but conceit and silliness, when our friend with the silver staff whispered in our ear that he was no other than a doctor of civil law, and heaven knows what besides. So of course we were mistaken, and he must be a very talented man. He conceals it so well though--perhaps with the merciful view of not astonishing ordinary people too much--that you would suppose him to be one of the stupidest dogs alive." Id. at 87-88.).

13. Great Expectations, with an Introduction by Frederick Page ("When I told the clerk that I would take a turn in the air while I waited, he advised me to go round the corner and I should come into Smithfield. So, I came into Smithfield; and the shameful place, being all asmear with filth and fat and blood and foam, seemed to stick to me. So I rubbed it off with all possible speed by turning into a street where I saw the great black dome of Saint Paul's bulging at me from behind a grim stone building which a bystander said was Newgate Prison. Following the wall to the jail, I found the roadway covered with straw to deaden the noise of passing vehicles; and from this, and from the quantity of people standing about, smelling strongly of spirits and beer, I inferred that the trials were own." "While I looked about me here, an exceedingly dirty and partially drunk minister of justice asked me if I would like to step in and hear a trial or so: informing me that he could give me a front place for half-a-crown, whence I should command a full view of the Lord Chief Justice in his wig and robes--mentioning that awful personage like waxwork, and presently offering him at the reduced price of eighteenpence. As I declined the proposal on the plea of an appointment, he was so good as to take me into a yard and show me where the gallows was kept, and also where people were publicly whipped, and then he showed me the Debtors' Door, out of which culprits came to be hanged; heightening the interest of that dreadful portal by giving me to understand that 'four on 'em' would come out at that door the day after to-morrow at eight in the morning to be killed in a row. This was horrible, and he gave me a sickening idea of London: the more so as the Lord Chief Justice's proprietor wore (from his hat down to his boots and up again to his pocket-handkerchief inclusive) mildewed clothes, which had evidently not belonged to him originally, and which, I took it into my head, he had bought cheap of the executioner. Under these circumstances I thought myself well rid of him for a shilling." Id. at 155-15.).

14. Little Dorrit, with an Introduction by Lionel Trillin (From Chapter X, titled "Containing the Whole Science of Government": "The Circumlocution Office was (as everybody knows without being told) the most important Department under Government. No public business of any kind could possibly be done at any time, without the acquiescence of the Circumlocution Office. Its finger was in the largest public pie, and in the smaller public tart. It was equally impossible to do the plainest right and to undo the plainest wrong, without the express authority of the Circumlocution office. If another Gunpowder Plot had been discovered half an hour before the lighting of the match, nobody would have been justified in saving the parliament until there had been half a score of boars, half a bushel of minutes, several sacks of official memoranda, and a family-vault full of ungrammatical correspondence, on the part of the Circumlocution Office." "This glorious establishment had been early in the field, when the one sublime principle involving the difficult art of governing a country, was first distinctly revealed to statesmen. It had been foremost to study that bright revelation, and to carry its shining influence through the whole of the official proceedings. Whatever required to be done, the Circumlocution Office was beforehand with all the public departments in the art of perceiving--HOW NOT TO DO IT." "Through this delicate perception, through the tact with which it invariably seized it, and through the genius with which it always acted on it, the Circumlocution Office had risen to over-top all the public departments; and the public condition had risen to be--what it was." "It is true that How not to do it was the great study and object of all public departments and professional politicians all round the Circumlocution Office. It is true that every new premier and every new government, coming in because they had upheld a certain thing as necessary to be done, were no sooner come in than they applied their utmost faculties to discovering How not to do it. It is true that from the moment when a general election was over, every returned man who had been raving on hustings because it hadn't been done, and who had been asking the friends of the honourable gentleman in the opposite interest on pain of impeachment to tell him why it hadn't been done, and who had been aserting that it must be done, and who had been pledging himself that it should be done, began to devise, How it was not to be done. It is true that the debates of both Houses of Parliament the whole session through uniformly tended to the protracted deliberation, How not to do it. It is true that the royal speech at the opening of such session virtually said, My lords and gentlemen you have a considerable stroke of work to do, and you will please retire to your respective chambers, and discuss, How not to do it. It is true that the speech, at the close of such session, virtually said, My lords and gentlemen, you have through several laborious months been considering with great loyalty and patriotism, How not to do it, and you have found out; and with the blessing of Providence upon the harvest (natural, not political), I now dismiss you. All this is true, but the Circumlocution Office went beyond it." "Because the Circumlocution Office went on mechanically, every day, keeping this wonderful, all-sufficient wheel of statesmanship, How not to do it, in motion. Because the Circumlocution Office was down upon any ill-advised public servant who was going to do it or who appeared to be by any surprising accident in remote danger of doing it, with a minute, and a memorandum, and a letter of instructions that extinguished him. It was this spirit of national efficiency in the Circumlocution Office that had gradulally led to its having something to do with everything. Mechanicians natural philosophers, soldiers, sailors petitioners memorialists, people with grievances, people who wanted to prevent grievances, people who wanted to redress grievances, jobbing people, jobbed people, people who couldn't get rewarded for merit, and people who couldn't get punished for demerit, were all indiscriminately tucked up under the foolscap paper of the the Circumlocution Office." Id. at 104-105. Day after day, I note how the bureacuracy, aka the Circumlocution Office, is killing us, is killing civilization, as we march lockstep finding new and increasingly innovative way of HOW NOT TO DO IT.).

15. Barnaby Rudge: A Tale of The Riots of 'Eighty, with an Introduction by Kathleen Tillotson.

16. Christmas Books, with an Introduction by Eleanor Farjeon.

17. Hard Times For These Times, with an Introduction by Dingle Foot ("Mr. James Harthouse, 'going in' for his adopted party, soon began to score. With the aid of a little more coaching for the political sages, a little more genteel listlessness for the general society, and a tolerable management of the assumed honesty in dishonesty, most effective and most patronized of the polite deadly sins, he speedily came to be considered of much promise. The not being troubled with earnestness was a grand point in his favour, enabling him to take to the hard Fact fellows with as good a grace as if he had been born one of the tribe, and to throw all other tribes overboard, as conscious hypocrites." "'Whom none of us believe, my dear Mrs. Bounderby, and who do not believe themselves. The only difference between us and the professors of virtue or benevolence, or philanthropy --never mind the name--is, that we know it as all meaningless, and say so; while they know it equally and will never say so'." Id. at 166.).

18. The Mystery of Edwin Drood, with an Introduction by S. C Roberts.

19. American Notes and Pictures From Italy, with an Introduction by Sacheverell Sitwell (From "American Notes": "Do we not know that the worst deformity and ugliness of slavery are at once the cause and the effect of the reckless licence taken by these freeborn outlaws? Do we not know that the man who has been born and bred among its wrongs; who has seen in his childhood husbands obliged at the word of command to flog their wives; women, indecently compelled to hold up their garments that men might lay the heavier stripes upon their legs, driven and harried by brutal overseers in their time of travail, and becoming mothers on the field of toil, under the very lash itself; who has read in youth, and seen in his virgin sister read, descriptions of runaway men and women, and their disfigured persons, which could not be published elsewhere, of so much stock upon the farm, or at a show of beasts:--do we not know that that man, whenever his wrath is kindled up, will be a brutal savage? Do we not know that as he is a coward in his domestic life, stalking among the shrinking men and women and slaves armed with his heavy whip, so he will be a coward out of doors, and carrying cowards' weapons hidden in his breast, will shoot men down and stab them when he quarrels? And if our reason did not teach us this and much beyond; if we were such idiots as to close our eyes to that fine mode of training which rears up such men; should we not not know that they who among their equals stab and pistol in the legislative halls, and in the counting-house, and on the market-place, and in all the elsewhere peaceful pursuits of life, must be to their dependents, even though they were free servants, so many merciless and unrelenting tyrants?" Id. at 242.).

20. Master Humphrey’s Clock and A Child’s History of England, with an Introduction by Derek Hudson.

21. The Uncommercial Traveller and Reprinted Pieces, Etc., with an Introduction by Leslie G. Staples.

Re-reading Dickens one more time seemed, late in life, a worthwhile thing to do. Now I have done it, and may check it off my bucket list.

DRESS REHEARSAL FOR SECESSION AND CIVIL WAR

2012-01-22T23:13:00.000Z

Tony Horwitz, Midnight Rising: John Brown and the Raid that Sparked the Civil War (New York: Henry Holt, 2011) ("While living underground, the Captain had drafted a constitution and a 'Declaration of Liberty' for the revolutionary government that tonight's action would found." " 'When in the course of Human events, it becomes necessary' for oppressed People to Rise, and assert their natural Rights,; the declaration began. If the opening sounded familiar, the close was not. 'We will obtain these rights or die in the struggle,' the document stated, before concluding" 'Hung be the Heavens in Scarlet." Id. at 102. Regardless of one's thoughts on John Brown, even if one thinks him a little crazy, one has to admire him for being that rare individual who believes that a certain concrete thing, ending slavery, is worth dying for. Even today, with America's all-volunteer military, few of us even have to bother to ask whether the abstraction called "My Country" is worth placing one's life on the line. Remember the lines from a Crosby, Stills and Nash song: 'Find the cost of freedom. Lie your body down.' "But John Brown wasn't a charismatic foreigner crusading from half a world away. He descended from Puritans and Revolutionary soldiers and believed he was fulfilling their struggle. Nor was he an alienated loner in the mold of recent homegrown terrorists such as Ted Kaczynski and Timothy McVeigh. Brown plotted while raising an enormous family; he also drew support from leading thinkers and activists or his day, including Frederick Douglass, Harriet Tubman, and Henry David Thoreau. The covert group that funneled him money and guns, the so-called Secret Six, was composed of northern magnates and prominent Harvard men, two of them ministers." Id. at 3-4.).

AMERICAN INDIVIDUALISM AS A RATIONALIZATiON OF SOCIAL AND MORAL IRRESPONSIBILITY

2012-01-22T23:11:00.000Z

Peter Benson, Tobacco Capitalism: Growers, Migrant Workers, and the Changing Face of a Global Industry, with a Foreword by Allan M. Brandt (Princeton & Oxford: Princeton U. Press, 2012) (From the Foreword: "There is a disturbing message here about how deep cultural processes and social dynamics allow people to rationalize what they do. Benson finds a common 'script' carefully authored and promoted by the tobacco industry and spoken confidentially and fluently by the farmers it so aggressively exploits. According to this logic, the diseases associated with the tobacco plants farmers grow and harvest are explicitly the responsibility of smokers themselves who have 'decided' to take this risk. And, besides, they argue, there are far more serious problems than those associated with this historic legal product. These aggrieved farmers utilize a set of arguments to defend their identities against the government and public health bureaucrats whom they now view as threatening their livelihood and their way of life. At the same time, Benson show how in seeking government support they fashion appeal for special and qualified needs. Is this identity of tobacco farmers as victims merely self-deception or the expression of a deeply internalized rationalization that facilitates the mundane moral choices of the family farm?" "Benson demonstrates that notions of responsibility are central to the moral world of tobacco farmers. The only way to avoid complicity in the chain of human action that produces tobacco-related diseases is to locate responsibility somewhere else for someone else. He shows that American individualism provides a powerful context for dissociating these aggrieved farmers from the profound health effects of smoking in their communities and around the world." Id. at ix-x. Here is a variant of Arendt's 'banality of evil.').

JUSTICE, GREATNESS, HAPPINESS

2012-01-22T23:09:00.002Z

George Eliot, Romola (1863) ("Who shall put his finger on the work of justice and say, 'It is there'? Justice is like the Kingdom of God,--it is not without us as a fact, it is within us as a great yearning." Id. at 818. " 'I shall not like that sort of life,' said Lillo. 'I should like something that would make me a great man, and very happy besides, --something that would not hinder me from having a good deal of pleasure.' " " 'That is not easy, my Lillo. It is only a poor sort of happiness that could ever come by caring very much about our narrow pleasures. We can only have the highest happiness, such as goes along with being a great man, by having wide thoughts, and much feeling for the rest of the world as well as ourselves; and this sort of happiness often brings so much pain with it that we can only tell it from pain by its being what we would choose before everything else, because our souls see it is good. There are so many things wrong and difficult in this world, that no man can be great --he can hardly keep himself from wickedness-- unless he gives up thinking much bout pleasure or rewards, and gets strength to endure what is hard and painful. . . . And so, my Lillo, if you mean to act nobly and seek to know the best things God has put within reach of men, you must learn to fix your mind on that end, and not on what will happen to you because of it. And remember, if you were to choose something lower, and make it the rule of your life to seek your own pleasure and escape from what is disagreeable, calamity might come just the same; and it would be calamity falling on a base mind, which is the one form of sorrow that has no balm in it, and that may well make a man say, 'I would have been better for me if I had never been born.' . . . ." Id. at 865-866. Food for thought!).

THE HONEST CYNIC'S GUIDE FOR UNDERSTANDING POVERTY POLICY AND LAW

2012-01-22T23:09:00.001Z

Joe Soss, Richard C. Fording, & Sanford F. Schram, Disciplining the Poor: Neoliberalism Paternalism and the Persistent Power of Race (Chicago & London: U. of Chicago Press, 2011) ("Poverty in the United States is usually thought of as a social problem. In the occasional times when it rises to public attention, it troubles the conscience of a wealthy nation and calls forth the curative designs of social reformers. . . . Yet poverty is more than a blight to be eradicated; it is also a problem of governance. The needs and disorders that arise in poor communities, and the difficulties they pose for societal institutions, must somehow be managed. In practice, social programs are rarely designed or evaluated as if the elimination of poverty were an attainable goal. Programs for the poor are used mainly to temper the hardships of poverty and ensure that they do not become disruptive for the broader society. They support the impoverished in ways designed to make poor communities more manageable and to shepherd the poor into the lower reaches of societal institutions. Poverty emerges occasionally in public life as a problem to be solved; the poor exist perennially as subjects who must be governed. . . . Thus, the most basic purpose of poverty governance is not to end poverty; it is to secure, in politically viable ways, the cooperation and contributions of weakly integrated populations. To meet this challenge, governments employ a variety of policy tools and administrative arrangements. They distribute relief to ease the suffering and quiet disruptive political demands. They restrict aid to encourage the poor to take up work, They create incentives and services to smooth the path to preferred behaviors, and they police and imprison the poor for violations of law. They design social programs to teach prevailing norms, and they use surveillance and penalty systems to keep aid recipients moving along the designated paths. Through these and other methods, governments work continually to manage low-income populations and transform them into cooperative subjects f of the market and polity." Id. at 1-2. Over the past few decades, poverty governance in the United States has been transformed by the convergence of two reform movements. The first, often referred to as 'paternalist,' has promoted a more directive and supervisory approach to managing the poor. . . ." "The turn toward paternalism has intersected with a second development" the rise of neoliberalism as an organizing principle of governance. In the 1970s and 1980s, neoliberals initially adopted a laissez-faire stance, seeking to waken the market-constraining effects of state regulations and the welfare state. Over time, however, reformers shifted to a more ambitious agenda. Today, neoliberalism encompasses a wide range of efforts to organize society according to principles of market rationality. Rather than shrinking the stae, neoliberals have worked to restructure it and harness its capacities. They have redesigned state operations around market principles and worked to make state officials more dependent on markets actors to achieve their goals. Neoliberals have embraced the state as an instrument for creating market opportunities, absorbing market costs, and imposing market discipline. Thus, core state functions, form war to welfare, environmental management to incarceration, have been contracted out to private providers. Policy authority has been decentralized and fragmented. Program operations have been restructured to emphasize competition and reward for performance." The convergence of these two streams marks a significant moment in American political development: the rise of a mode of poverty governance that is, at once, more muscular in its normative enforcement and more dispersed and diverse in its organization. Poverty governance today is pursued through a diffuse network of actors who are positioned in quasi-market relations and charged with the task of bringing discipline to the lives of the poor." "Our book is the product to a sustained effort to make sense of this transformation. [W]e seek to clarify the origins, operations, and consequences of neoliberal paternalism as a mode of poverty governance. The key features of our study fall into three broad categories. . . . Third, our study seeks to clarify the central role that race plays in American poverty governance today. The racial character of the contemporary system is more than just a legacy of our troubled racial past. It is a reflection of how race operates today as a social structure that organizes politics and markets and as a mental structure that organizes choice and action in governance. Racialized social relations and race-coded discourses provided essential resources for the political actors who drove the turn toward neoliberal paternalism. In this sense, race played a key role in shaping the governing arrangements that all poor Americans now confront. The effects of race, however, have not been limited to the broad directions of historical change. As we will see, racial factors go far toward explaining the systemic ways that governing arrangements and outcomes vary across the contemporary system. Functioning as a socially constructed 'principle of vision and division', race supplies a powerful cultural frame and structural context for the contemporary practice of poverty governance." Id. at 2-3 (citations omitted). This is an important read on the neoliberal assault on the poor. It should be read by law students, especially those very few law students claiming an interest in poverty and poverty law will read. They might come to realize that they are merely cogs in the poverty governance machinery.).

"STOP TALKING ABOUT EVIL IN GENERAL AND FOCUS INSTEAD ON POLITICAL EVIL IN PARTICULAR

2012-01-22T23:09:00.000Z

Alan Wolfe, Political Evil: What It Is and How To Combat It (New York: Knopf, 2011) (THIS IS A MUST READ!!! "The most important thing we need to do to come to terms with the horrors confronting us is to stop talking about evil in general and focus instead on political evil in particular. Political evil refers to the willful, malevolent, and gratuitous death, destruction, and suffering inflicted upon innocent people by the leaders of movements and states in their strategic efforts to achieve realizable objectives." Id. at 4. "Two factors contribute to the problems democracies face as they try to balance military and political objectives in their response to terrorism. One is that democracies give pride of place to public opinion, a perfectly appropriate thing to do when passing domestic legislation but a far more problematic matter where terrorism is concerned, When attacked, citizens want their leaders to take swift and decisive action against those who would destroy their society, irrespective of whether such action can achieve its goals. Because being soft on terror is as politically effective a charge in the early years of the twenty-first century as being soft on communism was in the middle of the twentieth, leaser who urge nuanced and potentially more effective political responses are likely to be punished at the polls, Relatively transparent, contentious, and media-saturated societies are hardly the best places to hold seminars on political evil, even if i the absence of deliberation the policies are unlikely to work." "In addition, Western democracies find themselves handicapped in their responses to terror because World War II and the cold war were won primarily by relying on the West's military advantages and it would therefore seem to follow that defeating terror will require the same approach, But this as it turns out, is incorrect. . . . In an age of terror, responding with words is likely to wind up saving ore lives than responding with arms. Even when both are required, it is foolish to give up one." Id. at 148-149. "American like to believe that they are governed by laws rather than by men. Precisely because they violate liberal democratic tenets, policies promoting counterevil are fashioned by men rather than by laws. The whole panoply of Bush administration techniques that stood in such sharp contrast to the principles upon which liberal democracies are built--unchecked presidential powers, denial of habeas corpus, rendition to other countries, waterboarding, the dogs and sexual humiliation of Abu Ghraib--came into being because specific people chose them to pursue specific political objectives. September 11 did indeed . . . send shock waves through the American political system. But what would happen in the wake of those shocks was an open question. The fact that Cheney and those like him had preconceived ideas about how the world ought to work helped how it actually did." Id. at 254-255. "Along with [David] Brooks (and even a few other conservative), I believe that there is much truth in the idea that the experience of the 1960s did not prepare us well for the outbreak of political even that followed in subsequent decades. . . . Any nation fascinated by Hair or Jesus Christ Superstar is not one to be taken seriously." "I therefore took it as a good news that as the twentieth century came to its awful conclusion, an impressive number of Western thinkers did in fact turn back to [Arthur] Koestler, the Hungarian-born former communist who so insightfully explored the totalitarian temptation, as well as to such impressive intellectual s as George Orwell, Ignazio Silone, Raymond Aron, Czeslaw Milosz, Simone Weil, Lionel Trilling, and Leszak Kolakowski, all of whom, whether religious or not, knew that Satan still walked among us." Id. at 284-285.).

