Cosmopolitan Lawyer

Ages ago, at my first-year law school orientation, my classmates were told "If you only know the law, then you do not know the law at all." I took the words to heart as I made my way through law school, through law practice and, now, into law teaching. The Cosmopolitan Lawyer lists readings, many non-law, which are influencing my thinking about law. It is my effort to be, and to encourage others to be, more cosmopolitan--and, thus, less parochial--in thinking about law.

August 6, 2007

THE UNREAD BOOKS ARE THE MORE VALUABLE BOOKS.

cos-mop-o-lite, n, a person who is cosmopolitan in his ideas, life, etc.; citizen of the world.

cos-mo-pol-i-tan, adj. 1. belonging to all the world; not limited to just one part of the political, social, commercial, or intellectual world. 2. free from local, provincial, or national ideas, prejudice, or attachments. 3. of or characteristic of a cosmopolite. -n. 4. a person who is free from local, provincial, or national prejudices, etc.; citizen of the world; cosmopolite.

Ackerman, Kenneth D., Young J. Edgar: Hoover, The Red Scare, and The Assault on Civil Liberties (New York: Carroll & Graf, 2007) (a little history, with obvious lessons for our own times.).

Baldwin, James, The Evidence of Things Not Seen (New York: Holt, Rinehart and Winston, 1985) (This is Mr. Baldwin commentary on the state of the American Union in the early and middle1980s. He uses the Wayne Williams/Atlanta child-murder case as his springboard. “Each of us knows, though we do not like this knowledge, that a courtroom is a visceral Roman circus. No one involved in this contest is, or can be impartial. One makes the attempt, or imagines that one does: but it is, in any case, and strenuously, an attempt. Or, in other words, the ability to suspend judgment is, in each of us, suspect—to leave it at that: without, that is, going so far as to say that the suspension of judgment is impossible,” “For to suspend judgment demands that one dismiss one’s perceptions at the very same moment that one is most crucially—and cruelly—dependent on them. We perceive by means of the kaleidoscopic mirror of this life. This means that our ability to perceive is at once tyrannized by our expectations, and at war with them. Our expectations are revealed in our habits, our manner: our defeats, terrors, genuine or imagined triumphs risk being more visible to others than to ourselves: for that mirror, mirror, on the wall! hears no questions and answers none.” Id. at 1-2. “The cowardice of this time and place—this era—is nowhere more clearly revealed than in the perpetual attempt to make the public and social disaster the result, or the issue, of a single demented creature or, perhaps, half a dozen such creatures, who have, quite incomprehensibly, gone off their rockers and who much be murdered or locked up. Thus, for example, these present days, to describe a person, or group of persons, as leftists, guerrillas, or terrorists is to dismiss their claim to human attention: we are not compelled to think of them at all anymore, except as the vermin that must be destroyed. Or, in another way, but for the same reason, we are still attempting to explain Hitler away: we do not wish to see him in our mirror.” Id. at 72-73.).

Bayly, Christopher, & Tim Harper, Forgotten Wars: Freedom and Revolution in Southeast Asia (Cambridge: Belknap/Harvard U. Press, 2007) (From the Preface: "In August 1945 the US dropped atomic bombs on Nagasaki and Hiroshima, so bringing to an end the Second World War. Yet in Asia the Second World War was only one intense and awful phrase of a much longer conflict.... This long and savage war had begun in 1937 with a full-scale attack on China by the Japanese imperialists. It continued after 1945 in a range of intense and bloody wars, both civil and against a revived European colonialism. These conflicts, variously called the Indonesian revolution, the First Indo-China War, the Partition of India, the Burmese civil war, the Malayan Emergency and the Vietnam War, surged on into the 1970s and beyond. It was not really until the 1980s, with the economic renaissance of Japan, the rise of Singapore and Malaysia and the beginning to the transformation of the Asian communist regimes toward free-market capitalism, that Asia began to claim it place in the sun as the dominant continent of the twenty-first century." "This book is the story of the first and most intense period of the birth pangs of this new Asian world. It concentrates particularly on the great crescent of territory between eastern India and Singapore which had once been the commercial heart of Britain's Asian empire and which a revived and self-consciously 'constructive' British Empire now wished to reclaim its own. The book focuses on the years between 1945 and 1949...." Id. at xxvii.).