CORPORATISM AND THE DEATH OF INDIVIDUALISM

2012-01-22T23:08:00.005Z

John Ralston Saul, The Unconscious Civilization (New York; The Free Press, 1995) ("I would argue that our society functions today largely on the relationship between groups. . . . There are thousands of hierarchically or pyramidally organized interest and specialist groups in our society. Some are actual businesses, some are groupings of businesses, some are professions or narrow categories of intellectuals. Some are public, some private, some well intentioned, some ill intentioned. Doctors, lawyers, sociologists, a myriad of scientific groups. The point is not who or what they are. The point is that society is seen as a sum of all the groups. Nothing more. And that the primary loyalty of the individual is not to the society but to her group." "Serious, important decisions are made not through democratic discussion or participation but through negotiation between the relevant groups based upon expertise. I would argue that the Western individual, from the top to the bottom of what is now defined as the elite, acts first as a group member. As a result, they, we, exist primarily as a function, not as citizens, not as an individual. We are rewarded in our hierarchical meritocracies for our success as an integrated function. We know that real expressions of individualism are not only discouraged but punished. The active, outspoken citizen is unlikely to have a successful professional career." "What I am describing is the essence of corporatism. Forget the various declared intentions of the successive generations of corporatists. . . . What counts is what they have in common. And that is their assumption as to where legitimacy lies. In corporatism it lies with the group, not the citizen." "The human is thus reduced to a measurable value, like a machine or a piece of property. We can choose to achieve a high value and live comfortably or be dumped unceremoniously onto the heap of marginality." Id. at 32-33. "Now the very essence of corporatism is minding your own business. And the very essence of individualism is the refusal to mind your own business. This is not a particularly pleasant or easy style of life. It is not profitable, efficient, competitive or rewarded. It often consists of being persistently annoying to others as well as being stubborn and repetitive. The German voice of the Enlightenment, Friedrich Nicolai, put it clearly: 'Criticism is the only helpmate we have which, while disclosing our inadequacies, can at the same time awake us to the desire for greater improvement.' " 'criticism is perhaps the citizens primary weapon in the exercise of her legitimacy. That is why, in this corporatist society, conformism, loyalty and silence are so admired and rewarded; why criticism is so punished or marginalized. Who has not experienced this conflict?" Id. at 165. Yes, we pride ourselves on our individualism when, in fact, we are conformists to the core. We go along to get along. We are loyal pets, and we are rewarded (e.g., paid, promoted, honored) as such. Step out of line, and one is marginalized, demoted or stalled, if not fired.).

BOOK OF THE WEEK: WEEK SIX, 2012

2012-01-22T23:08:00.003Z

Ezra F. Vogel, Deng Xiaoping and the Transformation of China (Cambridge, Massachusetts, & London, England: Belkap/Harvard U. Press, 2011) (See Jonathan Mirsky, "On the Capitalist Road," NYT Book Review, Sunday, 10/23/11.).

THE CLOSE, YET TROUBLED, RELATIONSHIP BETWEEN GOVERNMENT AND HIGHER EDUCATION IN AMERICA

2012-01-22T23:08:00.002Z

Christopher P. Loss, Between Citizens and the State: The Politics of American Higher Education in the 20th Century (Princeton & oxford: Princeton U. Press, 2012) ("During the twentieth century, political leaders and university officials turned to one another with increasing frequency in order to build an expansive national state and educational system. They abandoned their shared tradition of laissez-faire relations and forged a powerful partnership that transformed the country's plural system of colleges and universities into a repository of expertise, a locus for administrative coordination in the federal government, and a mediator of democratic citizenship. . . .Ironically, at the very moment the partnership reached its peak in the 1960s, it turned sour, only to reconstitute itself, if in a different form, following the conservative political ascendance of the 1980. Between Citizens and the State tells this story." Id. at 1. From the bookjacket: "This book tracks the dramatic outcomes of the federal government's growing involvement in higher education between World War I and the 1970s, and the conservative backlash against that involvement from the 1980s onward. Using cutting-edge analysis, Christopher Loss recovers higher education's central importance to the larger social and political history of the United States in the twentieth century, and chronicles its transformation into a key mediating institution between citizens and the state." "Framed around the three major federal higher education policies of the twentieth century--the 1944 GI Bill, the 1958 National Defense Education Act, and the 1965 Higher Education Act--the book charts the federal government's various efforts to deploy education to ready citizens for the national, bureaucratized, and increasingly global world in which they lived. Loss details the myriad ways in which academic leaders and students shaped, and were shaped by, the state's shifting political agenda as it moved from a preoccupation with economic security during the Great Depression to national security during World War II and the Cold War, to securing the rights of African Americans, women, and other previously marginalized groups during the 1960s and '70s. Along the way, Loss reappraises the origins of higher education's current-day diversity regime, the growth of identity group politics, and the privatization of citizenship at the close of the twentieth century." "At a time when people's faith in government and higher education is being sorely tested, this book sheds new light on the close relations between American higher education and politics.").

GOD'S RIVAL?: THE DEADLY HAND OF THE MARKET.

2012-01-22T23:08:00.000Z

Amitav Ghosh, River of Smoke: A Novel (New York: Farrar, Straus & Giroux, 2011) (" Indeed, Mr. Burnham?' It was Mr. King, speaking from the other end of the table. 'You are evidently greatly solicitous of human life, which is undoubtedly a most commendable thing. But may I ask why your concern does not extend to the lives you put in jeopardy with your consignments of opium? Are you not aware that with every shipment you are condemning hundreds, maybe thousands of people to death? Do you see nothing monstrous in your own actions?' " " 'No, sir,' answered Mr. Burnham coolly. 'Because it is not my hand that passes sentence upon those who choose the indulgence of opium. It is the work of another, invisible, omnipotent: it is the hand of freedom, of the market, of the spirit of liberty itself, which is none other than the breath of God.' " "At this Mr. King's voice rose in scorn: 'Oh shame on you, who call yourself a Christian! Do you not see that it is the grossest idolatry to speak of the market as though it were the rival of God?' " Id. at 431-432. In our twentieth century, think drugs, alcohol, addictive medicines, subprime mortgages, hedge funds, schools and universities which grant degrees but do not educate, sweatshops feeding our conspicuous consumption, etc. Opium takes many forms, and its market is neither a neutral nor just god.).

"MONEY IS MONEY, AND A DEAL'S A DEAL."

2012-01-22T23:07:00.000Z

David Graeber, Debt: The First 5,000 Years (Brooklyn, NY: Melville House, 2011) ("All the great religious traditions seen to bang up against this quandary in one form or another. On the one hand, insofar as all human relations involve debt, they are morally compromised. Both parties are probably already guilty of something just by entering into the relationship; at the very least they run a significant danger of becoming guilty if repayment is delayed. On the other hand, when we say someone acts like they 'don't owe anything to anybody,' we're hardly describing the person as a paragon of virtue. In the secular world, morality consists largely of fulfilling our obligations to others, and we have a stubborn tendency to imagine these obligation as debts. Monks, perhaps, can avoid the dilemma by detaching themselves from the secular world entirely, but the rest of us appear condemned to live in universe that doesn't make a lot of sense." Id. at 12-13. "Here we come to the central question of this book: What, precisely, does it mean to say that our sense of morality and justice is reduces to the language of a business deal? What does it mean when we reduce moral obligations to debts? What changes when the one turns into the other? And how do we speak about them when our language has been so shaped by the market? On one level the difference between an obligation and a debt is simple and obvious. A debt is the obligation to pay a certain sum of money. As a result, a debt, unlike any other form of obligation, can be precisely quantified. This allows debt to become simple, cold, and impersonal--which, in turn, allows them to be transferable. If one owes a favor, or one's life, to another human being--it is owed to that person specifically. But if one owes forty thousand dollars at 12-percent interest, it doesn't really matter who the creditor is, neither does either of the two parties have to think much about what the other party needs, wants, is capable of doing--as they certainly would if what was owed was a favor, or respect, or gratitude. One does not need to calculate the human effect; one need only calculate principal, balances, penalties, and rates of interest. If you end up having to abandon your home and wander in other provinces, if your daughter ends up in a mining camp working as a prostitute, well, that's unfortunate, but incidental to the creditor. Money is money, and a deal's a deal." Id at 13-14. "Whenever ['from each according to their abilities, to each according to their needs'] is the operative principle, even if it's just two people who are interacting, we can say we are in the presence of a sort of communism." "Almost everyone follows this principle if they are collaborating on some common project. If someone fixing a broken water pipes says, 'Hand me the wrench,' his co-workers will not, generally speaking, say, 'And what do I get for it?'--even if they are working for Exxon-Mobil, Burger King, or Goldman Sachs. The reason is simple efficiency (ironically enough, considering the conventional wisdom that 'communism just doesn't work'): if you care about getting something done, the most efficient way to go about it is obviously to allocate tasks by ability and give people whatever they need to do them. One might even say that it's one of the scandals of capitalism that most capitalist firms, internally, operate communistically. True, the don't tend to operate very democratically. Most often they are organized around military-style top-down chains of command. But there is often an interesting tension here, because top-down chains of command are not particularly efficient: they tend to promote stupidity among those on the top, resentful foot-dragging among those on the bottom. The greater the need to improvise, the more democratic the cooperation tends to become. Inventors have always understood this, start-up capitalists frequently figure it out, and computer engineers have recently rediscovered the principle: not only with things like freeware, which everyone talks about, but even in the organisation of their businesses. Apple Computers is a famous example: it was founded by (mostly Republican) computer engineers who broke from IBM in Silicon Valley in the 1980s, forming little democratic circles of twenty to forty people with their laptops in each other's garages." Id. at 96. Food for thought for those trying to rethink legal education? "Formal slavery has been eliminated, but (as anyone who work's from nine to five can testify) the idea that you can alienate your liberty, at least temporarily, endures. In fact, it determines what most of us have to do for most of our waking hours, except, usually, on weekends. The violence had been largely pushed out of sight. But this is largely because we're no longer able to imagine what a world based on social arrangements that did not require the continual threat of tasers and surveillance cameras would even look like." Id. at 210.).

BOOK OF THE WEEK: WEEK FIVE, 2012

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Peter Englund, The Beauty and the Sorrow: An Intimate History of the First World War, translated from the Swedish by Peter Graves (New York: Knopf, 2011) ("The maimed and torn bodies are a reality in themselves but also a picture of what war does to a man's conceptions and hopes, indeed to the old world as a whole. As much as anything else, the war began as an attempt to preserve Europe exactly as it was, to uphold the status quo, but it is now changing the continent in a more sweeping way than anyone could have imagined in their worst nightmares. An ancient truth is making itself manifest yet again--the truth that sooner or later wars become uncontrollable and counter-productive because men and societies will tend to sacrifice everything in their blind drive to be victorious. That has rarely been more true than it is at present, when those in power, unintentionally and without any plan, have unleashed uniquely uncontrollable forces: extreme nationalism, social revolution, religious hatred. (Not to mention a grotesque level of debt that is undermining the economic health of all the states involved.) . . . Id. at 291-292. From the bookjacket: "In this masterly, highly original narrative history, Peter Englund takes a revelatory new approach to the history of World War I, magnifying its least examine, most stirring component: the experiences of the average man and woman--not only the tragedy and horror but also the absurdity and even, at times, the beauty." "The twenty people from whose journals and letters Englund draws are from Belgium, Denmark, and France; Great Britain, Germany, and the Austro-Hungarian Empire; Italy, Australia, and New Zealand; Russia, Venezuela, and the United States. . ." "A brilliant mosaic of perspective that moves between the home front and the from lines. The Beauty and the Sorrow reconstructs the feelings, impressions, experiences, and shifting spirits of these twenty particular people, allowing them to speak not only for themselves but also for all those who were in some way shaped by the war, but whose voices have been forgotten, rejected, or simply remained unheard.").

ABOUT ISRAEL

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Gershom Gorenberg, The Unmaking of Israel (New York: Harper, 2011) ("The rule of law, in its substantive sense, is essential to a democratic state. By increments, the settlement project hollowed out the rule of law. Clear borders are fundamental to democracy. Settlement erased Israel's borders, or created several. For Jews, the state stretched from the Mediterranean to the Jordan, or perhaps to the Green Line plus the municipal limits of settlements. For Palestinians, the Green Line marked where government by the consent of the governed ended. Palestinians in occupied territory were only the subjects of military government. Unlike Arabs who had lived under military rule in Israel, they were not also 'citizens of a liberal nation-state.' No political party in Israel stood to gain votes by paying passing attention to their needs." Id. at 89. "What will Israel be in five years, or twenty? Will it be the Second Israeli Republic, a thriving democracy within smaller borders? Or a pariah state where one ethnic group rules over another? Or a territory marked on the map, between the river and the sea, where the state has been replaced by two warring communities? Will it be the hub of the Jewish world, or a place that most Jews abroad prefer not tho think about? The answer depends on what Israel does now?" Id. at 221-222., Also, see Jeffrey Goldberg, "6 Days, 33 Years," NYT Book Review, Sunday, 11/20/2011.).

Shimon Peres (in Conversation with David Landau), Ben-Gurion: A Political Life (Jewish Encounters) (New York: Nextbook/Schocken, 2011) ("After the 1967 war, Ben-Gurion urged extensive Jewish settlement in Jerusalem and in Hebron too, where the Tomb of the Patriarchs (for Muslims, the Ibrahim Mosque) is a site second only to the Western Wall in its historic holiness for Jews. 'We must not move from Jerusalem,' he was quoted as saying. He was against restoring the West Bank to King Hussein, but he warned against annexing it, with its one million Palestinian Arab inhabitants. 'That would be a serious danger to Israel,' he said. The same applied to the Palestinian refugees living in the Gaza Strip." Id. at 196.).

BOOK OF THE WEEK: WEEK FOUR, 2011

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Robert Trivers, The Folly of Fools: The Logic of Deceit and Self-Deception u Human Life (New York: Basic Books, 2011) (From the bookjacket: "At the core of our mental lives is a contradiction. Although our senses have evolved to give us an exquisitely detailed perception of the outside world, as soon as that information hits our brains, it often becomes biased and distorted, usually without conscious effort. Why should this be so? Wouldn't natural selection act to prevent bias and distortion? Wouldn't self-deception--the failure of an individual to see the world as it is--provide a roadmap to personal failure?" "Put differently, why does self-deception succeed?" "In The Folly of Fools, leading evolutionary theorist Robert Trivers argues that in order to deceive others, we often deceive ourselves first. To lie to others, we hide our intent to deceive and the details of our deception; we selectively recall information and bias our arguments. But deception is more than just a verbal game. Trivers marshals evidence--spanning everything from immunology to neuroscience to group dynamics to the relationships of parents and children--of an arms race between deceiver and deceived at every level of biological complexity. The urge to deceive ourselves and others is not without risk, however, and as Trivers convincingly shows, this urge has had, and continues to have, negative effects, undermining everything from academic endeavors and air safety to economic markets and international relations." "The culmination of four decades of research, The Folly of Fools is a testament to the power of evolutionary analysis to unravel the riddles of human life." I am coming more and more to appreciate the extent to which lawyers, including academic lawyers (that is, law professors, law deans, and law deanlets), are constantly engaged in acts of deception and gross acts of self-deception. Lawyers lie to others and to themselves constantly. They pontificate on their rules of professional responsibility, their rules of ethics, their honor codes, etc., trying to deceive themselves and others into believing them worthy of trust. It is never ending melodrama. And the worse may be those who claim to be good judges of character; it is, perhaps, their worst self-deception. All lawyers engage in the folly of fools. I myself am guilty as charged.).

THE INSTABILITY OF THE AMERICAN DREAM

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James Truslow Adams, The Epic of America (1931) (Safety Harbor, FL: Simon Publications, 2001) (By the 1930s, "[w]e had got tired of idealism and had been urged to place our destinies in the hands of the safe realists, hard-headed business men who would stand no nonsense about 'moral issues,' of which we were told we had had enough, and who would be practical. . . . As the successful business man would consider himself the best interpreter of good economics, he thus set himself up as the best judge of national morals. Long ago we noted the beginning of the confusion in the American mind between business and virtue. The confusion by 1930 had gone full circle, By then it had become complete. If what was economically right was also morally right, we could surrender our souls to professor of economics and captains of industry." "But, having surrendered idealism for the sake of prosperity, the 'practical men' bankrupted us on both of them. We had forgotten, though no post-war leader dared remind us of the fact, that it is impractical to be only 'practical.' Without a vision the people perish. . . ." Id. at 400. "But there has been also the American Dream, that dream of a land in which life should be better and richer and fuller for every man, with opportunity for each according to his ability or achievement. It is a difficult dream for the European upper classes to interpret adequately, and too many of us ourselves have grown weary and mistrustful of it. It is not a dream of motor cars and high wages merely, but a dream of a social order in which each man and each woman shall be able to attain to the fullest stature of which they are innately capable, and be recognized by others for what they are, regardless of the fortuitous circumstances of birth or position. . . . " "No, the American dream that has lured tens of millions of all nations to our shores in the past century has not been a dream of merely material plenty, though that has doubtless counted heavily. It has been much more than that. It has been a dream of being able to grow to fullest development as man and woman, unhampered by the barriers which had slowly been erected in older civilizations, unrepressed by social orders which had developed for the benefit of classes rather than for the simple human being of any and every class. And that dream has been realized more fully in actual life here than anywhere else, though very imperfectly even among ourselves." "It has been a great epic and a great dream. What, now, of the future." Id. at 404-405. Now, as then, a good question: What is the future of the American dream? "Just as in education we have got to have some aims based on values before we can reform our system intelligently or learn in what direction to go, so with business and the American dream. Our democracy cannot attempt to cur, guide, or control the great business interests and powers unless we have clear notions as to the purpose in mind when we try to do so. If we are to regard man merely as a producer and consumer, then the more ruthlessly efficient big business is, the better. Many of the goods consumed doubtless make man healthier, happier, and better even on the basis of a high scale of human values. But if we think of him as a human being primarily, and only incidentally as a consumer, then we have to consider what values are best or most satisfying for him as a human being. We can attempt to regulate business for him not as a consumer but as a man, with many needs and desires with which he has nothing to do as a consumer. Our point of view will shift from efficiency and statistics to human nature. We shall not create a high-wage scale in order that the receiver will consumer more, but that he may, in one way or another, live more abundantly, whether by enjoying those things which are factory-produced or those which are not. The points of view are entirely different, socially and economically." Id. at 408. Is there any doubt that late twentieth- and early twenty-first-century America is essentially a consumer culture, a culture where men and women are view primarily as consumers, and far much less as human beings?).

MORALISTIC AMERICANISM

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Seymour Martin Lipset, American Exceptionalism: A Double-Edged Sword (New York: Norton, 1996) ("The emphasis on Americanism as a political ideology has led to a utopian orientation among American liberals and conservatives. Both seek to extend the 'good society.' But the religious tradition of Protestant 'dissent' have called on Americans to be moralistic, to follow their conscience with an unequivocal emphasis not to be found in countries whose predominant denominations have evolved from state churches. The dissenters are 'the original sources both of the close intermingling of religion and politics that [has] characterized subsequent American history and of the moral passion that has powered the engines of political change in America. As Robert Bellah documented: 'The millenialism of the American Protestant tradition again and again spawned movements for social change and social reform." 'Americans are utopian moralists who press hard to institutionalize virtue, to destroy evil people, and eliminate wicked institutions and practices. A majority even tell pollsters that God is the moral guiding force in American democracy. They tend to view social and political drams as morality plays, as battles between God and the Devil, so that compromise is virtually unthinkable. To this day, Americans, in harmony with their sectarian roots, have a stronger sense of moral absolutism than Europeans and even Canadians. . . " "A sense of moral absolutism is, of course, part of what some people see as problematic about American foreign policy. . . ." Id. at 63. And for those of you who think American political cynicism is a recent phenomenon, remember Lipset is writing in the early 1990s when he, in a section titled "The Growth of cynicism," he notes the following: "Popular involvement in civil society apart, the evidence has been growing that all is not well with the American polity. Over the past three decades, opinion polls show that the citizenry is increasingly distrustful of its political leaders and institutions. When asked about their 'confidence' in government, large majorities, here as in almost every country, report that they have 'none,' 'little,' or 'a fair amount' of trust in the president and the legislative bodies. Those who are strongly positive are minorities, usually small ones." Id. at 281.).

RICHARD A. EPSTEIN ON THE FAILINGS OF THE (PROGRESSIVE) ADMINISTRATIVE STATE

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Richard A. Epstein, Design for Liberty: Private Property, Public Administration, and the Rule of Law (Cambridge, Massachusetts, & London, England: Harvard U. Press, 2011) ("Without question, the most profound domestic change in the United States from the beginning of the twentieth century through the present time has been the vast expansion of government under the influence of the progressive worldview that received its highest expression in President Franklin D. Roosevelt's New Deal. Progressive thought was no small perturbation from the views of government that had previously defined the American legal tradition. Indeed, the progressive movement defined itself in opposition to once-dominant classical liberal theories of government that stressed the dominance of private property, individual liberty, and limited. government." Id. at 1. "This short book offers one effort to resurrect the twin pillars of an earlier structure. On the substantive side, it urges a return to the classical liberal views on property and contract. On the procedural side, it cautions that the expansion of the administrative state, with its civil and criminal sanctions, is deeply in conflict with traditional values of the rule of law." Id. at 6. "The trick is to develop management practices that allow for the needed discretion to be invested in the right individuals, subject to the right level of supervision and control. Therefore, the key point in dealing with the rule of law is to make sure that the tasks that are given to government are both limited and well-defined, and to let the people who are in charge have the degree of flexibility needed to carry out their task. If there is one feature of public administration of law that I attack in this book, it is the peculiar reversal that takes place when courts are willing to 'defer' to administrative agencies in the interpretation of the legal language found in statutes and regulations, but feel compelled to flyspeck any government administration decision on where to put a road or to open a school, under the conceit that any decision that does not consider all the right factors, and that ignores all the irrelevant ones, is, in virtue of this fact alone, arbitrary and capricious. No system of extensive judicial oversight on management decisions can displace the need for the sorts or internal checks that good management organizations develop on their own." Id. at 7. "Older writings used to say that the system of private property abhors a vacuum. This meant that once politics is allowed to fill in the gaps, huge amounts of energy that should be directed toward productive activities will be turned to the grim task of seeing how to take advantage of the political vulnerabilities of others. Every society has to suffer that drag to some degree. But once those forces are unleashed and celebrated, it is only a question of time as to how long a political order can prosper. Historically, we witness a constant battle between the forces of science and technology that expand the social pie, and the forces of faction and politics that eat away at those gains. Once upon a time, I was confident that the forces of growth and prosperity could maintain the upper hand. But watching the flailing of the political actors, and the drift of our economic system, I am no longer so sure." Id. at 192. Agree or disagree with Richard Epstein, he in a thinker to whom all serious political, social, legal thinkers must come to terms. Right or wrong, reading Epstein always provides much food for thought. And agreeing or disagreeing with him, who cannot share his sense of despair regarding the "flailing of the political actors, and the drift of our economic system"?).

MISCELLANEOUS RE-READINGS, OR FOOD FOR THOUGHT FOR INDEPENDENT THINKING LAW STUDENTS

2012-01-22T23:03:00.000Z

Paul Avrich, Anarchist Portraits (Princeton: Princeton U. Press, 1988) (a collection of essays on Michael Bakunin, Peter Kropotkin, Anatoli Zhelezniakov, Nestor Makhno, V. M. Eikhenbaum (Volin), Pierre-Joseph Proudhon, Benjamin Tucker, Oriole Tucker, C. W. Mowbray, Nicola Sacco, Bartolomeo Vanzetti, Alexander Berkman, Ricardo Flores Magon, Mollie Steimer, Paul Brousse, Gustav Landauer, J. W. Fleming, and several other individuals and groups).

John Patrick Diggins, The Rise and Fall of the American Left (New York: Norton, 1992) ("The book has three aims: to describe the sensibilities and styles of thought that a radical intellectual movement assumes as a means of mobilizing its emotional energies; to explain the philosophical posture that movement adopts as a means of negating prevailing sentiments that sustain the existing order; and to analyze the historical developments that account for the 'deradicalization' of the left as a generational phenomenon. The main focus, therefore, will be not on the Left in general but on the three different American Lefts and a fourth Left that represents a curious life of the third." "These are the Lyrical Left of the First World War era, the Old Left of the thirties, the New Left of the sixties, and the Academic Left of our [i.e., late twentieth century] times." Id. at 19-20. Of course, early twenty-first-century America is seeing and experiencing another "Left." Certainly the, for lack of a better name, 'Occupy Wall Street' Left is neither a resurgence of the New Left of the 1960s, nor an extension of the Academic Left of of the late twentieth century.).

E. J. Hobsbawm, Labouring Men: Studies in the History of Labour (New York: Basic Books, 1964) (From the essay "History and 'The Dark Satanic Mills'": 'For most of the past hundred and fifty years the debate on what social conditions were like under early industrial capitalism had been pretty one-sided. The majority of the British people in the first half of the nineteenth century was convinced that the coming of the industrial capitalism had brought them appalling hardships, that they had entered a bleak and iron age. The economists assumed that the condition of the labouring poor must be rather miserable: much of their theory was designed to show why this was inevitable. . . ." "The historians who want to take a different view--and in the past thirty or forty years they have been very influential--have a very difficult job on their hands. This article proposes to discuss some of the ways in which they have attempted to tackle it. . . . " "The cheerful school of historians about the early industrial Britain has to explain away a mass of very inconvenient facts: the majority opinion of contemporary observers and students, the huge weight of documentation about the awful social and economic conditions of the working population in the first half of the nineteenth century, and, of course, the massive discontent for the labouring poor, which broke out, time and again, in vast movements of radicalism, revolutionary trade unionism, Chartism, in riots and attempted armed risings." Id. at 105-106. "The attempt to prove statistically that early capitalism made people better off has failed, for the time being. . . . The cheerful historians are left with the mass of evidence, which remains gloomy. What can they do? They can attempt to discredit it. . . . Now there is a well known and venerable academic technique for proving that, let us say, a desert is not dry and infertile. The critic points out that it is not actually waterless and lifeless. There are wells in it, and occasional temporary torrents, and sometimes it rains. Camels and bedouin, and various animals, down to fleas and mosquitoes, live in many parts of it, and so do plants, sometime in profusion. Nor is it all composed of sand. It is therefore wild and unscholarly exaggeration to say a desert is dry and infertile, and though the true scholar will not question the motives of other people . . . it is pretty clear that those who say so are unscholarly or probably actuated by a prejudice against deserts. Admittedly there is a lot of evidence that many people regard deserts in this light, but they should know better. This method is extraordinarily useful: it has has been used, for instance, to prove that there have never been such things as revolutions (including the Industrial Revolution). A realistic historian has once said that it is possible so to define subsistence agriculture as to prove that it never existed anywhere, and the same goes for deserts, revolutions, poverty-increasing or diminishing, capitalism, or whatever we choose. The only trouble is that if the scholar were actually to find himself in a desert, he would not be helped by the proof that it did not, strictly speaking, exist, or if it existed, was not dry and infertile as was often said. Fortunately for themselves the historian of Britain's early industrial age, having proved by these means, e.g., that the 'Hungry Forties' are misnamed . . . , will not find themselves in the situation of an English or Irish labourer of that period." Id. at 108-109 (italics added). Does not the reasoning of the cheerful historian seem quite common in late-twentieth- and early-twenty-first-century America? Poverty is not a problem because the poor don't exist or are only poor because they chose to be poor; affordable healthcare is not a problem because markets are efficient and, if people really wanted/valued health and healthcare, they would have save sufficiently for and reallocated money to their healthcare; that racism is no longer a problem, and we live in a post-racial American, because there are some interracial marriages, some interracial children, some members of racial minorities are wealthy, successful, articulate, and have have won high political office, and because there is not a race riot every other month all of which would not, according to the cheerful observer, were racism to still exist in America.).

Christopher Jencks, The Homeless (Cambridge, Massachusetts, & London, England: Harvard U. Press, 1994) ("In this book I define homelessness more narrowly, concentrating on the people whose existence most worries the public. I include everyone who slept in a public place or a shelter during a given week, and I treat welfare hotels as a species of shelter. I ignore people who are in jails, detoxification centers, mental hospitals, or other institutions through the week, despite the fact that many of them come from the street and will return to the streets as soon as they are released. I include children in family shelters and welfare hotels, but I ignore both teenage runaways and children in foster care, many of whom are far more homeless than most children in shelters." "This list should serve as a reminder, if any is needed, that what I am really writing about is what we call the 'visible homeless'--people whose presence on the streets upsets the more prosperous classes. These are not necessarily the poorest or the most deprived of our fellow citizens. If we look in jails, detox centers, mental hospitals, and foster homes, we can find hundreds of thousands of other Americans surviving without the physical or emotional support we normally associate with having a home. We do not count these people as homeless because they are out of sight. When people contemplate human misery, the cliche that equates 'out of sight' with 'out of mind' is all too accurate." Id. at 7.).

Michael B. Katz, In the Shadow of the Poorhouse: A Social History of Welfare in America 9New York: Basic Books, 1986) (From the bookjacket: "Nobody likes the American welfare system. Yet it stubbornly resists fundamental change. In the Shadow of the Poorhouse examines the origins of social welfare, both public and private, from the days of the colonial poorhouse through the current tragedy of the homeless and explains why a system so thoroughly disliked and often criticized persists." "Almost from it inception . . . welfare has served four purposes: the relief of misery, the preservation of social order, the regulation of the labor market, and the mobilization of political power. [Katz] maintains that the unresolved tensions between these divergent goals have undercut all attempts to formulate coherent welfare policy. . . .").

Jeremy Rifkin, The End of Work: The Decline of the Global Labor Force and the Dawn of the Post-Market Era (New York: Tarcher/Putnam Books, 1995) (You know the story, and are suffering its consequences. From the bookjacket: "In this compelling,disturbing, and ultimately hopeful book, Jeremy Riflin argues that we are entering a new phase in history--one characterized by the steady and inevitable decline of jobs. Worldwide unemployment is now at the highest level since the great depression of the 1930s [note: this book was published in 1995, twelve to thirteen years before the worldwide economic and financial crisis of 2007 and 2008, which is continuing still). The number of people underemployed or without work is rising sharply as millions of new entrants into the workforce find themselves victims of an extraordinary high-technology revolution, Sophisticated computers, robotics, telecommunications, and other cutting-edge technologies are fast replacing human beings in virtually every sector and industry--from manufacturing, retail, and financial services, to transportation, agriculture, and government." "Many jobs are never coming back. Blue collar workers, secretaries, receptionists, clerical workers, sales clerks, bank tellers, telephone operators, librarians, wholesalers, and middle managers are just a few of the many occupations destined for virtual extinction, While some new jobs are being created, they are, for the most part, low paying and generally temporary employment, More than fifteen percent of the American people are currently living below the poverty line. The world, says Rifkin, is fast polarizing into two potentially irreconcilable forces: in one side, an information elite that controls and manges the high-tech global economy; and on the other, the growing numbers of permanently displaces workers, who have few prospects and little hope for meaningful employment in an increasingly automated world. Rifkin suggests that we move beyond the delusion of retraining for nonexistent jobs. He urges us to begin to ponder the unthinkable--to prepare ourselves and our institutions for a world that is phasing out mass employment in the production and marketing of goods and services. Redefining the role of the individual in a near workerless society is likely to be the single most pressing issue in the decades to come." "Riflin says we should look toward a new, post-market era. Fresh alternatives to formal work will need to be devised. New approaches to providing income and purchasing power will have to be implemented. Greater reliance will need to be place on the emerging 'third sector' to aid in the restoration of communities and the building of a sustainable culture." "The end of work could mean the demise of civilization as we have come to know it, or signal the beginning of a great social transformation and a rebirth of the human spirit." My heart hopes for the latter, but my head knows that the former is the better bet.).

Olivier Zunz, Making America Corporate 1870-1920 (Chicago & London U. of Chicago Press, 1990) (From the bookjacket: "In this far-ranging essay on social change, Olivier Zunz revises our understanding of the connections between business and society forged during the early years of the modern American corporation. Through collective biography of the middle-level managers and engineers, as well as salesmen and clerks, he links the formation of this group of middle-class workers to the question of corporate growth, Zunz asks both how the rise of corporations changed the middle class and why the creation of our modern work culture engaged the energy and imagination of so many Americans. Pushing beyond previous studies of power elites and oppressed workers, he argues that the disparate group of white-collar employees did not so much react to the corporate world as design it. Members of this new middle class interpreted the job of industrializing the land as their special mission and, to a large extent, succeeded in shaping their workplace in their own image. In doing so, they transformed American culture.").

DEPENDENCY DAY: WHY DEMOCRACY IS DEAD AND THE AMERICAN REPUBLICAN FORM OF GOVERNMENT IS DYING

2012-01-22T23:02:00.001Z

Jacob S. Hacker & Paul Pierson, Off Center: The Republican Revolution and the Erosion of American Democracy (New Haven & London: Yale U. Press, 2005) ("It should . . . be clear that the main target of our critique is Republican political elites, not political elites in general. It is true that a number of the trends that we discuss--the growing power of the parties' 'bases,' the rise in safe seats, the opportunities for manipulation of political rhetoric and policy design--have created opportunities for mischief that can be exploited by either party. And we should make clear that such mischief on the part of either party is equally troubling. The goal of this book is to identify dangers to democracy, not dangers to the Democratic Party." Id. at 18. "[F]or competition--whether political or economic--to work, it must be fair. Basic information must be available and accessible, and 'consumers' must have real and effective opportunities to reject 'products' on the basis of that information. The argument of this book is that America's political market no longer looks like the effectively functioning markets that economics textbooks laud. Rather, it increasingly resembles the sort of market that gave us the Enron scandal, in which corporate bigwigs with privileged information got rich at the expense of ordinary shareholders, workers, and consumers." Id. at 16. "A skeptic might ask: 'But aren't the tax cuts small bore in the big scheme of things' The answer is a resounding no. The Bush tax cuts outstrip even the Reagan cuts in total magnitude. And unlike the Reagan tax cuts they show few signs of being reversed by moderates worried about the skyrocketing deficits they have produced. In fiscal terms, the Reagan tax cuts were a lavish party by an immature thirty-something, who spent the next fifteen years working overtime to pay off the debt. The Bush tax cuts, in contrast, are the equivalent of a fifty-five-year-old blowing his nest egg on lottery tickets and them loading up his credit card to keep the fun going. And just as the true consequences of our near-retirees' gambling spree won't become transparent until the repo man arrives and his retirement check doesn't, the big effects of the tax cuts won't become clear until America's recent debt binge becomes too expensive to sustain. But when the day of reckoning comes, the tax cuts will affect almost everything government does. The biggest domestic policy change of the past quarter-century, they are as powerful as example of off-center governance as one could imagine." Id. at 69-70. Remember that the preceding paragraph was written before the 2008 financial crisis, and while the American wars--Afghanistan and Iraq--were still being fought and unpaid for. "[N]ow policy design itself has become thoroughly politicized. Features of legislation themselves are subjected to careful strategic vetting to determine which components will 'prime' voters in the appropriate ways. Armed with this information, GOP elites design laws not to respond to public opinion but to manipulate and shape it to maximize political gain. Policy complexities are exploited and magnified to increase the size of subsidies for privileged groups. Time bombs calibrated to reconfigure the future political agenda favorably are quietly slipped into law. And then, using all the tools of coordination, those hopeless complicated designs are hurried through Congress with no time for analysis or reflection--which is exactly how the designers want it." "The political use of policy design is nothing new. All elected officials try to make their policies popular and politically sustainable. What is new is the degree to which policy design has become politicalized, the amount of manipulation that takes place, the frequency with which these strategies are exploited, and the exclusiveness of the main beneficiaries. For those who say, 'This has always happened,' we have a simple response:'Yes, but not like this.' As with the use of procedural legerdemain, the increasing manipulation of voters through policy design has precedents in past efforts by Democrats as well as Republicans. But current practice far exceeds what has been done before in both ubiquity and extent." Id. at 157.).

John B. Judis, The Paradox of American Democracy: Elites, Special Interests, and the Betrayal of Public Trust (New York: Pantheon, 2000).

Robert Meister, After Evil: A Politics of Human Rights (New York: Columbia U. Press, 2011) ("Should the Obama administration refrain from prosecuting Bush-era human rights violations now that change has come? The recent literature on 'transitology' suggests that, if the German people had somehow managed to overthrow Hitler (or, better, yet, voted him out of office), the Nuremberg trials would have been superfluous as an instrument of cultural change. A similar argument is made about the relevance of Barack Obama's election. Why prosecute now that 'change has come' and the whole world knows what happened? If human rights is primarily a 'culture,' then the fact that the U.S. already has such a culture, or has now returned to it, would become a reason not to prosecute those who believed in good faith that extralegal measures were justified after 9/11. The only reason to prosecute the guilty, according to this argument, is to prove that we can do do so--that ours is not a culture of impunity.' But, if we can, then we shouldn't--so the real culture if impunity arrives when human rights are once again believed to be secure." "I have argued in this chapter that such a view is wrong if Nuremberg was right. Former Attorney General Gonzales has claimed that he, and other Bush administration officials, should not be prosecuted because they believed in good faith that a true emergency was present and thus did not intend to undermine the rule of law as such. But the tribunal's final judgment at Nuremberg makes the existence of an emergency inadmissible as a defense--otherwise there should have been a new trial allowing it. If the defendants are not allowed to plead that there really was an emergency, what is the relevance of their believing that one existed at the time? Honorable intent would, of course, be relevant to pleas in mitigation at the time of sentencing--and could also count in favor of a pardon following conviction. But it is no less true that a lack of good-faith belief that the emergency was real would aggravate the offense of anyone convicted of human rights violations, as it might have done in the case of Nazis who were hanged for their intentional abuses of power. To reach such conclusions about any given official a trial would be needed, or at least a pretrial investigation that wold recommend prosecution or pardon based on publicly disclosed facts. I see little basis for the legal view that no U.S. official could be convicted of a human rights violation unless they were also part of a conspiracy to undermine democracy that was arguably similar to German Nazism. This is precisely the prosecution theory that the Nuremberg tribunal rejected in holding defendants criminally responsible as individuals. Even if Bush administration officials were allowed by .S. courts, based on standard domestic practice, to raise advice of counsel as a defense, this would, at most, be a legal theory that, to be tested, would probably require waiver of attorney-client privilege." "What about the lawyers who gave such advice? There is, of course, precedent under Nuremberg for trying lawyers: the 'lawyers' Trial' followed that of the 'Major War Criminals.' Those Nazi jurists did not get a free pass at Nuremberg by invoking their good-faith professional opinion that Article 49 permitted the government and its Fuhrer to exercise unlimited powers. But the post-9/11 OLC [Office of legal Counsel] did not even claim to be following orders issued under an emergency--it purported to give its independent legal opinion that Bush administration officials cold not be prosecuted for the acts about which its advice was sought. OLC attorneys would be liable for malpractice if they did not advise their clients that whether an opinion letter from the could defeat Nuremberg-based prosecutions in U.S. (ad especially non-U.S) courts was merely untested legal theory, which presupposed that there would otherwise be liability. If the purpose of giving bad (or incomplete) advice was to induce its recipients to do as they were told, then the lawyers could be charged as accessories to whatever violations of human rights were subsequently committed." "The core meaning of Nuremberg is that officials, top to bottom, can be held responsible for failure to question orders that are prima facie violations of international criminal law. Encouraging underlings to document and question illegal orders (as FBI officials actually did) is perhaps the strongest reason in favor of prosecuting those above. Those who take it as reason not to prosecute do not, ultimately, want a human rights culture that would make violations more difficult in the next emergency and future prosecutions less necessary. In such a culture people would do the right thing when it matters. Id. at 284-285. This is a very thoughtful read. Please read!).

Theda Skocpol & Vanessa Williamson, The Tea Party and the Remaking of Republican Conservatism (Oxford & New York: Oxford U. Press, 2012) ("The more pathological aspects of Tea Party activism are arguably fueled by the content of right-wing media programming, above all the putative news delivered on Fox television. Well before the Tea Party burst on the scene, scholars looked into the content of Fox broadcasts, including so-called news coverage as well as interpretative programs. They established that Fox often propagates falsehoods, in many cases apparently as a deliberate editorial policy. The result is a viewership that knows less and believes many mistaken things about public affairs." "Fox News makes viewers both more conservative and less informed. . . . Watch a day of Fox, and you will have the impression that illegal immigrants, criminals, and badly behaving people of color are overrunning America. You will also get the impression that federal officials and liberals are constantly plotting to take away the rights and ruin the family finances of regular Americans--all to aggrandize themselves and take care of 'freeloading' supporters. You will hear dire warnings about the supposedly imminent collapse of the national economy and U.S. currency (and commercials will urge you to buy gold to ward off disaster in the looming economic collapse)." Id. at 201-202. "At a Tea Party meeting in Massachusetts, people discussed the possibility that the 'SmartGrid' (an infrastructure improvement to the electricity grid, a plan approximately as controversial as road repair) was in fact a plan that would give the government control over the thermostats in people's homes. We wondered how such an outlandish conspiracy theory could have been accepted by the intelligent and well-educated people at this meeting--until we checked the Fox News transcripts. Glenn Beck had indeed raised this weird possibility on his show." Id at 202. From the bookjacket: "In this penetrating new study, Harvard University's Theda Skocpol and Vanessa Williamson go beyond images of protesters in colonial costumes to provide a nuanced portrait of the Tea party. What they find is sometimes surprising. Drawing on grassroots interviews and visits to local meetings in several regions, they find that older, middle-class Tea Partiers mostly approve of Social Security, Medicare, and generous benefits for military veterans. Their opposition to 'big government' entails reluctance to pay taxes to help people viewed as undeserving 'freeloaders'--including immigrants, lower income earners, and the young. At the national level, Tea Party elites and funders leverage grassroots energy to further longstanding goals such as tax cuts for the wealthy, deregulation of business, and privatization of the very same Social Security and Medicare programs on which many grassroots Tea Partiers depend. Elites and grassroots are nevertheless united in their hatred of Barack Obama and determination to push the Republican party to the right.").

Robert Wuthnow, Red State Religion: Faith and Politics n America's Heartland (Princeton & Oxford: Princeton U. Press, 2012) (Oh Kansas!).

BURMA

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Thant Myint-U, Were China Meets India: Burma and the New Crossroads of Asia (New York: Farrar, Straus & Giroux, 2011) (" 'We know that India can't balance China for us', one former Burmese officer told me. . . The relative decline of the West is often exaggerated. The West is still far richer, its universities second-to-none and the armed forces of the United States have no parallel. But here, in this small but strategic slice of Asia, the post-Western world is perhaps more evident than anywhere else. Walking around in Maymyo, the West seems more a memory and something very far away, sanctions and boycotts having kept out business and aid programmes that would otherwise exist, leaving the landscape to be crafted by others. The money to be made, the fears to be addressed, the relations that need to be fostered, have become Asian, and close at hand." Id. at 74-75. Also, see James Fallows, "Political Frontier," NYT Book Review, Sunday, 10/23/2011.).