Bell, David A., The First Total War: Napoleon’s Europe and the Birth of Warfare as We Know It (Boston & New York: Houghton Mifflin, 2007) (This is a well-written and informative book. "Needless to say, the parallels are hardly exact. [] Yet neither are the parallels coincidental. The late eighteenth and early nineteenth centuries saw fundamental changes in Western attitudes toward war and the start of a recurrent historical pattern, of which events since1989 provide only the most recent, if also a particularly clear, example. In this pattern, the dream of perpetual peace and the nightmare of total war have been bound together in complex and disturbing ways, each sustaining the other. On the one hand, a large and sustained current of public opinion has continued to see war as a fundamentally barbaric phenomenon that should soon disappear from a civilized world. On the other hand, there has been a recurrent and powerful tendency to characterize the conflicts that do arise as apocalyptic struggles that must be fought until the complete destruction of the enemy and that might have a purifying, even redemptive, effect on the participants. Today, these twin languages of war and peace define the extremes of Western, and particularly American, thinking on the subject, with 'speakers' of each dismissing their opponents as a species of reality-denying mental patients: the 'delusional' doves versus the 'paranoid' or 'war-mongering' hawks." Id. at 3. "[I]t has become very difficult to discuss war in nonapocaylptic terms." "Why is this the case? Why has the West returned again and again to the twin visions of an end to war and apocalyptic war? I don't pretend to be offering an answer to this entire, vast question. But in this book, O explore how and why the pattern began." Id. at 5.).

Bennett, W. Lance, Regina G. Lawrence, & Steven Livingston, When the Press Fails: Political Power and the News Media from Iraq to Katrina (Chicago & London: U. of Chicago Press, 2007) (This book underscores the importance of an independent press, a thing sorely lacking in the United States today. The 15 pages of references are also worth note.).

Blackhawk, Ned, Violence Over the Land: Indians and Empires in the Early American West (Cambridge & London: Harvard U. Press, 2006) ("As [Toni] Morrison and so many others have come to acknowledge, definitions of America are embedded in racial constructions: 'the American self knows itself as not enslaved, but free; not repulsive, but desirable; not helpless, but licensed and powerful; not history-less, but historical; not damned, but innocent; not a blind accident of evolution, but a progressive fulfillment of destiny.'" "The narrative of American history ... fails to gauge the violence that remade much of the continent before U.S. expansion. Nor have American historians fully assessed the violent effects of such expansion on the many Indian peoples caught within these continental changes. [T]his work suggests that American history is considered a place of comfort, not one of pain; a realm of achievement rather than one of indigenous trauma." Id. at 1 (citations omitted). "On the cold morning of February 26, 1911, in Clover Valley, northeast of Winnemucca, the last documented massacre of Great Basin Indians occurred." [] According to one participant, 'We catched up with ;em and killed the whole works except for one squaw and two kids. We'd [have] killed them too' but for their commander's orders." Id. at 285.).

Blum, Deborah, Ghost Hunters: William James and the Search for Scientific Proof of Life After Death (New York: The Penguin Press, 2006).