WHERE BIG GOVERNMENT, AND THE ADMINISTRATIVE STATE, REALLY GOT ITS HEFT

2012-01-22T23:01:00.000Z

James T. Sparrow, Warfare State: World War II Americans and the Age of Big Government (New York & Oxford: Oxford U. Press, 2011) (From the bookjacket: "Although common wisdom and much scholarship assume that ;bug government' gained its foothold in the United States during the auspices of the new Deal during the Great Depression, in fact it was the Second World War that accomplished this feat. Indeed, as the federal government mobilized for war it grew tenfold, quickly dwarfing the New Deal's welfare programs." "Warfare State shows how the federal government vastly expanded its influence over American society during World War II. Equally important, it looks at how and why Americans adapted to this expansion of authority. Through mass participation in military service, war work, rationing, price control, income taxation, and the war bond program, ordinary Americans learned to live with the warfare state. The accepted these new obligations because the government encouraged all citizens to think of themselves as personally connected to the battle front, linking their every action to the fate of the combat soldier. As they worked for the American Soldier, Americans habituated themselves to the authority of the government. Citizens made their own counterclaims on the state--particularly in the case of industrial workers, women, African Americans, and most o all, the soldiers. Their demands for fuller citizenship offer important insights into the relationship between citizen morale, the uses of patriotism, and the legitimacy of the state in wartime" "World War II forged a new bond between citizens, nation, and the government. Warfare State tells the story of this dramatic transformation in American life." As one reads this, one cannot help but wonder what transformation in the bond between citizens, nation, and government the twenty-first-century War-on-Terror State will bring. "In the Reagan eighties, when rhetorical and programmatic assaults on 'big government' began to dominate national political life, Democratic senator Fritz Hollings liked to tell a parable about the paradox that had taken over national politics by then: 'A veteran returning from Korea went to college to college on the GI Bill; bought his house with an FHA loan; saw his kids born in a VA hospital; started a business with an SBA loan; got electricity from TVA and, later, water from an EPA project. His parents, on Social Security, retired to a farm, got electricity from REA and had their soil tested by USDA. When his father became ill, the family was saved from financial ruin by Medicare and a life was saved with a drug developed through NIH. His kids participated in the school lunch program, learned physics from teachers trained in an NSF program and went to college with guaranteed student loans. He drove to work on the Interstate and moored his boat in a channel dredged by Army engineers. When floods hit, he took Amtrak to Washington to apply for disaster relief, and spent some time in the Smithsonian museums. Then one day he got mad: he wrote his congressman an angry letter. 'Get the government off my back,' he wrote. 'I'm tired of paying for all those programs created for ungrateful people.' " Id. at 358-359. What did the old lady say? "Keep your government hands off my Medicare!" We have no shame, and certainly no sense of irony and paradox.).

A NOVEL THEORY OF INTERNATIONAL JUSTICE

2012-01-22T22:57:00.000Z

Andrew Altman & Christoper Heath Wellman, A Liberal Theory of International Justice (Oxford & New York: Oxford U. Press, 2009) ("This book advances a theory of international justice. The theory is a liberal one in that it places the individual and her rights at center stage and insists that political states are legitimate if they adequately protect the human rights of their constituents and respect the rights of others. It is not uncommon to insist that a state enjoys authority over its individual members if it satisfactorily protects their rights, but it is becoming increasingly controversial to suppose that any state has a moral right against the rest of the world to order its affairs as it sees fit. In other words, while few doubt that a state may justifiably coerce its constituents when this coercion is necessary to adequately secure their human rights, thinkers increasingly defend a certain form of cosmopolitanism, arguing that every state has a moral right of political self-determination that not only grounds its authority over its own members, but also absolves it of any duty to alienate its sovereign powers to international arrangements. As long as state adequately protects and respects human rights, it possesses such a right of self-determination Moreover, we contend that this right of self-determination is irreducibly collective and so held by the group of persons who constitute the stare. The theory is thus quite distinctive insofar as it combines the orthodox liberal notion that the lives of individuals are what ultimately matter morally with eh putatively anti0liberal idea of an irreducibly collective right of self-governance." "In the course of exploring the implications of our theory, we address issues of justice that arise in a world of politically independent, modern states. In particular, we seek to illuminate and answer questions relating to democracy, political self-determination, secession, international criminal law, armed intervention, political assassination, global distributive justice, and immigration. Some of the views we defend run against the grain of current academic opinion. Here are some example: there is no human right to democracy; separatist groups can be morally entitled to secede from legitimate states; the fact that it is a matter of brute luck whether one is born in a wealthy state or a poor one does not mean that economic inequalities across states must be minimized or even kept within certain limits; most existing states have no right against armed intervention; and it is morally permissible for a legitimate state to exclude all would-be migrants. Id. at 1-2. It should not surprise the readers of this blog that "The Cosmopolitan Lawyer" would tend to advance some form of egalitarian cosmopolitanism, a position which Altman and Wellman explicitly reject. "An increasing number of theorists are coming to espouse what might be called 'egalitarian cosmopolitanism,' the view that it is unjust for a person's life prospects to be substantially affected by the country in which he or she happens to be born. We reject this position. A reasonable egalitarian principle of distributive justice would not require the elimination of the effects of brute luck on the lives of individuals. Rather, it would demand the elimination of conditions, whatever their origins, that make the less advantages vulnerable to exploitation and oppression at the hands of the more advantaged. It is perfectly possible, even in today's increasingly globalized world, for different states to have very different level of average wealth, without the less wealthy being vulnerable to oppression by the more wealthy. Despite resisting egalitarian cosmopolitanism, however, we do not defend anything like the status quo. Among the many things seriously objectionable about the global economic system is the fact that the citizens of wealthy states fail to meet their minimal samaritan duties to assist the hundreds of millions of people who live and dies in absolute poverty." Id. at 9-10. Much food for thought!).

DEBATING THE MORALITY OF RESTRICTIVE IMMIGRATION POLICY

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Christopher Heath Wellman & Phillip Cole, Debating the Ethics of Immigration: Is There a Right to Exclude? (Oxford & New York: Oxford U. Press, 2011) ("In this volume we articulate and defend opposing positions on the ethics of immigration. Wellman defends a legitimate state's right to exclude outsiders, and Cole counters that countries have no moral right to prevent people form crossing their borders. While each author aims to advance the current debate among professional philosophers, lawyers, and political theorists, we have taken pains to write in clear, jargon-free language. Thus, while this book will no doubt be of interest to professionals working on the topic, it has been designed and written expressly for adoption in any graduate or undergraduate course that seeks to explore the morality of immigration." Id. at 3. Highly recommended for law students seriously interested in thinking through , and thinking deeply or philosophically about, immigration policy. Cole writes: "I have always understood philosophy as the activity of critically questioning the fundamental assumptions that shape our worldviews, which are very often hidden within those worldviews and taken for granted in everyday life and commonsense thinking. Some of these assumptions are highly abstract, such as the assumption that when you leave the room you are in, its contents will continue to exist just as you perceive them now (an assumption which on philosophical reflection, turns out to be highly questionable). Others are more practical, and many of the arguments that states have the right to control immigration are based around these kinds of 'commonsense' assumptions about what the world is, and can be, like. Philosophy is about thinking about these core beliefs and subjecting them to critical scrutiny. Of course there is a dispute about what this can achieve, Some would say the end result is that we demonstrate which of these beliefs are true; while others would say that all we can do is show that some of these beliefs are reasonably plausible. I take a mixed view, that in some cases a belief can be shown to be true, and in other reasonable plausibility is the best we can do. But even if all we can say is that a belief is implausible and unreasonable, we have given people a good reason not to hold it." Id. at 166-167. With law schools' increasing and misguided emphasis on rendering their graduates "practice ready," there will be an increased focus on the practical. And, there will be a decline in giving meaningful scrutiny to ideas and seriously questioning law students' worldviews. The law, the legal profession, lawyers, and society will be worse off as a result.).

FOR SOME REMEMBRANCE DAY

2012-01-22T22:26:00.000Z

Tadeusz Borowski, This Way for the Gas, Ladies and Gentlemen, selected and translated from the Polish by Barbara Vedder; with an Introduction by Jan Kott, translated by Michel (New York: Penguin Books, 1976) (From "Auschwitz, Our Home (A Letter)": "Much of what I once said was naive, immature. And it seems to me now that perhaps we were not really wasting time. Despite the madness of war, we lived for a world that would be different. For a better world to come when all this is over. And perhaps even our being here is a step towards that world. Do you really think that, without the hope that such a world is possible, that the rights of man will be restored again, we could stand the concentration camp even for one day? It is that very hope that makes people go without a murmur to the gas chambers, keeps them from risking a revolt, paralyses them into numb inactivity. It is hope that breaks down family ties, makes mothers renounce their children, or wives sell their bodies for bread, or husbands kill. It is hope that compels man to hold on to one more day of life, because that day may be the day of liberation. Ah, and not even the hope for a different, better world, but simply for life, a life of peace and rest. Never before in the history of mankind has hope been stronger than man, but never also has it done so much harm as it has in this war, in this concentration camp. We were never taught how to give up hope, and this is why today we perish in gas chambers." Id. at 121-122. From the bookcover: "Published in Poland after World War II, Tadeusz Borowski's concentration-camp stories show atrocious crimes becoming an unremarkable part of a daily routine. Prisoners eat, work, sleep, and fall in love a few yards from where other prisoners are systematically slaughtered. The will to survive overrides compassion, and the line between the normal and and the abnormal wavers, then vanishes. At Auschwitz an athletic field and a brothel flank the crematoriums. Himself a concentration-camp victim, Borowski understood what human beings will do to endure the unendurable As one critic observed: 'Borowski looks at the concentration camp as if it were first of all a community of men and women, governed by unalterable instincts and formed by necessary habits. The constant need for human contact--in the persecutors as well as in the condemned--the clinging to ridiculous hopes and useless possessions; and at the same time the grotesque corruption that become accepted as the consequence of the gift for survival. These terse descriptions, almost anecdotal in form, become an oblique commentary on the negotiations we conduct daily in our own, civilized ways.' ").

Ernst Junger, Storm of Steel, translated from the German and with an Introduction by Michael Hofmann (New York: Penguin Books, 2004) ("The Great Battle was a turning-point for me, and not merely because from then on I thought it possible that we might actually lose the war." "The incredible massing of forces in the hour of destiny, to fight for a distant future, and the violence it so surprisingly, stunningly unleashed, had taken me for the first time into the depths of something that was more than mere personal experience. That was what distinguished it from what I had been through before; it was an initiation that had not only opened the red-hot chambers of dread but had also led me through them." Id. at 255-256.).

MIGHT A STRONG ARGUMENT BE MADE THAT TWENTY-FIRST-CENTURY AMERICA IS SUFFERING AN ACUTE CASE OF BEING IN THE 'PARANOID POSITION?"

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Eli Sagan, The Honey and the Hemlock: Democracy and Paranoia in Ancient Athens and Modern America (New York: Basic Books, 1991) ("Essential to the theoretical ground of this book is the concept that--as far as the relationship of the psyche and the world is concerned--there exists a crucial developmental sequence: (1) paranoia, (2) the paranoid position, and (3) overcoming the paranoid position. Clearly the sequence represents an advance in psychic maturity and health. As in all developmental psychological theory the telos of development is a psyche reasonably free of pathology. The essential problematic, nonetheless, is that paranoia and the paranoid position represent stages in the viewing of reality that every psyche goes through,. Though as adults we no longer suffer from paranoia, it was once, for all of us, the normal expectable condition We have grown out of it but it remains accurate to say, in a metaphorical manner, that we are all born paranoid. It is the mission of 'good enough' nurturing, aided by those constitutional aspects of the psyche that are able to strive toward health, to help us overcome the paranoid position. All nonpsychotic adults have succeeded, more or less, in going beyond the paranoid position. The question if he degree to which this psychic work has been successfully accomplished i crucial." "All adults remain paranoid to some degree or other. Even the most efficacious nurturing, combined with the most fortunate temperament, will leave some significant residue of the paranoid position in the adult psyche." "The degree of paranoid world views determining the value system of society is of crucial importance fr any valid theory of social evolution. Social evolution, progressing through various stages in society, can be conceived of as a diminution of paranoid response and action, , , So, too, with the development from authoritarian society to democratic society. It will be argued here that democratic society, even the imperfect democracy we simultaneously enjoy and deplore, represents the least paranoid of any form of society yet seen." Id. at 14-15. Yet, is it not the case that many commentators have suggested that the United States, supposedly the premier democracy, is itself slipping toward authoritarianism as a defense in the so-called war against terror? Or, for that matter, addressing just about any social problem including, the expanding wealth gap, immigration, education, abortion, labor-management relations. "The quintessential overriding concern of the paranoid position is the question of control. Who is controlling whom? Are they controlling me or am I controlling them? The aim of all paranoid thought and action is to get a firm grip on that which controls the world. The anxiety, mental and actual, is directed toward obtaining a certain kind of controlling power. All manifestation's of the radical paranoid position are either shrill laments that we have lost, or are losing, controlling power or fantastical attempts to regain it." Id. at 16. Think about the draconian immigration policies implements by or in some states, e.g., Mississippi, Arizona, Alabama, to regain control of their borders. "The fundamental paranoid view is that the world, and those who people it, are untrustworthy. Erik Erikson regards the task of the first period of a child's life as acquiring the quality of basic trust. The paranoid learns the exact opposite lesson; basic distrust is the ground of his or her being. Conspirators and traitors are everywhere. There is no loyal opposition. Those of contrary political positions are not, as the democratic view would have it, entitled to their opinion, since their opinions are traitorous. . . ." . Id. at 16-17. Is not that the state of American politics, the gridlock resulting from no one willing to compromise because the other side is viewed as being untrustworthy, unAmerican, or whatever? "All regressions from democracy involve the reassertion of the fundamental paranoid position. No democracy is possible unless a large group of people in society have the capacity to live without the defenses of authoritarianism, militarism, and dogmatic ideology>' "Paranoia is the problem. The paranoid position is the defense. Democracy is a miracle, considering human psychological disabilities." Id. at 22. "The paranoid position is intensely personal. All evil wears a specific human face. The individual suffering from paranoia may believe in malicious cosmic forces disrupting and poisoning the world, but the paranoid sees a person or persons behind all life's evils. . . : "Loyalty for the paranoid is always primarily loyalty to a person, the czar, the dictator, or the religious leader, not to an abstract image of freedom or tolerance or, most especially, law. In a democracy it matters not whether you like or dislike your neighbors, or whether you believe that their motives are honorable. What matters is that they are entitled to the protection of the law, just as you are. The law is impersonal, beyond persons, universal. True paranoids are incapable of this imaginative leap. They are only able to live in a society with people whom they like or who think in the same way. When the paranoid severely regresses to paranoia itself, the extermination of those in society who are different becomes a necessity. Differences among people can be tolerated only by achieving an abstract conception of personhood. One must respond to the abstract, generalized human quality of those who superficially differ from one. Paranoids cannot do this. They suffer from a xenophobia directed internally into society; security and comfort reside only in a completely homogeneous world." Id. at 23-24. In this second decade of the twenty-first century, capitalism is under suspicion due to the economic meltdowns across the globe (the United States, Great Britain, Spain, Italy, Greece, Portugal, and whoever is next. The wealth gap has significantly widen in the United States, such that the underclass is almost hopelessly damned, the middle class is shrinking and, to mix my metaphors, barely keeping its nose above the water line, while the rich become richer, and the superrich become even more super. Yet . . . "When liberalism introduced the second stage of democratic society in the seventeenth and eighteenth centuries, the marriage of capitalism and liberal democracy produced some strange progeny. In the ancient world even the most conservative of thinkers like Plato and Aristides were seriously bothered by the extremes of wealth and poverty, but the main concern of later liberal thinkers was whether the poor were entitled to vote. The enthronement of individualism buried the deep concern for the commonwealth and the common health of the polis that had been second nature to any thinking person in the ancient democratic world. The loss of this deep commitment to community has caused some modern thinkers to exaggerate the virtue of the polis , ignoring its conflicts and profound contradictions. If the second stage of democracy--liberal, bourgeois, capitalist--is to be transformed into something more just, it will have to learn what was obvious to those who lived in the polis: Great wealth is a problematic for democratic society--great poverty is a catastrophe." Id. at 289. Written twenty years ago, and still providing much food for thought. That is, if anyone is listening. But, then again, paranoids tend not to listen to those who have a different point of view.).

DEMOCRACY CASTRATED, WILLFUL ILLITERACY, AND WESTERN CIVILIZATION UNDOING ITSELF

2012-01-22T22:17:00.000Z

John Ralston Saul, Voltaire's Bastards: The Dictatorship of Reason in the West (New York: Basic Books, 1992) (This is one of those sadly wonderful books. "Wonderful' because it gets it, and gets the reader to get it. 'Sadly' because what is gotten, the truth that is gotten to, is a tragic misfortune: the West destroying itself by its own misguided successes. Although published twenty years ago, the insights of this book remain most relevant today. Many of the historical events of the two to five decades ago, which Saul uses to demonstrate a point, could be made with more recent events of the last two decades, if not just the last five years. In short, the downward trend that Saul describes has continued, has worsen, since we have entered the twenty-first century, since the events of September 11, 2001, since the war in Iraq and Afghanistan, since, the economic meltdown of 2007 which continues today. "Our society contains no method of serious self-criticism for the simple reason that it is now a self-justifying system which generates its own logic." Id. at 21. "The case of government is more complex. There has been a gradual, widespread improvement in social standards, thanks in good part to the work of large bureaucracies. But the conversion of the political class into an extension of the technocracy has been a disaster. Perhaps the most damaging part of our obsession with expertise and systems has been the restructuring of elected assemblies to make them more efficient. The equation if the idea of efficiency--a third-level subproduct of reason--with the process of democratic government show =s how far away we have slipped from our common sense. Efficient decision making is, after all, a characteristic proper to authoritarian governments. Napoleon was efficient. Hitler was efficient Efficient democracy can only mean democracy castrated. In fact, the question which arises is whether the rational approach has not removed from democracy its single greatest strength--the ability to act in an unconventional manner. When you examine, for example, our twenty-year old battle against inflation, you can't help but note that politicians who become devotees of technocratic logic also become prisoners of conventional solutions." "It follows that the theology of power, under which the technocracy prospers, marginalizes the whole idea of opposition and therefore that of sensible change. It is irrational, And this trivialization of those who criticize or say no from outside the power structure applies not only to politics but to all organizations." Id. at 27. I can not read the following without thinking about the decline in legal education and the legal profession, especially given the 'new' focus on training law students to be 'practice ready.' "The technocrats of our day make the old aristocratic leaders seem profound and civilized by comparison. The technocrat has been actively--indeed, intensely--trained. But by any standard comprehensible within the tradition of Western civilization, he is virtually illiterate. One of the reasons that he is unable to recognize the necessary relationship between power and morality is that moral traditions are the product of civilization." "Literacy is only defined as the ability to read because the assumption of Western civilization is that man wishes to read in order to participate fully in that civilization. Literacy refers to civilization as a shared experience. One of the signs of a dying civilization is that its language breaks down into exclusive dialects which prevent communication. A growing, healthy civilization uses language as a daily tool to keep the machinery of society moving. The role of responsible, literate elites is to aid and abet that communication." "What then is to be thought of elites who seek above all to develop private dialects? Who seek to communicate as little as possible? Who actively discourage the general population from understanding them? They are proponents of illiteracy." "What is to be thought of doctors, earning several hundred thousand dollars a year, whose annual reading is a at best made up of two or three formula thrillers? Whose political understanding is limited to a schematic view of Capitalism versus Socialism? Who, by virtue of their profession's internal class system, are increasingly rewarded and admired as their knowledge of medicine narrows? In the nineteenth century, doctors were at the centre of political, social and cultural change. Today, a doctor tends to reach her summit when her view of the human body consciously limits itself to a single organ. Is this woman not illiterate? "What of a full professor of English literature who views fiction as an exercise separate from society? Who encourages such ideas as deconstructionism, which render literature inaccessible except to the most intimately initiated? Who seeks to destroy the great populist tradition of literature as a weapon used in the forefront of social change? Who recognizes in modern literature only those forms incomprehensible to the outsider? Who recognizes as proper subjects for literature only subjects distant from the world of the citizen? And in the process, who becomes himself incapable of understanding the movements of the outer world? Is he any more literate than, say, a small farmer who cannot read but who has an immediate and real understanding of the world about him?" "What of the banker or economist, called upon to make real decisions about the evolution of his society's economy in a time of instability and inflation, who either has never heard of John Law or has endeavoured to forget who he was and what he did? He probably thinks even less about the nineteenth-century railway 'bubbles' or the crash of the 1880s. What does it mean when he talks seriously of the catastrophe which awaits if debts are forgiven, given that he doesn't know that the entire strength and civilization of Athens--upon which we still model Western civilization--was created through Solon's wiping out of all cripplingly loans? Or indeed that America's economic strength in the twentieth century was in great part the result of constant financial defaultings during the nineteenth?" "None of this is illiteracy as we normally understand it. Perhaps the right term is willful illiteracy. It isn't surprising that the modern manager has difficulty leading steadily in a specific direction over a long period of time. He has no idea where we are or where we've come from. What's more, he doesn't want to know, because that kind of knowledge hampers his kind of action." "Instead he has learned to disguise this inner void in ways which create a false impression of wisdom. Voltaire had a genius for deflating the credibility and thus destroying the legitimacy of established power. His weapon was words so simple that anyone could understand and repeat them. Genius, unfortunately, is something which can't be passed on. Voltaire did however introduce an auxiliary weapon which was perfectly transferable. Scepticism It was a useful tool when applying common sense to the unexplainable mysteries of established power. Scepticism was something that most men of average intelligence could handle. It was to become the great shared tool of the new rational elites. "But it is virtually impossible to maintain healthy scepticism when power is in your hands. . . . " Id. at 11o-112. Reread all of that, substituting law, lawyers, etc., in the appropriate places. How can the legal profession be at the center of our civilization, of our political, social, economic, well-being, if even elite lawyers are willfully illiterate? "Not only have the humanities been singled out as the enemy of reason, but there has been a serious attempt to co-opt them by transforming each sector into a science. Thus architecture has become a quantitative, technological formation in which the details add up to the building. Even art history has been converted from a study of beauty and craft into a mathematical view of creativity. The new art historians are interested not so much in art or in history as in technical evolution. The social sciences, new creations of the mathematical obsession, are of course the principal example of the humanities deformed. The reduction of politics, economics, social problems and the arts to mathematical visions and obscure, hermetically sealed vocabularies may well be looked upon by those who come after us as one of the greatest follies of our civilization." "The removal of the humanities from education has undermined common sense and restraint and thus encouraged us to lurch from extreme to extreme in public policy. And yet there is still too much of the humanities in education to suit the technocratic elites. They blame the troubles of state-funded education on this." Id. at 130-131. "The essence of Corporatism is that each group has its own purpose, organization and financial strength. These group interests negate democracy, which depends in the contribution of individual citizens. It was generally believed that the last world war had defeated Corporatism. But the growing democratic void has enabled organized interests to occupy more and more of the structures of Western political leadership in the name--astonishingly enough--of the individual voter frustrated as he or she is by the rational state. Thus, beneath the guise of populist rhetoric, the democratic system has turned increasingly to the service of specific interests. It is a remarkable confidence trick in which voters have begun voluntarily handing their gains of the last two centuries back over to the same small groups--or their modern equivalents--which for so long were the principal beneficiaries of a grossly inequitable civilization." Id. at 234-235. "Free enterprise throughout the West is dominated by employees, more and more the products of business school training or an equivalent. Like bureaucrats, they do not lean naturally towards the inventive approach--neither inventive investment, nor developing goods, nor winning markets by selling goods. They specialize in developing systems within which they can operate and in producing tight programs which are modelled upon the case study approach. They are invariably eager to change circumstance and to force it into a set pattern." "An individual who stands out, disagrees or takes risks is a danger to such systems and is effortlessly, unconsciously sidelined. The top management of large Western corporations and multinationals has been chosen by the system--because the system have an inbred logic--for their mediocrity. There are exceptions, of course. But there are exceptions to everything. . . . " Id. at 364-365 "A glance at our contemporary situation indicates that while the area of greatest economic expansion is in the service of self-indulgence, growing percentages of the population are slipping back into pre-twentieth-century poverty." "And there lies the real paradox of modern capitalism. It is masterful at producing services people don't need and in large part probably don't want. It is brilliant at convincing people that they do need and want them. But it has difficulty turning itself to the production of those services of those services which people really do need. Not only that, it often spends an enormous amount of time and effort convincing people that these services are either unrealistic, marginal or counterproductive. Never have our skills of organization been so developed, never have our desires for the accumulation of objects and comforts been so realizable, and never have events seemed so difficult to control. In other words, a rational economics structure finds it very difficult to give people what they really want because real human demand does not follow a fixed pattern. Giving people what they what is inefficient because it is irrational. On the other hand, it is efficient to give people what they do not want, because an artificial sales structure can ensure some rational buying patterns. Id. at 383. Being in law, let me end with a little Learned Hand. "The fixation of most eighteenth-century thinkers on inviolable legal codes was produced by two factors: their desire to end the intolerable rule of arbitrary, absolute authority and their belief in some sort of social contract.. Their assumptions was that this contract would automatically encapsulate and defend acceptable social standards. . . ." "Even so, to a minority these dreams of justice, rendered absolute by the application of unfettered intelligence, seemed dangerous dissociated from the realities of human society. Rousseau, for example, reacted by attempting to reattach the new legal concepts to their roots--that is, to humanity. . . . In the 1950s that idea was still being expressed by Learned hand, the greatest American judge of his day and a constant advocate of social justice. Surrounded by the explosion of regulation, he wrote" 'I often wonder whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there no constitution, no law, no court can save it.' . . . " Id. at 324 (citing Learned Hand, The Spirit of Liberty: Papers and Addresses of Learned Hand (Chicago: University of Chicago Press, 1952), 189). Has liberty itself, as opposed to the mere rhetoric of liberty, died in the American heart?).

ON THE NEED TO BALANCE COMMON SENSE, ETHICS, INTUITION, AND IMAGINATION

2012-01-22T22:07:00.000Z

John Ralston Saul. On Equilibrium (Toronto: Penguin/Viking, 2001) ("The Romans were calmly accurate about shared knowledge. It is a sensibility. It is part of humanity; that is, of society. 'If you haven't got it,' Harry Truman used to say, 'the best thing to do is not get out of bed in the morning.' " "So [shared knowledge or common sense] is useful, but not utilitarian. There is a danger in confusing these two, which is related to the danger of taking common sense on its own, without context. Without the correcting reflections of the other qualities, you quickly end up mired in the lowest forms of utilitarianism. Education turns from learning to training. Justice is reduced to the law and its letter. Health policy is reduced to isolated attacks of sickness." "This slippage begins with the tempting idea that what matters is just getting on with things--'Let's just get it done!' " "Before you know it, you are deep within pure self-interest and corporatism. This leads to an obsession with the mechanics of action--the trains will run on time syndrome. By then you're ready to become a slave to any ideology which, by mysterious or mythological means, has a clear view of what must be done. There are a number of Western governments, democratically elected at various levels, which fall precisely into this category." "One of the ways of confronting this false common sense is to look at early fascism--before it could afford its military spectacles and false grandeur. If you peel away the seedy, demented, low-level ambitions from these early descriptions, what remains is a utilitarian core, essentially corporatist. Suddenly you notice how eerily similar Mussolini's approach was to what has become our everyday politics. For a start, his party remained an anti-party, anti-government movement through decades of holding power. No matter how big and structured the Fascist Party became, it always declared itself to be the voice of the anti-party and anti-government politics. Mussolini's was the first of the modern anti-government governments." "It was a method copied almost phrase for phrase in the creation of the false-populist model which developed from the 1970s on and led to a series of powerful governments all over the democratic world. The obvious contradictions would eventually catch up with each country. What began with Reagan and Thatcher proved so politically easy to use that--even in the most political and party and governmental of political party governments--we continue to hear the call for anti-government government." Id. at 35-36. The Tea Party. "You will notice the natural tendency of societies veering away from ethics--away from responsible individualism--to lament the lack of Heroes and Leaders, as if the role of Hero is to allow us to become followers. Every day the heroic act is banalized to refer to sports stars, actors, business leaders and Guiness-Book-of-Records-style adventurers." Id. at 77. From the bookjacket: "Saul argues that when certain human qualities are worshipped in isolation they become weaknesses, even forces of destruction or self-destruction. I short, they become ideologies. But as he explores the qualities he has identified as being necessary ti integrated human behaviour, he shows us that the key is to use these qualities in combination." "How can we use these qualities as positive forces in our own lives? In the life of our society? How can we use them so that each builds upon the other in order to reinforce us as humans?" "Balance." "On Equilibrium is an intelligent, persuasive and controversial exploration of the essential qualities of humanity and how they can be used to achieve equilibrium for the self and to foster an ethical society. It is at once an attack on our weakness for ideologies and a manual for human action." I could not help but relate this work to the present state of legal academia and its love-fest with the ideology of 'practice-readiness' aim of legal education. It is corporatist, fascist, and false-populism.).

IT IS COMPLICATED, . . . STILL THERE IS NO PLACE LIKE HOME.

2012-01-22T22:03:00.000Z

Mark Whitaker, My Long Trip Home: A Family Memoir (New York: Simon & Schuster, 2011) (From the bookjacket: "His father, 'Syl' Whitaker was the charismatic grandson of slaves who grew up the child of black undertakers from Pittsburgh and went on to become a groundbreaking scholar of Africa. His mother, Jenne Theis, was a shy World War II refugee from France whose father, a Huguenot pastor, helped hide thousands of Jews from the Nazis and Vichy police. They met in the mid-1950s, when he was a college student and she his professor, and they carried on a secret romance for more than a year before marrying and having two boys. Eventually they spit in a bitter divorce that was followed by decades of unhappiness as his mother coped with self-recrimination and depression while trying to raise her sons by herself, and his father spiraled into an alcoholic descent that destroyed his one meteoric career." "Based on extensive interviews and documentary research as well as his own personal recollections and insights, My Long Trip Home is a reporter's search for the factual and emotional truth about a complicated and compelling family, a successful adult's exploration of how he rose from a turbulent childhood to a groundbreaking career, and, ultimately, a son's haunting meditation on the nature of love, loss, identity, and forgiveness.").

SUGGESTED FICTION, ETC.

2012-01-22T21:18:00.000Z

Kate Atkinson, Case Histories: A Novel (New York & Boston: Little, Brown, 2004).

Kate Atkinson, One Good Turn: A Novel (New York & Boston: Little, Brown, 2006).

Kate Atkinson, When Will There Be Good News?: A Novel (New York & Boston: Little Brown, 2008).

Amitav Ghosh, The Calcutta Chromosome: A Novel of Fevers, Delirium and Discovery (Delhi: Ravi Dayal, 1996).

Amitav Ghosh, The Glass Palace: A Novel (New York: Random House, 2001).

Peter Nadas, Fire and Knowledge: Fiction and Essays, translated from the Hungarian by Imre Goldstein (New York: Farrar, Straus & Giroux, 2007).

Peter Nadas, Love: A Novel, translated from the Hungarian by Imre Goldstein (New York: Farrar, Straus & Giroux, 1979, 2000).

Per Petterson, I Curse the River of Time: A Novel, translated from the Norwegian by Charlotte Barslund with Per Petterson (Minneapolis: Graywolf Press, 2010).

Per Petterson, To Siberia, translated from the Norwegian by Anne Born (Saint paul: Graywolf Press, 2008).

Marcel Theroux, Far North: A Novel(New York: Farrar, Straus & Giroux, 2009).

READINGS OF LITTLE INTEREST TO (MOST) LAW STUDENTS

2012-01-22T21:06:00.000Z

Michael Dirda, On Conan Doyle, or, The Whole Art of Storytelling (Princeton & Oxford; Princeton U. Press, 2012).

Geoffrey M. Hodgson & Thorbjorn Knudsen, Darwin's Conjecture: The Search for General Principles of Social and Economic Evolution (Chicago & London: U. Chicago Press, 2010) (From the bookjacket: "The principles of Darwinism, which involve variation, inheritance, and selection, are increasingly of interest to social scientist. But no one has provided a truly rigorous account of how the principles apply to the evolution of human society--until now." "In Darwin's Conje cture, Geoffrey M. Hodgson and Thorbjorn Knudsen reveal how these core concepts apply to a wide range of social phenomena, including business practices, legal systems, technology, and even science itself. They also critique some prominent objections to applying Darwin to social science, arguing that ultimately Darwinism functions as a general theoretical framework for stimulating further inquiry. Social scientists who adopt a Darwinian approach, they contend, can then use it to develop new explanatory theories and predictive models.").

Michel Pastoureau, The Bear: History of a Fallen King, translated from the French by George Holoch (Cambridge, Massachusetts; & London, England: Belknap/Harvard U. Press, 2011) ("Humankind and its societies, as I have pointed out throughout this book, seem haunted by the memory, more or less conscious, of the ancient times when space and prey was shared with bears, when they had the same fears and the same caves, sometimes the same dreams and the same beds. Indeed, humans and bears have always been inseparable, united by a kinship that gradually moved from nature to culture, and they have remained so down to the present." Id. at 252.).

Robert Pinsky, Selected Poems (New York: Farrar, Straus & Giroux, 2011).

REREADING NADINE GORDIMER

2012-01-22T20:33:00.000Z

Nadine Gordimer, Burger's Daughter: A Novel (New York: Viking, 1979) ("It's not peace at any price, it's peace for each at his price. White liberalism will sacrifice the long odds on attaining social justice and settle for letting blacks into the exploiting class. The 'enlightened' government crowd will sacrifice the long odds on maintaining complete white supremacy and settle for propping up a black middle class whose class interests run counter to a black revolution." Id. at 156.).

Nadine Gordimer, The House Gun (New York: Farrar, Straus & Giroux, 1998) ("When she had gone Harald sat on in Motsamai's chambers, looking around the shelves of law books with their paper slips marking relevant pages that might decide--not justice--he was not able to think of justice as he used to--but a way out. The law is a paper-chase whose subsidiary clauses might lead through the forest. . . ." Id. at 58. "The Lindgards were not racists, if racist means having revulsion against skin of a different colour, believing or wanting to believe that anyone who is not your own colour or religion or nationality is intellectually and morally inferior. Claudia surely had her proof that flesh, blood and suffering are the same, under any skin. Harald surely had his proof in his faith that all humans are God's creatures, in Christ's image, none above the other. Yet neither had joined movements, protested, marched in open display, spoken out in defence of these convictions. They thought themselves as simply not that kind of person; as if it were a matter of immutable determination, such as one's blood group, and not failed courage. He did not risk his position in the corporate establishment. Claudia worked at clinics to staunch the wounds racism gashed; she did not risk her own skin by contact, outside the intimate professional one, with the black men and women she treated, neither by offering asylum when she had deduced they were activists on the run from the police, nor by acting as the kind of conduit between revolutionaries her to-and-fro in communities would have made possible. What these people called the struggle--she recognized its necessity, their courage, when she read reports of their actions, in the newspapers; kept away from them outside clinic and surgery hours. Stuck to their own struggle, with disease, and the damage other people caused: yet other people, who tear-gassed and set dogs upon blacks, evicted them from their homes to live in shacks from which old men and women were brought to her dying of pneumonia and children were brought to her dwarfed by malnutrition. She had kept clear of those others, too." Id. at 86-87.).

Nadine Gordimer, July's People: A Novel (New York: Viking, 1981).

Nadine Gordimer, My Son's Story; A Novel (New York: Farrar, Straus & Giroux, 1990) ("I need air. Again the polished corridors, the company of policemen watching sullenly, the bodies of strangers shifted up for along the boney benches of the public gallery, the eagerness with which we follow the expressions of the lawyers, try to penetrate the distancing that the judge, somewhere a man inside his red robes, keeps between himself and all he sees and hears. People downcast by trouble under the lofty spaces--how many times have I gazed up to the fans in the ceiling, stirring the trouble round and round where no pollen scatters renewal. Staleness. All my life, since we left our home outside the mining town, I've been breathing the dead breath of these places where life and freedom are supposed to be protected by the law." Id. at 245-246.).

Nadine Gordimer, None to Accompany Me (New York: Farrar, Straus & Giroux, 1994) ("Zeph Rapulana dines on board the Drommedaris now." "He has moved more or less permanently from Odenville, where he built a home for his family in the temporary settlement area secured, and, leaving the backyard cottage, has taken a house in a modestly afluent suburb vacated by a white couple who have left in the latest count of emigration to America or Australia. What has been abolished along the with the laws of segregation is the law and custom, more deeply entrenched than any law, that only white people could live in these pleasant areas. Anyone who can afford to pay the rent or buy the property may do so now. Many whites who want to see racial prejudice abolished and have applauded its passing nevertheless comment highmindedly whenever a black man or woman is successful enough in their--the whites'--world of professions, finance and business to move into one of the formerly white compounds. There are so many blacks living in degrading poverty, how can a black man live it up with a tree-filled garden, lock-up garage for his car, and neighbourhood security watch? For one to want justice for black people, they must all qualify by being poor. He ought to be living a dozen to a shack without light amid shit running from broken drains. He ought to be standing before a farmer's door shut in his face, saying without menace, non-violently, we won't harm you. Not you or your wife and children. Never. Whatever you do to us. Never. And we'll never penetrate your boardrooms, we'll never enter and take the place behind the desk in the chairman's office, don the robes of the judge, fit the uniform of the commander-in-chief." Id. at 257-258. From the bookjacket: "In an extraordinary period immediately before the first non-racial election and the beginning of majority rule in South Africa, Vera Stark the protagonist of Nadine Gordimer's passionate . . . novel, weaves a ruthless interpretation of her own past into her participation in the present as a lawyer representing blacks in the struggle to reclaim the land. The return of exiles is transforming the city and though the lives of Dudymus Maqoma, his wife Sibingile, and their lovely daughter who cannot even speak her parents' African language, the reader experiences the strange passions reversals, and dangers that accompany new-won access to power.").

Nadine Gordimer, A Sport of Nature (London: Jonathan Cape, 1987).