Bohm-Bawerk, Eugen von, Capital and Interests: Volume I: History and Critique of Interest Theories translated from the German by George D. Huncke and Hans F. Sennholz (South Holland, Illinois: Libertarian Press, 1959) ("The law has always had a great need for fictions. In order that a relatively small number of simple principles of law might suffice to order the manifold realities of legal practice, the law is often forced to use a fiction which will produce a parallelism between cases which are not in essence alike, but which can in practice be advantageous treated as if they were. It was in this way that the formula fictitiae of Roman civil procedure arose, such as 'legal persons,' or res incorporaes (things incorporeal) and innumerable other fictions of the law." "Now it sometimes happened that a fiction which had grown venerable finally petrified and acquired the credence due the truth. Where for hundreds of years two things had been customarily treated, both in theory and practice, as if they were essentially the same, it might finally and under favorable circumstances be entirely forgotten that their sameness was a fiction." Id. at 166.).

Bohm-Bawerk, Eugen von, Capital and Interests: Volume II: Positive Theory of Capital translated from the German by George D. Huncke. Consulting economist Hans F. Sennholz (South Holland, Illinois: Libertarian Press, 1959).

Bohm-Bawerk, Eugen von, Capital and Interests: Volume III: Further Essays on Capital and Interest translated from the German by Hans F. Sennholz (South Holland, Illinois: Libertarian Press, 1959).

Boonin, David, A Defense of Abortion (Cambridge: Cambridge U. Press, 2003).

Brown, Dee, Bury My Heart at Wounded Knee: An Indian History of the American West (Thirtieth Anniversary Edition) (New York: Henry Holt, 2000).

Brown, Wendy, Politics Out of History (Princeton & Oxford: Princeton U. Press, 2001) (“If the legitimacy of liberal democracy depends on certain narratives and foundational presuppositions, including progress, rights, and sovereignty, what happens when these narratives and assumptions are challenged, or indeed simply exposed in their legitimating function? What kinds of political cultures are produced by this destabilization of founding narratives and signal terms? What kinds of politics do these narratives produce in their destabilized or broken form? How does their disintegration affect left and liberal political aims, possibilities, sentiments, and discourse? How do we live in these broken narratives, when nothing has taken their place? And how do we conjure an emancipatory future within a liberalism out of history? If the fabric of (universal) justice premised on the (universal) man of the liberal dream is in tatters, on what do we pin our hopes for a more just society? And without the belief in progressive history carrying liberalism toward whatever this reformulation aim might be, what is the engine of historical movement that would realize these hopes?.” Id. at 14. All good questions, though I am not sure the author has provided good answers. Or a good way to go about thinking through these questions.).

Brown, Wendy, Regulating Aversion: Tolerance in the Age of Identity and Empire (Princeton & Oxford: Princeton U. Press, 2006) (This is a provocative and important discourse on tolerance. You are encouraged particularly to read Chapter 5, Tolerance as Museum Object: The Simon Wiesenthal Center Museum of Tolerance.).

Campbell, James T., Middle Passages: African American Journeys to Africa, 1787–2005 (New York: The Penguin Press, 2006).

Caldwell, Lucy, Leaves (London: Faber and Faber, 2007) (a play).

Caldwell, Lucy, Where They Were Missed (London & New York: Viking/Penguin Books, 2006) (fiction).

Clarke, Erskine, Dwelling Place: A Plantation Epic (New Haven & London: Yale U. Press, 2007) ("Dwelling Place is a history of two peoples living together on the Georgia coast from 1895 to 1869. It is a single narrative because their lives were linked and interwoven in innumerable and often intimate ways and because this coastal land shaped all who lived along its rivers, by it swamps, and on its islands and sandy hills, even as those who lived there shaped the land itself. Yet Dwelling Place is also two histories--one of whites and one of blacks, one of owners and one of slaves. For in spite of all their closeness and all the ways their lives were bound together on this particular part of the Georgia coast, there was a great divide between those who were owned and those who owned, so great was the difference between and so different was their experience that Dwelling Place is necessarily two histories of one place and one time." Id. at ix. So it was then on the Georgia coast, so it is now in America.).