REREADING J. M. COETZEE FOR A PAPER NOT WRITTEN

2012-01-22T20:17:00.000Z

J. M. Coetzee, Age of Iron: A Novel (New York: Random House, 1990) ("There were not so many of these homeless people in your time. But now they are part of life here. Do they frighten me? On the whole, no. A little begging, a little thieving; dirt, noise, drunkenness; no worse. It is the roaming gangs I rear, the sullen-mouthed boys, rapacious as sharks, on whom the first shade of the prison house is already beginning to close. Children scorning childhood, the time of wonder, the growing time of the soul. Their souls, their organs of wonder, stunted, petrified. And on the other side of the great divide their white cousins soul-stunted too, spinning themselves tighter and tighter into their sleepy cocoons. Swimming lessons, riding lessons, ballet lessons; cricket on the lawn; lives passed within walled gardens guarded by bulldogs; children of paradise, blond, innocent, shinning with angelic light, soft as putti. Their residence the limbo of the unborn, their innocence the innocence of bee grubs, plump and white, drenched in honey, absorbing sweetness through their soft skins. Slumbrous their souls, bliss-filled, abstracted." Id. at 7. "When a ragged stranger comes knocking at the door he is never anything but a derelict, an alcoholic, a lost soul. Yet how, in our heats, we long for these sedate homes of ours to tremble, as in the story, with angelic chanting!" Id. at 14. "This letter is not a baring of my heart. It is a baring of something, but not of my heart." Id. at 15. "There I lay in the dark, listening to the music of the stars and the crackling and humming that accompanied it like the dust of meteors, smiling, my hear filled with gratitude for this good news from afar. The one border they cannot close, I thought: the border upward, between the Republic of South Africa and the empire of the sky. Where I an due to travel. Where no passport is called for." Id. at 23. "I think of those abandoned farmhouses I drove past in the Karoo and on the west coast whose owners decamped to the cities years ago, leaving fronts boarded up, gates locked. How washing flaps on the line, smoke comes from the chimney, children play outside the back door, waving to passing cars. A land in the process of being repossessed, its heirs quietly announcing themselves. A land taken by force, used, despoiled, spoiled, abandoned in its barren late years. Loved too, perhaps, by the ravishers, but loved only in the bloomtime of its youth, and therefore, in the verdict of history, not loved enough." Id. at 25-26. "Every day I attempt it anew, in my heart the flicker of a hope that in this one case, my case, there may have been a mistake. And every day I stop before the same blank wall: death, oblivion. Dr. Syfret in his rooms: 'We must face the truth.' That is to say: We must face the wall, But not he: I." Id. at 26. "Television. Why do I watch it? The parade of politicians every evening: I have only to see the heavy, blank faces so familiar since childhood to feel gloom and nausea. . . . . Sluggish hearts, heavy as blood pudding." "And their message stupidly unchanging, stupidly forever the same, Their feat, after years of etymological mediation on the word, to have raised stupidity to a virtue. To stupefy: to deprive of feeling; to benumb, deaden; to stun with amazement. Stupor: insensibility, apathy, torpor of mind. Stupid: dulled in the faculties, indifferent, destitute of thought or feelings. From stupere, to be stunned, astounded. A gradient from stupid to stunned to astonished, to be turned to stone, The message: that the message never changes. A message that turns people to stone." Id. at 28-29. "Across the courtyard he squatted, smoking, listening. Two souls, his and mine, twined together, ravished. Like insects mating tail to tail, facing away from each other, still except for a pulsing of the thorax that might be mistaken for mere breathing Stillness and ecstasy." Id. at 30. " 'He lives here,' said Florence, 'but he is rubbish. He is good for nothing.' . . . 'He is not a rubbish person,' I said, lowering my voice, speaking to Florence alone. 'There are no rubbish people. We are all people together.' " Id. at 47." 'I keep thinking of what you said the other day: that there are no more mothers and fathers. I can't believe you meant it. Children cannot grow up without mothers or fathers. The burnings and killings one hears of, the shocking callousness, even this matter of beating Mr. Vercueil--whose fault is it in the end? Surely the blame must fall on parents who say, 'Go, do as you wish, you are your own master now, I give up authority over you.' What child in his heart truly wants to be told that? Surely he will turn away in confusion, thinking to himself, 'I have no mother now, I have no father: then let my mother be death, let my father be death.' You wash your hands of them and they turn into the children of death.' " Id. at at 49. "I did not like him. I do not like him. I look into my heart and nowhere do I find any trace of feeling for him. As there are people to whom one spontaneously warms, so there are people to one is, from the first, cold. That is all. . . . " Id. at 78-79. " '. . . Yet how else can one feel? Perhaps I should simply accept that that is how one must live from now on: in a state of shame. Perhaps shame is nothing more than the name for the way I feel all the time. The name for the way in which people live who would prefer to be dead.' " "Shame. Mortification. Death in life." Id. at 86. " 'Why don't you just put down your guns and go home, all of you?' I said. 'Because surely nothing can be worse than what you are doing here. Worse for your souls, I mean.' " Id. at 107. "I am trying to keep a soul alive in times not hospitable to the soul." Id. at 130. "That is my first word, my first confession. I do not want to die in the state I am in, in a state of ugliness. I want to be saved. How shall I be saved? By doing what I do not want to do. That is the first step" that I know. I must love, first of all, the unlovable. I must love, for instance, this child. Not bright little Bheki, but this one. He is here for a reason He is part of my salvation, I must love him. But I do not love him. Nor do I want to love him enough to love him despite myself." "It is because I do not with a full enough heart want to be otherwise that I am still wandering in a fog." "I cannot find it in my heart to love, to want to love, to want to want to love." "I am dying because in my heart I do not want to live. I am dying because I want to die." "Therefore let me utter my second, dubious word. Not wanting to love him, how true can I say my love is for you? For love is not like hunger. Love is never sated, stilled. When one loves, one loves more. The more I love you, the more I ought to love him. The less I love him, the less, perhaps, I love you." Id. at 136-137. " 'Mr. Thabane, let me make one thing clear to you. I am not trying to prescribe to this boy or to anyone else what he should do with his life. He is old enough and self-willed enough to do what he will do. But as for this killing, this bloodletting in the name of comradeship, I detest it with all my heart and soul. I think it is barbarous. That is what I want to say.' " Id. at 149. " 'I am far away, certainly,' I said, 'far away and tiny. Nevertheless, I fear I know comradeship all too well. The Germans had comradeship, and the Japanese, and the Spartans. Shaka's impis too, I am sure. Comradeship is nothing but a mystique of death, of killing and dying, masquerading as what you call a bond (a bond of what? Love? I doubt it). I have no sympathy with this comradeship. You are wrong, you and Florence and everyone else, to be taken in by it and, worse, to encourage it in children, It is just another of those icy, exclusive, death-driven male constructions, That is my opinion.' " Id. at at 150. " 'I have cancer!' I screamed. 'Put me down!' Cancer! What a pleasure to fling the word at them! It stopped them in their tracks like a knife. . . . Gingerly they laid me down on the sofa. 'Where is the pain?' asked the woman, frowning. 'In my heart,' I said. She looked puzzled. 'I have cancer of the heart.' Then she understood; she shook her head as if shaking of flies. 'Does it pain you to be carried?' 'It pains me all the time,' I said. She caught the eye of the man behind me; something passed between them so amusing that she could not keep back a smile. 'I caught it by drinking from the cup of bitterness,' I plunged on. What did it matter if they thought me dotty? 'You will probably catch it too one day. It is hard to escape.' " Id. at 155-156 (format omitted). "But did I want to survive? I was beginning to feel the indifferent peace of an old animal that, sensing its time is near, creeps, cold and sluggish into a hole in the ground where everything will contract to slow thudding of a heart. Behind a concrete pillar, in a place where the sun had not shone for thirty years, I curled up on my good side, listening to the beat of the pain that might as well have been the beat of my pulse." Id. at 157-158. "How is there space for them all? How is there space in the skies for the souls of all the departed? Because, says Marcus Aurelius, they fuse one with another: they burn and fuse and so are returned to the great cycle." "Death after death. Bee ash." Id. at 158. " . . . 'I had miscalculated. Where did the mistake come in? It had something to do with honor, with the notion I clung to through thick and thin, from my education, from my reading that in his soul the honorable man can suffer no harm. I strove always for honor, for a private honor, using shame as my guide, A long as I was ashamed I knew I had not wandered to into dishonor. That was the use of shame: as a touchstone, something that would always be there, something you could come back to like a blind person, to touch, to tell you where you were. For the rest I kept a decent distance from my shame. I did not not wallow in it. Shame never became a shameful pleasure; it never ceased to gnaw me. I was not proud of it, I was ashamed of it. My shame, my own. Ashes in my mouth day after day, which never ceased to taste like ashes. ' " Id. at 165. " 'What I had not calculated on was that more might be called for than to be good. For there are plenty of good people in this country. We are two a penny, we good and nearly good. What the times call for is quite different from goodness. The times call for heroism. . . .' " Id. at 165. "I lay down beside him again, my feet cold and muddy. It was quite light now. On our flattened-out box in the vacant lot we must have been visible to every passerby. That is how we must be in the eyes of the angels: people living in houses of glass, our every act naked, Our hearts naked too, beating in chests of glass. Birdsong poured down like rain." Id. at 166. " 'Then if by chance you have a change of heart,' I said, 'could you telephone a new prescription through to the Avalon Pharmacy in Mill Street. I have no illusions about my condition, doctor. It is not care I need, just help with the pain.' 'And if you change your mind and want to see me at any time, Mrs. Curren, day or night, you have only to pick up the telephone.' An hour later the doorbell rang. It was the deliveryman from the pharmacy bringing a new prescription in a fourteen-day supply." Id. at 183 (format deleted).).

J. M. Coetzee, Giving Offense: Essays on Censorship (Chicago & London: U. of Chicago Press, 1996) ("The most law-abiding countries are not those with the highest prison populations but those with the lowest offender rates. The law, including the law of censorship, has a dream. In this dream, the daily round of identifying and punishing malefactors will wither away; the law and it constraints will be so deeply engraved on the citizenry that individuals will police themselves. Censorship looks forward to the day when writers will censor themselves and the censor himself can retire. It is for this reason that the physical expulsion of the censor, vomited forth as a demon is, has a certain symbolic value for the writer of Romantic genealogy: it stands for a rejection of the dream of reason, the dream of society of laws founded on reason and obeyed because reasonable. Id. at 10-11.).

J. M. Coetzee, Lecture and Speech of Acceptance Upon the Award of the Nobel Prize in Literature, Delivered in Stockholm in December 2003 (New York: Penguin Books, 2003).

J. M. Coetzee, The Master of Petersburg : A Novel (New York: Viking, 1994) (" 'No one will accept that. No one will believe you.' 'Students will believe --you have quite a following among the students, as I told you. Particularly if they don't have to read a fat book to get the message. Students will believe anything.' 'Come on, Sergei Gennadevich!' says the other man. His tone is not amused at all. . . . 'What have you got against books? What have you got against students?' 'What can't be said in one page isn't worth saying. Besides, why should some people sit around in luxury reading books when other people can't read at all? Do you think Sonya next door has time to read books? And students chatter too much. They sit around arguing and dissipating their energy. A university is a place where they teach you to argue so that you'll never actually do anything. . . . Arguing is just a trap. They think that by talking they will make the world better. They don't understand that things have to get worse before they can get better.' His comrade yawns; his indifference seems to goad Nechaev. 'It's true! That is why they have to be provoked! If you leave them to themselves they will always slide back into chattering and debating, and everything will run down. . . . People who are suffering don't need talk, they need to act. Our task is to make them act. If we can provoke them to act, the battle is half won. They may be smashed, there may be new repression, but they will just create more suffering and more outrage and more desire for action. That's how things work. Besides, if some are suffering, what justice is there till all are suffering? And things will accelerate too. You will be surprised at how fast history can move once we get it moving. The cycles will grow shorter and shorter. If we act today, the future will be upon us before we know it.' 'So forgery is permitted. Everything is permitted.' 'Why not? There nothing new in that. Everything is permitted for the sake of the future--even believers say so. I wouldn't be surprised if it's in the Bible.' " Id. at 199-200 (format deleted). On the hear and soul: (1) "Damn the heart, he tells himself! Damn this emotionalism! The touchstone is not the heart and how the heart feels, but death and how the dead boy feels!" Id. at 27-28. (2) "[Anna Sergeyevna:] 'Nevertheless, you have no right to lose your temper with her! How is she to know that Nechaev is a bad person! How am I to know? You say he is an actor. What about you? What about your own behaviour? Do you act from the heart all the time? I don't think so.' [Fyodor Mikhailovih:] 'You can't mean that. I do act from the heart. Once upon a time I may not have, but now I do--now above all. That is the truth.' [Anna Sergeyevna:] 'Now? Why all of a sudden now? Why should I believe you? Why should you believe yourself?' " Id. at 167 (format deleted). (3) "[Anna Sergeyevna:] 'I don't know what you mean.' [Fyodor Mikhailovih:] 'In your heart you do.' [AnnaSergeyevna:] 'In my heart I don't! What are you proposing? That I bring up a child whose father lives abroad and sends me an allowance in the mail? Preposterous!' " Id. at 224 (format deleted). (4) "I have lost my place in my soul, he thinks." Id. at 249. (5) "He has betrayed everyone; nor does he see that his betrayals could go deeper. If he ever wanted to know whether betrayal tasted more like vinegar or like gall, now is the time." "But there is no taste at all in his mouth, just as there is no weight on his heart. His heart, in fact, feels quite empty. He had not known beforehand it would be like this. But how could he have known? Not torment but a dull absence of torment. Like a soldier shot on the battlefield, bleeding, seeing the blood, feeling no pain, wondering: Am I dead already?" "It seems to him a great price to pay. They pay him lots of money for writing books, said the child, repeating the dead child. What they failed to say was that he had to give up his soul in return." "Now he begins to taste it. It tastes like gall." Id. at 250 (format deleted).).

SOME SUGGESTED READINGS IN ENGLISH HISTORY, ENGLISH HISTORY

2012-01-22T20:14:00.000Z

Barlow, Frank, William Rufus (Yale English Monarchs) (New Haven: Yale U. Press, 2000).

Blackstone, William, Commentaries on the Laws of England: Volumes I-IV (Chicago & London: U. of Chicago Press, 1979).

Churchill, Winston S., The History of the English Speaking Peoples, Volume 1: The Birth of Britain (London: Folio Society, 2003).

The Churchill, Winston S., The History of the English Speaking Peoples,Volume 2: The New World (London: Folio Society, 2003).

Churchill, Winston S., The History of the English Speaking Peoples,Volume 3: The Age of Revolution (London: Folio Society, 2003).

Churchill, Winston S., The History of the English Speaking Peoples,Volume 4: The Great Democracies (London: Folio Society, 2003).

Miller, John, James II (Yale English Monarchs) (New Haven: Yale U. Press, 2000).

Roberts, Andrew, A History of the English-Speaking Peoples Since 1900 (London: Weidenfeld & Nicolson, 2006).

Smith, Capt. John, Writings with Other Narratives of Roanoke, Jamestown, and the First English Settlement of America (New York: Library of America, 2007).

THE PROBLEM OF VIOLENCE IN THE INNER-CITY AMERICA CAN BE SOLVED

2012-01-22T12:14:00.003Z

David M. Kennedy, Don't Shoot: One Man, A Street Fellowship, and The End of Violence in Inner-City America (New York: Bloomsbury, 2011) (From the bookjacket: "Gang- and drug-related inner-city violence, with its attendant epidemic of incarceration, is the defining crime problem in our country. In some neighborhoods in America, one out of every two hundred young black men is shot to death each year, and few initiatives of government and law enforcement have made much difference. But when David M. Kennedy . . . engineered the 'Boston Miracle' during the crack epidemic of the 1990s, it cut youth homicide in the city by two-thirds and pointed the way toward what few had imagined: a real solution." "Don't Shoot tell the story of Kennedy's progress. Riding with beat cops, hanging with gang members, and stoop-sitting with grandmothers, Kennedy found that all parties misunderstood each other, caught in a spiral of racialized anger and distrust. He envisioned an approach in which everyone--gang members, drug dealers, cops, and community members--joins together in what is essentially a giant intervention. Offenders are told that the violence must stop, that even the cops want them to stay alive and out of prison, and that even their families support swift law enforcement if the violence continues." "The program Kennedy developed based on this approach has now been implemented in over seventy cities, . . . and in city after city, the same miracle has followed: Violence plummets, drug markets dry up, and the relationship between the police and the community is reset." Not the best writing. Still, food for thought. Food for hope.).

BOOK OF THE WEEK: WEEK THREE, 2012

2012-01-21T10:43:00.003Z

Chris Hedges, The World As It Is: Dispatches on the Myth of Human Progress (New York: Truthdig/Nations Books, 2011) (America in the twenty-first century is a nation of people who do not want to know what they don't want to know. They want their news sanitized, into bite-size nuggets of entertainment. They do not want the truth. They do not want to have to take responsibility for what we have allowed to be done in our name. And they certainly do not want to own up to the myth (a false myth, as all myths are) of American Exceptionalism, notwithstanding reality of the nation being in rapid decline. American civilization is over. We are a third world country already. But you will not learn this by reading or listening to mainstream media, or, for that matter, in getting a college degree. Corporate America has negated the reporting and search for truth. And colleges and universities have gotten out of the mission of educating students. Instead, they have gotten into the business of training the next generation of corporate drones. The World As It Is is a collection of essays by Chris Hedges, essays which are not balanced, and, for that reason, have the possibility of getting at the truth. "But in the game of American journalism it is forbidden to feel. Journalists are told they must be clinical observers who interpret human reality through their eyes, not their hearts--and certainly not through their consciences. This is the deadly disease of American journalism. And it is the reason journalism is the United States has lost it moral core and its influence. It is the reason that in a time of crisis the traditional media have little to say. It is why the traditional media are distrusted. The gross moral and professional failings of the traditional media opened the door for the hate-mongers on fox News and the news celebrities on commercial networks who fill our head s with trivia and celebrity gossip." "As the center of American power were seized and hijacked by corporations the media continued to pay deference to systems of power that could no longer be considered honest or democratic. The media treats criminals on Wall Street as responsible members of the ruling class, They treat the criminals in the White House and Pentagon as statesmen. The media never responded to the radical reconfiguration of American politics, the slow-motion coup d'etat that has turned phrases like the consent of the governed into a cruel joke. And because the media are not concerned with distinguishing truth from news, because they lack a moral compass, they have become nothing more than courtiers to the elite, shameless hedonists of power, and absurd court propagandists. At a moment when the country desperately needs vigorous media, its gets celebrities such as Katie Couric masquerading as journalists, who night after night 'feel your pain.' The few journalists who do not as Couric does, function as entertainers and celebrities are so timid and removed from the suffering of our dispossessed working classes that they are rightly despised. The media are hated for a reason. They deserve to be hated. They sided with the corporate forces, like most liberal institutions, as these corporate forces decimated the working class, bankrupted the economy, corrupted the legislative, executive, and judicial systems of government, and unleashed endless war and the destruction of the ecosystem on which life depends." Id. at xii-xiii. Read these essays, and see how willfully blind and ignorant we are. Take special note of Hedges's warnings about America's potential fall into fascism. We have been close before. We may not be so lucky this time around. Think about the scary appeal of the religious right. Think about the political climate in Mississippi, Alabama, Arizona, and Texas as bellwethers for where America may be heading on issues such as immigration, crime and prisons, voting rights, civil rights, race, gender and and a woman's right to choose.).

"CIVILIZATIONS ARE COMPLEX THING."

2012-01-20T12:07:00.006Z

Niall Ferguson, Civilization: The West and the Rest (New York: The Penguin Press, 2011) ("In this book I want to show that what distinguished the West from the Rest--the mainsprings of global power-were six identifiably novel complexes of institutions and associated ideas and behaviours. . . . To use the language of today's computerized, synchronized world, these were the six killer applications -the killer apps- that allowed a minority of mankind originating on the western edge of Eurasia to dominate the world for the better part of 500 years. . . . 1. Competition - a decentralization of both political and economic life, which created the launch-pad for both nation-states and capitalism[;] 2. Science - a way of studying, understanding and ultimately changing the natural world, which gave the West (among other things (a major military advantage over the Rest[;] 3. Property rights - the rule of law as a means of protecting private owners and peacefully resolving disputes between them, which formed the basis for the most stable form of representative government[;] 4. Medicine - a branch of science that allowed a major improvement in health and life expectancy, beginning in Western societies, but also in their colonies[;] 5. The consumer society - a mode of material living in which the production and purchase of clothing and other consumer goods play a central economic role, and without which the Industrial Revolution would have been unsustainable[;] 6. The work ethic - a moral framework and mode of activity derivable from (among other sources) Protestant Christianity, which provides the glue for the dynamic and potentially unstable society created by apps 1 to 5." "Make no mistake: this is not another self-satisfied version of 'The Triumph of the West'. I want to show that it was not just Western superiority that led to the conquest and colonization of so much of the rest of the world; it was also the fortuitous weakness of the West's rivals. In the 1640s, for example, a combination of fiscal and monetary crisis, climate change and epidemic disease unleashed rebellion and the final crisis of the Ming dynasty. That had nothing to do with the West. Likewise, the political and military decline of the Ottoman Empire was internally driven more than it was externally imposed. North American political institutions flourished as South America's festered; but Simon Bolivar's failure to create a United States of Latin America was not the gringo's fault." Id. at 12-13. "Civilizations are complex things. For centuries they can flourish in a sweet spot of power and prosperity. But then, often quite suddenly, they can tip over the edge into chaos." Id. at 44. America early twenty-first century? Food for thought! Also see Donald Kagan, "A Good Run," NYT Book Review, Sunday, 11/27/2011.).

FOOLISHLY TAKING ENERGY FOR GRANTED; OR, SOMETHING TO PONDER BEFORE DRIVING YOUR CAR TOMORROW MORNING

2012-01-18T10:22:00.006Z

Daniel Yergin, The Quest: Energy, Security, and the Remaking of the Modern World (New York: The Penguin Press, 2011) (This is not a riveting tale, but an important tale. We take the availability of energy and energy sources for granted. This is surprising in light of many of us having experienced some form of power outage due to various causes (torrential rains, ice storms, snow storms, hurricanes, tornadoes, windstorms, blackout, brownout, equipment malfunctions, etc.). These are temporary. Sometime life threatening, but mainly inconvenient. Yet, many off us have near mental breakdown when, say, the lose of electricity means we cannot recharge our cell phones, watch television, use our computers, get coffee from our favorite coffee shop. What would it be like were the music to stop and energy were not readily available, or its availability about as reliable as some third-world country? Would we ever recover? Would we kill each other? People shoot people at gas stations when gas is temporarily in short supply. What would happen were there no gas for a month? For several months? Don't expect the American Exceptionalism, markets, capitalism, and the rule of law to save our sorry butts. Think Mad Max. Think The Road Warrior. Think Beyond Thunderdome. The downside of globalization is that there is no where to run to when the proverbial crap hits the proverbial fan. We all, to mix the metaphors, go down the toilet together. Food for thought: In a November 4, 2011, Associated Press item captioned "Tempers flare over 6 days of Conn. power outages." Michael Melia reported: "Tempers are snapping as fast as the snow-laden branches that brought down power wires across the Northeast last weekend, with close to 300,000 Connecticut customers still in the dark and the state's biggest utility warning them not to threaten or harass repair crews." "Angry residents left without heat as temperatures drop to near freezing overnight have been lashing out at Connecticut Light & Power: accosting repair crews, making profane criticisms online and suing. In Simsbury, a hard-hit suburban town of about 25,000 residents, National Guard troops deployed to clear debris have been providing security outside a utility office building." After six days only! And in relatively tame Connecticut. My, my!).

THE PROBLEMS, POLICIES, AND POLITICS OF ENERGY IN AMERICA

2012-01-16T07:03:00.004Z

Michael J. Graetz, The End of Energy: The Unmaking of America's Environment, Security, and Independence (Cambridge, Massachusetts, & London, England: MIT Press, 2011) (From the bookjacket: "It remains a basic fact of American life that, despite forty years of political fulminating, global conflict, and ever-increasing environmental awareness, most of us still take energy for granted. We take for granted that when we come home at night and flip on the light switch, the bulb will illuminate. We assume that when we turn up the thermostat, the heat will come on. And however acutely aware we may be of the price per gallon we pay, we take it as something close to a right of citizenship that when we drive an automobile up to one of the more than 100,000 gas stations in the United States, there will be fuel for our cars and trucks in the tanks beneath the asphalt. Without gasoline, the country would not run, and so there is gasoline, and barring extraordinary circumstances, there is plenty of it." Id. at 1. "For most of the twentieth century, . . . [w]e produced domestically the oil we used. And importing the relatively small quantities we sometimes needed to top off our domestic supply was far less complex as a technical and logistical matter--and given the remnants of colonialism, a much less tense geopolitical matter. That was another time. The decade that changed all that was the 1970s. It was then that the journey become the problem. Energy in America has never been the same since." "This book is about the problems, policies, and politics of energy in America, beginning with the crises of the 1970s, the varied responses to which continue to shape our current predicaments. It is about he major forms of energy--oil, natural gas, coal, nuclear, hydro, solar, and wind--and how our government's attempts to control and decontrol, subsidize and command, legislate and repeal over the past four decades have produced a system and economy of energy production and consumption that fails to well serve our needs or those of our environment. The book is, then, in one sense a story of failure, but a story from which a great deal may be learned about how our democratic society might go about making better decisions for its energy future." Id. at 6. "It is inescapable that the risks of climate change from greenhouse gas emissions are real. It is also inescapable that we do not and cannot know with precision exactly what will happen or when it will occur. But we would be foolish not to take action to insure against the risks we face. After a detailed and careful review of the science and the climate change debate, The Economist concluded: 'The fact that the uncertainties allow you to construct a relatively benign future does not allow you to ignore futures in which climate change is large, and in some of which is very dangerous indeed. The doubters are right that uncertainties are rife in climate science. They are wrong when they present that as a reason for inaction.' " Id. at 158. This is a highly recommended historical perspective on American energy policy.).

THE UNMAKING OF AMERICAN DEMOCRACY

2012-01-15T12:01:00.002Z

Susan N. Herman, Taking Liberties: The War on Terror and the Erosion of American Democracy (New York & Oxford: Oxford U. Press, 2011) ("New baselines are far less likely to be questioned once they have become familiar. The Patriot Act . . . built incrementally on rights-diluting provisions in Bill Clinton's 1996 Antiterrorism and Effective Death Penalty Act, which had come to seem normal by 2001. In 2012, when the FISA Amendments Act expires, will Congress take a hard look at whether this spying program, already over a decade old, should be continued, or will we have become accustomed to our reduced privacy and let the program slide into permanency? When now entrenched Patriot Act provisions come up for renewal, is Congress likely to do anything more than tweak a few provision--perhaps appeasing the vocal librarians or slightly easing the burden on nonprofit organizations? Congress is not likely to take on the job of seriously reexamining the effectiveness and cost of antiterrorism strategies unless voters want it done." "I have speculated that voters have not expressed more concern about those strategies because we have been kept unaware of the extent of their costs, and perhaps because we don't really know if post-9/11 strategies promising to keep us safe are actually important. Fear is a powerful motivator. But certainly another reason Congress is not hearing more outrage from constituents is that the brunt of the impact of our post-9/11 program has fallen on Muslims, a minority in the United States practicing a widely misunderstood religion and easily stereotyped as resembling the 9/11 hijackers. The stories in this book show quite clearly that the people who have suffered the greatest collateral damage . . . are Muslims. The milder impact felt by non-Muslim Americans--lost of privacy, occasional cooptation as government agents, and embarrassing experiences at the airport--may seem to many like an acceptable bargain. This view, of course, discounts the deeper and less visible damage the New Normal is doing to our constitutional principles, to our democracy, and to our way o f life. Nevertheless, as polling data suggest, people find it all to easy to bargain away liberty in the hope of gaining safety of the liberty belongs to someone else. Pew Center polls conducted between 2001 and 2006, for example, show that more than twice as many respondents were in favor of allowing airport personnel to do extra checks on passengers who appear to be of Middle Eastern descent than were in favor of allowing the government to monitor their own telephone conversations, e-mails, or credit card purchases. A New York Times/CBS polls in January 2006 showed that 'respondents overwhelmingly supported [70%] email and telephone monitoring directed at 'Americans that the government is suspicious of;' they overwhelmingly opposed [68%] the same kind of surveillance if it was aimed at 'ordinary Americans.' A 2005 Gallop poll revealed that '[m]ore than half [of Americans polled] are in favor of subjecting all Arabs, including Arab Americans, to special security checks at airports" while only 48 percent favored requiring 'Arabs' to carry a special ID. A Gallop poll conducted in January 2010 showed that 71 percent of those polled felt that those who 'fit the profile' of suspected terrorists should be subjected to more intensive security checks before being permitted to board airplanes. "Why give up a dragnet that might possibly catch someone dangerous unless you care about the innocent people who predictably will be swept up? Beneath the attitudes these polls reveal seems to be an assumption that 'Arabs' or Muslims are presumptively guilty and that they are not like the rest of us. John Hart Ely, in his classic book Democracy and Distrust, points out that democracy is at it worst when it comes to protecting the rights of minorities--which is why politically insulated courts have an indispensable role to play in our constitutional democracy." Id. at 196-198. One of the under appreciated consequences of the Great Recession of 2008, and of its continuing lingering, is that the American people focus on their decreased economic and job security has caused them to almost completely ignore the decline in their civil liberties. Unless, of course, they have been actually caught up in--and are aware that they have been caught up in--the New Normal of the The Patriot Act and related antiterrrorism laws. We are increasingly living in an undemocratic police state. Ultimately, we have only ourselves to blame.).

BOOK OF THE WEEK: WEEK TWO, 2012

2012-01-14T11:07:00.002Z

William J. Stuntz, The Collapse of American Criminal Justice (Cambridge, Massachusetts, & London, England: Belknap/Harvard U. Press, 2011) ("Our enormous prison population is no wolf held by the ear. Nor is the proper measure of justice for those inmates--along with millions more who might join them soon--at odds with self-preservation for the rest of the population. On the contrary, those two populations share a common interest in a justice system that seeks moderate punishment rather than the immoderate kind that predominates today. As was true of slavery in Jefferson's day, the solutions to this particular problem chiefly require money and political will. With the notable exception of prison budgets, those things have been in short supply in America's dysfunctional criminal justice system, at least in the recent past. But the future need not resemble the recent past. A more distant past may offer a more useful model for the needed reforms." "In the wake of the Civil War white Southerners had the opportunity to embrace more freedom for their black neighbors together with a less violent, more peaceful culture. The opportunity was missed. Today, the justice system faces a similar opportunity: more freedom and democracy in black neighborhood, North and South alike, together with less crime in those neighborhoods. Seizing that opportunity begins with the understanding that maximizing 'involuntary servitude' (to use the Thirteenth Amendment's language) is not the best means of attacking violence and other lawbreaking. Over the past few decades, Americans have forgotten that lesson. We need to learn it again--to see where it comes from, and to discover how we manage to forget something so true, and so important." Id. at 59. "For the better part of a century in the Northeast and Midwest, the ratio of police officers to prison inmates stood, roughly, at two to one. In the South and West, it was closer to one to one. Today, nationwide, that ratio stands at less than one to two." "More than any other statistic, that one captured what is most wrong with American criminal justice. Police officers facilitate criminal punishment: they arrest the offenders whom prosecutors convict and prison wardens punish. But in the aggregate, large police forces have the opposite effect. More cops on the city street corners tends to mean fewer inmates in prison cells. The lenient style of criminal justice in northern cities a century ago used large police forces; the more severe South was much less policed. The link between more cops and fewer prisoners remains strong today--as does the link between those two characteristics and lower crime rates. The city with the biggest increase in the size of its police force during the 1990s was New York. The same city saw the biggest drop in urban crime during the 1990s. And the state that saw one of the smallest rises in its imprisonment rate in that decade and the biggest imprisonment drop since is again New York. States that saw both higher than average increases in the number of local police officers and lower than average increases in prison populations saw an average drop in violent crime of 31 percent. States in the opposite categories saw violent crime fall an average of only 2 percent. Putting more police officers on city streets belongs on a very short list of policy moves that should reduce both crime and the the number of prisoners." Id. at 288. Also see the book review by Former Supreme Court Associate Justice John Paul Stevens, "Or 'Broken System' of Criminal Justice," New York Review of Books, November 10, 2011, at 56. Strongly recommended discussion of how the system over emphasizes procedural protection over substantive protection. The result: more criminal laws, more crime, more imprisonment, less fairness, less democracy.).

THE BIGGEST PROBLEM WE'VE GOT . . . IS PEOPLE WHO DON'T STUDY HISTORY ANYMORE."

2012-01-13T12:33:00.000Z

Lloyd C. Gardner, Three Kings: The Rise of an American Empire in the Middle East After World War II (New York & London: The New Press, 2009) (From the bookjacket: The book "is the first history of America's efforts to supplant the British Empire n the Middle East, during and following World War II. From F.D.R. to L.B.J., this is the story of America's scramble for political influence, oil concessions, and a new military presence based on airpower and generous American aid to shaky regimes in Saudi Arabia, Iran, Egypt, and Iraq." "Marshaling new and revelatory evidence from the archives, Gardner deftly weaves together three decades of U.S. moves in the region, chronicles the early efforts to support and influence the Saudi regime (including the creation of Dhahran air base, the target of Osama bin Laden's first terrorist attack in 1996), the CIA-engineered coup in Iran, Nasser's Egypt, and finally, the rise of Iraq as a major petroleum power." "Here, the tangled threads of oil, U.S. military might, Western commercial interests, and especially the Israel-Palestine question are visible from the very beginning of 'The American Century'--a history with frightening relevance for the distant prospect of peace and stability in the region today.").

Lloyd C. Gardner & Marilyn B. Young, eds., Iraq and the Lessons of Vietnam: Or, How Not to Learn from the Past (New York & London: The New Press, 2007) (From the bookjacket: "By closely examining how our policy makers have failed to understand the history of our wars, relations with allies and antagonists, military strategies and capabilities, and thus the nature and limitations of presidential and American power, leading historians . . . demonstrate that Rumsfeld had it right when he noted that 'the biggest problem we've got in the country is people who don't study history anymore.' Rumsfeld was wrong about who those people are" (italic added).).

Michael H. Hunt, The American Ascendancy: How the United States Gained and Wielded Global Dominance (Chapel Hill: U. of North Carolina Press, 2007) (From the bookjacket: "A simple question lurks amid the considerable controversy created by recent U.S. policy: what road did Americans travel to reach global preeminence? Taking the long historical view, Michael Hunt demonstrates that wealth, confidence, and leadership were the key elements in America's ascent. In an analytical narrative that illuminates the past rather than indulging in political triumphalism, he provides crucial insights into the country's problematic place in the world today." "Hunt charts America's rise to global power from the nineteenth and early twentieth centuries to a culminating multilayered dominance achieved in the mid-twentieth century that has led to unanticipated constraints and perplexities over the last several decades. Themes that figure prominently in his account include the rise of the American state and a nationalists ideology and the domestic effects and international spread of consumer society. He examines how the United States remade great power relations, fashioned limits for the third world, and shaped our current international economic and cultural order." "America's eventual dominance on the global stage was not inevitable, Hunt points out. Seen from a historical perspective, the process depended on multiple pieces coming together in a complex mosaic. As the heir to the great nineteenth-century European powers, the United States constructed a strong central government with a powerful military and expansive international ambitions. It learned to promote and mange globalization and to sponsor an economic and social modernity that left a deep imprint on peoples everywhere." "Hunt concludes by addressing current issues, such as how durable American power really is and what options remain for America's future. His provocative exploration will engage anyone concerned about the fate of this republic." In reading this book, one cannot help wonder how those American politicians who advocate both a smaller Federal government and a strong military power with global reach will be able to square the circle and reconcile the two.).

STILL THE SAME: "EDUCATED CLEVERNESS IN THE SERVICE OF POPULAR IDOLS AND VULGAR ENDS"

2012-01-11T12:41:00.004Z

William James, Writing 1902-1910: The Varieties of Religious Experience; Pragmatism; A Pluralistic Universe; The Meaning of Truth; Some Problems of Philosophy; Essays, edited by Bruce Kuklick (New York: Library of America, 1987) (From "The True Harvard": "The old notion that book learning can be a panacea for the vices of society lies pretty well shattered to-day. I say this in spite of certain utterances of the President of this University to the teachers last year. That sanguine-hearted man seemed then to think that if the schools would only do their duty better, social vice might cease. But vice will never cease. Every level of culture breeds its own peculiar brand of it as surely as one soil breeds sugar-cane, and another soil breeds cranberries. If we were asked that disagreeable question, 'What are the bosom-vices of the level of culture which our land and day have reached?' we should be forced, I think, to give the still more disagreeable answer that they are swindling and adroitness, and the indulgence of swindling and adroitness, and cant, and sympathy with cant--natural fruits of that extraordinary idealization of 'success' in the mere outward sense 'getting there,' and getting there on as big a scale as we can, which characterizes our present generation. What was Reason given to man for, some satirist has said, except to enable him to invent reasons for what he wants to do. We might say the same for education. We see college graduates on every side of every public question. Some of Tammany's stanchest supporters are Harvard men. Harvard men defend our treatment of our Filipino allies as a masterstroke of policy and morals. Harvard men, as journalists, pride themselves on producing copy for any side that nay enlist them. There is not a public abuse for which some Harvard advocate may not be found." "In the successful sense, then, in the wordily sense, in the club sense, to be a college man, even a Harvard man, affords no sure guarantee for anything but more educated cleverness in the service of popular idols and vulgar ends. . . ." Id. at 1126, 1127-1128.).

WHEN THE FACE CONTRADICTS THE SPEAKER'S WORDS

2012-01-10T12:08:00.000Z

Julian Barnes, The Sense of an Ending: A Novel (New York: Knopf, 2011) ("I saw it in his face. It's not often that's true, is it? At least, not for me. We listen to what people say, we read what they write--that's our evidence, that's our corroboration. But if the face contradicts the speaker's words, we interrogate the face. A shifty look in the eye, a rising blush, the uncontrollable twitch of a face muscle--and then we know. We recognize the hypocrisy or the false claim, and the truth stands evident before us." Id. at 150. Also, see Liesl Schillinger, "Julian Barnes and the Emotions of an Englishman," NYT Book Review, Sunday, 11/13/2011.).

LIBERAL INTERNATIONAL ORDER

2012-01-09T11:21:00.003Z

G. John Ikenberry, Liberal Leviathan: The Origins, Crisis, and Transformation of the American World Order (Princeton & Oxford: Princeton U. Press, 2011) ("[L]iberal international order is defined as order that is open and loosely rule-based. Openness is manifest when states trade and exchange on the basis of mutual gain. Rules and institutions operate as mechanisms of governance--and they are at least partially autonomous from the exercise of state power. In its ideal form, liberal international order creates a foundation in which states can engage in reciprocity and institutionalized cooperation. As such, liberal international order can be contrasted with closed and non-rule-based relations--whether geopolitical blocs, exclusive regional spheres, or closed imperial systems." Id. at 18. "[T]he more specific features of liberal international order vary widely. The liberal vision is wide ranging, and the ideas associated with liberal internationalism have evolved over the last two centuries. In the nineteenth century, liberal international order was understood primarily as a commitment to open trade, the gold standard, and great power accommodation. In the twentieth century, it has been understood to entail more elaborate forms of rules and institutional cooperation. Notions of cooperative security, democratic community, collective problem solving, universal rights, and shared sovereignty have also evolved over the last century to inform the agenda of liberal order building". Id. at 19. I"The United States will remain the dominant state in the global system for several decades to come. As such, its strategic orientation toward the logic and organization of the system will shape decisively what comes next. So what are its underlying interests and incentives in the maintenance of an open, rule-based international order? It was, after all, one of the great beneficiaries of that order, occupying its center, with all the authority and privileges that conveyed. But if the maintenance of the old hegemonic order is not possible, the United States will want to help shape a follow-on order that retains it open and rule-based character. It will surely struggle over how authority, sovereignty, hierarchy, and institutions are arrayed within the order. But it will also seek to preserve the order's underlying liberal features. The Bush administration's efforts to transform the system into a unipolar security order in which the United States disentangled itself from multilateral rules and institutions failed--and the lessons have not been lost on its successor administration. Moreover if unipolarity is, in fact, in a slow process of decline, the incentives are actually intensified for putting in place and reinforcing a reformed liberal order, even if this entails a reduction of American hegemonic rights and privileges." Id. at 315-316.).

REGULATION THROUGH LITIGATION: WILL IT FARE ANY BETTER IN EU THAN IT DOES IN US?

2012-01-08T12:26:00.000Z

R. Daniel Keleman, Eurolegalism: The Transformation of Law and Regulation in the European Union (Cambridge, Massachusetts, & London, England: Harvard U. Press, 2011) ("The central argument of this book is that the process of European integration is encouraging the spread of a European variant of adversarial legalism, which we can call Eurolegalism. Eurolegalism shares the same defining characteristics as American0style adversarial legalism, but due to the moderating influence of entrenched national legal institutions and norms, the version of adversarial legalism that is spreading in Europe is more restrained and sedate than that found in America. European integration is encouraging the spread of Eurolegalism as a mode of governance through two linked causal mechanisms . . . The first mechanism involves the process of deregulation and juridical reregulation linked to the creation of the EU's single market. The economic liberalization associated with the single market has undermined traditionally cooperative, informal, and opaque approaches to regulation at the national level. Deregulation at the national level has been linked to reregulation at the European level, as national regulations that impeded the operation of the single market are replaced with pan-European frameworks, However, most new EU regulations do not resemble the national ones they replaced The increased volume and diversity of players in the liberalized single market and the demands from market participants and governments alike to ensure a 'level playing field' pressure EU policy makers to rely on a more formal, transparent approach to regulation back by vigorous enforcement, often by private parties." "The second mechanism stems from the EUs fragment3d institutional structure and its impact on EU policymaking. When policy makers seek to reregulate at the EU level, they do so in the context of a weak administrative apparatus. The vertical fragmentation between the EU and the member states and the horizontal fragmentation of power between institutions at the EU level (i.e., the Council, the Parliament, and the Commission) generate principal-agent problems that encourage the adoption of laws with strict, judicially enforceable goals, deadlines and transparent procedural requirements, Also, given the EU's extremely limited implementation and enforcement capacities, EU lawmakers have an incentive to create justiciable rights and to empower private parties to serve as the enforcers of EU law. In the absence of a Eurocracy powerful enough to enforce EU law from Brussels . . ., the EU is encouraging the spread of adversarial legalism as a mode of governance that can harness private litigants and national courts for the centralized enforcement of European law." "Euroleglism is emerging as a quite unexpected--and in many circle unwanted--stepchild of European integration, Together, the Eu's institutional structure and its ongoing project of market integration generates political incentives and functional pressures that have led policy makers to enact transparent, justiciable regulations backed by strict public enforcement and increased opportunities for private enforcement. In other words, adversarial legalism is emerging in Europe for much the same reason it emerged decades earlier in the United States. As Kagan has emphasized [] in the US case, the combination of 'fragmented governmental authority' and 'fragmented economic power' was crucial to the emergence of adversarial legalism. In the United States, regulation through litigation emerged a a tool of a weak, highly fragmented state attempting to regulate an expansive and highly liberalized economy. So too in Europe." Id. at 7-9. Some, perhaps many, will say that adversarial legalism has not worked out all that well in the United States. Why should it fare any better in the European Union? Anyway, a worthwhile read for those interested in regulation, adversarial systems, EU law, and comparative law.).

BOOK OF THE WEEK: WEEK ONE, 2012

2012-01-07T10:29:00.000Z

Sylvia Nasar, Grand Pursuit: The Story of Economic Genius (New York: Simon & Schuster, 2011) ("Rather than a history of economic thought, the book . . . is the story of an idea that was born in the golden age before World War I, challenged in the catastrophic interwar years by two world wars, the rise of totalitarian governments, and a great depression, and was revived in a second golden age in the aftermath of World War II." "Alfred Marshall called modern economics an 'Organan,' ancient Greek for tool, not a body of truths but an 'engine of analysis' useful for discovering truths and, as the term implied, an implement that would never be perfected or completed but would always require improvement, adaption, innovation. His student John Maynard Keynes called economics an 'apparatus of the mind' that, like any other science, was essential for analyzing the modern world and making the most of it possibilities." "I chose protagonists who were instrumental in turning economics into an instrument off mastery. I chose men and women with 'cool heads but warm hearts' who helped build Marshall's 'engine' and innovated Keynes's 'apparatus. I chose figures whose temperaments, experiences and genius led them, in response to their own times and places, to ask new questions and propose new answers. I chose figures that took the story from London in the 1840s around the world, ending in Calcutta at the turn of the twenty-first century. I tried to picture what each of them saw when they looked at their world, and to understand what moved, intrigued, inspired them. All of these thinkers were searching for intellectual tools that could help solve what Keynes called 'the political problem of mankind: how to combine three things: economic efficiency, social justice and individual liberty." Id. at xiv-xv.).

KEYNES AND/OR HAYEK

2012-01-06T10:47:00.003Z

Two short worthwhile reads:

Roger E. Backhouse & Bradley W. Bateman, Capitalist Revolutionary: John Maynard Keynes (Cambridge, Massachusetts, & London, England: Harvard U. Press, 2011).

Nicholas Wapshott, Keynes Hayek: The Clash That Defined Modern Economics (New York: Norton, 2011).

THE ANNUAL MEETING OF THE AMERICAN ASSOCIATION OF LAW SCHOOL

2012-01-05T13:21:00.001Z

The AALS meeting will begin in a few days. A theme running through the meeting will be the future of legal education and the role of practice-ready legal education. There will be a lot of discussion of change, the need for change, how to implement change, etc. However, if one steps back and listens carefully to the loudest voices, one will hear the voice of the reactionary, the voice of the counter-revolutionary disguised in the language of the revolutionary or, most-likely, the progressive. Do not be fooled. The advocates of practice-ready legal education are supporters (if not the dupes) of the hierarchy. They would have law students graduate with only the skills and limited knowledge that would allow law school graduates to take their positions in the machinery of the legal bureaucracy. They will would train the law students to be high-quality, but easily replaceable worker bees. Void of any inclinations toward the intellectual, the original, the independent, the true. Void of any inclinations toward law as being about justice. When legal education stops being about justice, what is its special worth? Lawyers simply become paper shufflers, mouthpieces, suits.

"GOVERNING THROUGH CRIME"

2012-01-05T12:04:00.002Z

Tom Barry, Border Wars (A Boston Review Book) (Cambridge, Massachusetts, & London, England: MIT Press, 2011) ("Beyond the false hopes and corporate greed that build immigrant prisons, their expansion, like that of other prisons that have mushroomed across the rural United States, seems fueled by something both sinister and uniquely American. The growing divide between citizens and immigrants is only partially responsible for what has befallen this new class of inmates. A wider sensibility about prisoners is also at work. The men and women held behind the perimeter fences are never seen, never discussed. The prison is treated as a waste dump, similarly placed on the community's edge, where property values are low and there are no neighbors. The prisoners themselves are society's refuse, its discards, outcasts, and outsiders who have lost their membership rights in the human community." Id. at 47. "Since the 1970s crime control has become a central theme in U.S. politics and society. In the words of Berkeley law professor Jonathan Simon, we are 'governing through crime': isolation and exclusion in an expansive penal system is the dominant response to tough social problems. Although the immigrant crackdown raises its own special concerns, it largely mirrors and merges with the broader wars on drugs and crime in terms of increasing the costs expanding law enforcement, high incarceration rates and dismal cost-benefit ratios. Immigration, a contentious social issue lacking an easy solution, has similarly been addressed though increased enforcement and incarceration." "Given that get-tough models are the basis for our current approach to immigration, it comes as little surprise that, like the war on crime, the immigrant crackdown has flooded the federal courts with nonviolent offenders besieged poor communities, and dramatically increased the U.S. prison population, while doing little to solve the problem itself." Id at 48-49. Have really gotten 'tough on crime,' or have we merely gotten mean? Food for thought.).

"TWO IDEAS OF GOVERNMENT"

2012-01-04T14:14:00.003Z

Ted Widmer, ed., American Speeches: Political Oratory from Abraham Lincoln to Bill Clinton (New York: Library of America, 2006) (From William Jennings Bryan, "Speech to the Democratic National Convention," Chicago, July 9, 1896: "There are two ideas of government. There are those who believe that, if you will only legislate to make the well-to-do prosperous, their prosperity will leak through on those below. The Democratic idea, however, has been that if you legislate to make the masses prosperous, their prosperity will find its way up through every class which rests upon it." Id. at 142, 148. From Margaret Chase Smith, "Declaration of Conscience, Washington, D.C., June 1, 1950: "Those of us who shout the loudest about Americanism in making character assassinations are all to frequently those who, by our own words and acts, ignore some of the basic principles of Americanism--The right to criticize. The right to hod unpopular beliefs, The right to protest. The right of independent thought. The exercise of this rights should not cost one single American citizen his reputation or his right to a livelihood nor should he be in danger of losing his reputation or livelihood merely because he happens to know some one who holds unpopular beliefs. Who of us does not? Otherwise none of us could call our souls our own. Otherwise thought control would have set in." Id. at 487, 488.).

ON REINHOLD NIEBUHR

2012-01-03T10:49:00.001Z

John Patrick Diggins, Why Niebuhr Now? (Chicago & London: U. of Chicago Press, 2011).

Charles Lemert, Why Niebuhr Matters (New Haven & London: Yale U. Press, 2011) ("The reality of Western history is that the modern West was built, from at least 1500 onward, in the global explorations for new wealth--for, that is, capital wealth able to expand through well-reasoned reinvestment into a continuing stream of surplus values. The ideal of progress has always been subservient to capitalism's reliance on continuous economic growth in a world where values and resources are finite. As a result, in nations like the United States, where the ideology of economic freedoms and actual market forces are the determining spheres of personal worth, ideological and practical politics are always vulnerable to the exceptions required by corporate powers. No less is liberalism, especially in the United States, a weak term precisely because it must serve to create a political exception to the power of the state." "A liberal thus, was and still is, one who is not conservative, where conservatives are taken to be those more than willing to use power (whatever that might be) to conserve their version of the truth, when their truths are nearly always the truths that redound to those who hold their privileges by tradition. Liberalism thereby stakes out the rights of the individual against those of the powerful, of which the state is the pure type and the free market the fantasy playground. 'When economic power desires to be left alone,' Niebuhr said of the lure of liberal individualism, 'it uses the philosophy of laissez faire to discourage political restrain upon economic freedom.' Liberal individualism is the hoax that covers the reality of state interests that are bound tight to corporate greed. Liberalism is always implicated in the devious effects of power." Id. at 51-52. ""Lincoln, Niebuhr, and King, all three, and many others, sought justice; and all three understood that justice rolls down like water and that waters do necessary violence to the pastoral landscape." "[] The very thought is hard to take because it requires accepting the harsh realities that our ideals and values are not what we had hoped they would be. Love, such as it is, does not lead to justice. We cannot live together without justice that includes all with whom we might join to form a communal society based on fairness that requires sacrifice. This is the problem Niebuhr addressed. Collective action toward justice is not a native-born gift. Human nature desires neither community nor justice. When we arrive collectively at any degree of justice we arrive exhausted by the journey and bruised by the conflict." Id. at 98. Reinhold Niebuhr does matter, and matters very much now.).

THE IMPORTANCE OF GOOD DICTIONARIES

2012-01-02T22:18:00.000Z

John Ralston Saul, The Doubter's Companion: A Dictionary of Aggressive Common Sense (New York: The Free Press, 1994) ("DEMOCRACY "An existential system in which words are more important than action. Not a judgemental system." "Democracy is not intended to be efficient, linear, logical, cheap, the source of absolute truth, manned by angels, saints or virgins, profitable, the justification for any particular economic system, a simple matter of majority rule or for that matter a simple matter of majorities. Nor is it an administrative procedure, patriotic, a reflection of tribalism, a passive servant of either law or regulation, elegant or particularly charming." "Democracy is the only system capable of reflecting the humanist premise of equilibrium or BALANCE. The key to its secret is the involvement of the citizen. . . . " Id. at 94. "DIRECT DEMOCRACY An appealing idea which has been unworkable for more than two thousand years. This makes it a favourite with political groups whose basic instincts are anti-democratic. . . ." "Direct democracy seems to push the citizen forward by emphasizing the importance of casting a ballot. Of course the vote is essential to the democratic process, but it is not the purpose. Consideration, reflection, doubt and debate were the primary purpose of the Athenian agora and ekklesia, as of the representative assemblies over the last few centuries. These four processes are the body of the democratic sentence. The vote is merely the punctuation. The body of the sentence, if properly expressed, makes it almost inevitable that sometimes there will be an uncertain question mark, a careful period or sometimes a determined exclamation. Without the body, these signals are clear and even exciting, but meaningless. Direct democracy is all punctuation, but denies functioning language. . . . " Id. at 10-109. "From the bookjacket: "A long and distinguished tradition of writers have used the form of a satirical dictionary to undermine the received ideas of their day. Voltaire wrote a sharply humorous 'Philosophical Dictionary,' while Samuel Johnson's dictionary of the English language was derisive and opinionated. These early dictionaries and encyclopedia were really weapons in a struggle for the soul of civilization between forces of orthodoxy and dogmatism. Their authors attacked and exposed the half-truths of their day by showing that it was possible to think differently about the social and political arrangements that everyone took for granted." "But as John Ralston Saul argues in this decidedly unorthodox new book modern dictionaries have once again been captured by the forces of orthodoxy--albeit this time a rationalist orthodoxy. Our language has become as predictable, fragmented, and rhetorical as it was in the 18th century, divided as it is by special interest groups into dialects o expertise that are hermetically sealed off and inaccessible to citizens . Now, in The Doubter's Companion a marvelous subversive contribution to the great 19th century tradition of the humanist dictionary, Saul skewers and discredits the accepted content of common terms like Advertising, Academics, and Air Conditioning (defined as 'an efficient means for spreading disease in enclosed public spaces'); Cannibal, Conservative, and Croissant; Dandruff, Death, and Dictionary ('opinions presented as truth in alphabetical order'). and several hundred others, including Biography ('a respectable form of pornography'), Museum ('safe storage for stolen objects'_, and Manners ('peopel are always splendid when they're dead'). " :There is much in this volume that will stimulate, offend, provoke, perplex, and entertain. But Saul deploys these tactics of guerrilla lexicography to advance these more serious purpose of reclaiming public language from the stultifying dialects of modern expertise." If only someone to such a stab at rewriting Black's Law Dictionary.).

ON AMERICA'S "EVANESCENT LITERATURE"

2012-01-02T14:00:00.004Z

Ted Widmer, ed., American Speeches: Political Oratory from the Revolution to the Civil War (New York: Library of America, 1999) (From Theodore Parker, "The Political Destination of America and the Signs of the Times," 1848: "America literature, which may be divided into two departments: the permanent literature, which gets printed in books, that sometimes reach more than one edition; and the evanescent literature, which appears only in the form of speeches, pamphlets, reviews, newspaper articles, and the like extempore productions. Now our permanent literature, as a general thing, is superficial, tame, and weak; it is not American; it has not our ideas, our contempt of authority, our philosophical turn, not even our uncertainty as to first principles, still less our national intensity, our hope, and fresh intuitive perceptions of truth. It is a miserable imitation. Love of freedom is not there. The real national literature is found almost wholly in speeches, pamphlets, and newspapers. The latter are pretty thoroughly American; mirrors in which we see not very flattering likeness of our morals or our manners. Yet the picture is true: that vulgarity, that rant, that bragging violence, that recklessness of truth and justice, that disregard of right and duty, are part of the nation's everyday life. Our newspapers are low and 'wicked to the fault;' only in this weakness are they un-American. Yet they exhibit, and abundantly, the four qualities we have mentioned as belonging to the signs of our times. And as a general rule, our orators are also American, with our good and ill. Now and then one rises who has studied Demosthenes in Leland or Francis, and got a second-hand acquaintance with old models: a man who use literary commonplaces, and thinks himself original and classic because he can quote a line or so of Horace, in a Western House of Representatives, without getting so many words wrong as his reporter; but such men are rare, and after making due abatement for them, our orators all over the land are pretty thoroughly American, a little turgid, hot, sometimes brilliant, hopeful, intuitive, abounding in half truths, full of great ideas; often inconsequent; sometimes coarse; patriotic, vain, self-confident, rash, strong, and young-mannish. Of course the most of our speeches are vulgar, ranting, and worthless, but we have produced some magnificent specimens of oratory, which are fresh, original, American and brand new." Id. at 354, 375-376.).

WE EXIST, THOUGH WE ARE ALREADY DEAD. WE JUST DON'T KNOW WE ARE ALREADY DEAD.

2012-01-01T19:08:00.005Z

Colson Whitebread, Zone One: A Novel (New York: Doubleday, 2011) ("Looking down at them through the twisting ash, Mark Spitz shuddered. The dead streamed past the building like characters on an electronic ticker in Times Square, abstractions as impenetrable as the Quiet Storm's vehicles. He'd always peered from the skyscraper windows into the streets, seeking. Close to the ground, almost at their level, he read their inhuman scroll as an argument: I was here, I am here now, I have existed, I exist still. This is our town." Id. at 246.).

"MERELY MARKING A COURSE SET EARLY IN OUR DAYS"

2012-01-01T14:45:00.003Z

Ethan Canin, America America: A Novel (New York; Random House, 2008) ("How do each of us come to understand what is never spoken? By what constellation of gesture and avowal, by what detail of comportment or tone do we discern the dark inobvious intent of those around us? The earliest real words Liam Metarey ever spoke to me--'work will set you free'--returned to me with a shock when I came upon them again, six years later, on my first trip to Europe, and only suggested once more that our worlds--our lives--are not at all what they appear. That all of us, no matter how difficult this may be to accept, are merely marking a course set early in our days. . . ." Id. at 401-402.).

WHAT DOES A HUMAN BEING NEED TO FEEL HUMAN?

2012-01-01T10:53:00.003Z

Vivian Gornick, Emma Goldman: Revolution as a Way of Life (Jewish Lives) (New Haven & London: Yale U. Press, 2011) ("Emma Goldman was a hybrid anarchist. Although she was formed by European (Communistic) anarchism, and spent her life denouncing the state, she had a passion first for the work of the German philosophers of individualism (Friedrich Nietzsche and Max Stirner) and then for that of American dissenters like Henry David Thoreau and Walt Whitman whose romantic defense of the supremacy of the individual spoke even more directly to her emotional imagination; it was out of the language of the homegrown American rebel that her anarchism found its great expressiveness and defiant originality, This passion for individualism, as old as the Greek discovery of consciousness, burned in her not only as an angry hunger to feel free within her own self but as an undying insistence that that freedom was a human birthright. To live in a world that denied one's birthright was the intolerable prospect that fed her rebelliousness and, in turn, led her to the kind of insight that contributed substantially to the never-ending inquiry in the question of what a human being needs to feel human." Id. at 5-6). Is a true passion for individualism really possible in a twenty-first-century America premised on the three gods of narcissism, consumerism, and authoritarian corporate capitalism? I would wish readers of this blog a happy New Year, but I cannot do so. I see us as entering the New Dark Age. Civilization is in decline. I see nothing happy about that. "'Society is in its last convulsions,' she announced . . . 'Men cannot be happy as long as they are slaves. They cannot expect theft, murder, prostitution, or oppression to be gotten rid of unless the system which breeds them is gone. . . For this I shall continue to work. My motto as ever [is] Death to Tyranny! Vive l'Anarchie!'" Id. at 38. Yes, revolution as a way of life!).

BOOK OF THE WEEK: WEEK FIFTY-TWO, 2011

2011-12-25T12:02:00.001Z

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

2011-12-18T12:02:00.003Z

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

2011-12-14T20:16:00.002Z

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

2011-12-13T11:07:00.003Z

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

2011-12-11T12:17:00.002Z

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

2011-12-10T12:08:00.004Z

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.").

Cosmopolitan Lawyer

GOODBYE TO ALL OF THIS

TRYING TO PURSUE A DIFFERENT PATH

BOOK OF THE WEEK: WEEK SEVENTEEN, 2012

BOOK OF THE WEEK: WEEK SIXTEEN, 2012

"SHAKESPEARE IS AN OUTLAW FROM ALL SYSTEMS AND WOULD BE GREAT IN DESPITE OF ALL"--RALPH WALDO EMERSON

BOOK OF THE WEEK: WEEK FIFTEEN, 2012

AGAINST NOSTALGIA, NARCISSISM AND FALSE SOLIDARITY AMONG CIVIL RIGHT ACTIVISTM

BOOK OF THE WEEK: WEEK FOURTEEN 2012

BOOK OF THE WEEK: WEEK THIRTEEN, 2012

BOOK OF THE WEEK: WEEK TWELVE 2012

SUGGESTED FICTION

BOOK OF THE WEEK: WEEK ELEVEN, 2012

BOOK OF THE WEEK: WEEK TEN, 2012

BOOK OF THE WEEK: WEEK SEVEN, 2012

BOOK OF THE WEEK: WEEK SIX, 2012

BOOK OF THE WEEK: WEEK FIVE, 2012

TALKING ABOUT MORTALITY

WHEN IT COMES TO MAXIMIZING OUR OWN WELL-BEING, EACH OF US IS PROBABLY OUR OWN WORST ENEMY.

SUGGESTED FICTION

LIBERALISM IS HONEST ABOUT ITSELF, LIBERALS NOT SO MUCH.

THE NEED FOR A DEMOCRACY PROTECTION MOVEMENT: TAKE POLITICAL MATTERS MORE SERIOUSLY

ANTICIPATING BLACK HISTORY MONTH: FICTION FROM THE HARLEM RENAISSANCE

" 'HAVE A NICE DAY AT THE OFFICE, HON?' "

OCCUPY AMERICA: THE 0.1 PERCENT VERSUS THE 99.9 PERCENT

IS AMERICAN RELIGIOSITY THE ACHILLES HEEL OF THE AMERICAN REPUBLIC?

THE BIASES OF INTUITION

REREADING GEORGE ELIOT

TYRANNY

MISCELLANEOUS READS, PROBABLY OF LITTLE INTEREST TO (MOST) LAW STUDENTS

FOOD FOR THOUGHT FOR ASPIRING YOUNG LAWYERS

DOCUMENTING AMERICA'S PROCLIVITY TO TORTURE

MUTUAL MISUNDERSTANDING

THE ROAD TO APPOMATTOX COURT HOUSE

THE CHOICE OF THE LAW AS A PROFESSION

ANTICIPATING CHARLES JOHN HUFFHAM DICKENS'S 200th BIRTHDAY

DRESS REHEARSAL FOR SECESSION AND CIVIL WAR

AMERICAN INDIVIDUALISM AS A RATIONALIZATiON OF SOCIAL AND MORAL IRRESPONSIBILITY

JUSTICE, GREATNESS, HAPPINESS

THE HONEST CYNIC'S GUIDE FOR UNDERSTANDING POVERTY POLICY AND LAW

"STOP TALKING ABOUT EVIL IN GENERAL AND FOCUS INSTEAD ON POLITICAL EVIL IN PARTICULAR

CORPORATISM AND THE DEATH OF INDIVIDUALISM

SUGGESTED FURTHER READINGS FOR CONSUMER LAW STUDENTS

BOOK OF THE WEEK: WEEK SIX, 2012

THE CLOSE, YET TROUBLED, RELATIONSHIP BETWEEN GOVERNMENT AND HIGHER EDUCATION IN AMERICA

GOD'S RIVAL?: THE DEADLY HAND OF THE MARKET.

"MONEY IS MONEY, AND A DEAL'S A DEAL."

BOOK OF THE WEEK: WEEK FIVE, 2012

ABOUT ISRAEL

BOOK OF THE WEEK: WEEK FOUR, 2011

THE INSTABILITY OF THE AMERICAN DREAM

MORALISTIC AMERICANISM

RICHARD A. EPSTEIN ON THE FAILINGS OF THE (PROGRESSIVE) ADMINISTRATIVE STATE

MISCELLANEOUS RE-READINGS, OR FOOD FOR THOUGHT FOR INDEPENDENT THINKING LAW STUDENTS

DEPENDENCY DAY: WHY DEMOCRACY IS DEAD AND THE AMERICAN REPUBLICAN FORM OF GOVERNMENT IS DYING

BURMA

WHERE BIG GOVERNMENT, AND THE ADMINISTRATIVE STATE, REALLY GOT ITS HEFT

A NOVEL THEORY OF INTERNATIONAL JUSTICE

DEBATING THE MORALITY OF RESTRICTIVE IMMIGRATION POLICY

FOR SOME REMEMBRANCE DAY

MIGHT A STRONG ARGUMENT BE MADE THAT TWENTY-FIRST-CENTURY AMERICA IS SUFFERING AN ACUTE CASE OF BEING IN THE 'PARANOID POSITION?"

DEMOCRACY CASTRATED, WILLFUL ILLITERACY, AND WESTERN CIVILIZATION UNDOING ITSELF

ON THE NEED TO BALANCE COMMON SENSE, ETHICS, INTUITION, AND IMAGINATION

IT IS COMPLICATED, . . . STILL THERE IS NO PLACE LIKE HOME.

SUGGESTED FICTION, ETC.

READINGS OF LITTLE INTEREST TO (MOST) LAW STUDENTS

REREADING NADINE GORDIMER

REREADING J. M. COETZEE FOR A PAPER NOT WRITTEN

SOME SUGGESTED READINGS IN ENGLISH HISTORY, ENGLISH HISTORY

THE PROBLEM OF VIOLENCE IN THE INNER-CITY AMERICA CAN BE SOLVED

BOOK OF THE WEEK: WEEK THREE, 2012

"CIVILIZATIONS ARE COMPLEX THING."

FOOLISHLY TAKING ENERGY FOR GRANTED; OR, SOMETHING TO PONDER BEFORE DRIVING YOUR CAR TOMORROW MORNING

THE PROBLEMS, POLICIES, AND POLITICS OF ENERGY IN AMERICA

THE UNMAKING OF AMERICAN DEMOCRACY

BOOK OF THE WEEK: WEEK TWO, 2012

THE BIGGEST PROBLEM WE'VE GOT . . . IS PEOPLE WHO DON'T STUDY HISTORY ANYMORE."

STILL THE SAME: "EDUCATED CLEVERNESS IN THE SERVICE OF POPULAR IDOLS AND VULGAR ENDS"

WHEN THE FACE CONTRADICTS THE SPEAKER'S WORDS

LIBERAL INTERNATIONAL ORDER