Crace, Jim, The Pesthouse (New York: Doubleday, 2007) (Fiction. From the jacket cover: "Once the safest, most prosperous place on earth, the United States is now a lawless, scantly populated wasteland, The machines have stopped. The government has collapsed. Farmlands lie fallow and the soil is contaminated by toxins. Across the country, families have packed up their belongings to travel eastward toward the one hope left: passage on a ship to Europe." Of course, there is no particular reason why Europe would want them (back).).

DeLillo, Don, Falling Man (New York: Scribner, 2007) (fiction).

Donald, David, Charles Sumner and The Rights of Man (New York: Knopf, 1970).

Donald, David, Charles Sumner and The Coming of the Civil War (New York: Knopf, 1961).

Donald, David, The Politics of Reconstruction 1863-1867 (Baton Rouge: Louisiana State U. Press, 1965) ("The Reconstruction drama, it is clear, fails to fascinate the popular mind. To most Americans these postwar years seem a dark, unpleasant interlude of failure: failure of Southern whites to restore a social order which they cherished; failure of Negroes to secure basic civil rights; failure of the North to impose its values on the conquered section." Id. at ix-x.).

Donald, David Herbert; and Harold Holzer, eds., Lincoln in The Times: The Life of Abraham Lincoln as Originally Reported in The New York Times (New York: St. Martin’s Press, 2005).

Drezner, Daniel, W., All Politics Is Global: Explaining International Regulatory Regimes (Princeton & Oxford: Princeton U. Press, 2007) (Worthwhile read for those interested in international law, international relations, international business transactions, intellectual property, environmental regulations, biotechnology regulation (especially with respect to genetically modified organisms). "If there is a recurring theme that runs though the literature on globalization and global governance, it is that economic globalization attenuates state power." "This book concludes otherwise. The globalization of consumption matters more than the globalization of production; it means that all producers have a vested interest in accessing sizeable markets. Because of this, the governments that write the rules for large internal markets retain significant influence in determining the course of global regulatory and technical standards. Large markets have a gravitational effect on smaller actors. The market power, and implicit coercive power, of great power governments shapes expectations about regulatory coordination in ways that favor their preferred standards." Id. at 204.).

Duberman, Martin, The Worlds of Lincoln Kirstein (New York: Knopf, 2007) (I read this, first, because I think the author, Martin Duberman, is very good writer, historian and biographer, and, second, because the book received high praise in the New York Times Book Review. The book does not disappoint, providing insight to a social, cultural, creative, artsy, etc., segment of American life which I am unfamiliar. Making art, like making law, like make sausage, is something one may not want to look too closely. My favorite passage, however, concerns not Lincoln Kirstein, but rather his father, Louis Kirstein. At the father’s memorial serve “One of the speakers, Ben Selekman, head of Boston’s Associated Jewish Philanthropies, wisely aid of Louis, ‘He could always forgive those who were weak, but never those who were shoddy. He understood human frailty, but despised human cant. He could lend a hand to men who occasionally might falter, but he could not tolerate those who shirked.’” Id. at 383.).

Du Plessis, Jean Jacques, James McConvill, & Mirko Bagaric, Principles of Contemporary Corporate Governance (Cambridge: Cambridge U. Press, 2005).

Eisgruber, Christopher L., & Lawrence G. Sager, Religious Freedom and the Constitution (Cambridge & London: Harvard U. Press, 2007) ("[W]e elaborate an alternative understanding of religious freedom that is above all shaped by concerns of equality. The model, which we call 'Equal Liberty,' has three distinct components. First, it insists in the name of equality that no members of our political community ought to be devalued on account of the spiritual foundations of their important commitments and projects. Religious faith receives special constitutional solicitude in this respect, but only because of its vulnerability to hostility and neglect. Second, and in the name of equality, Equal Liberty insists that aside from this deep and important concern with discrimination, we have no constitutional reason to treat religion as deserving special benefits or as subject to special disabilities. Finally, Equal Liberty insists on a broad understanding of constitutional liberty generally. It demands that all persons--whether engaged in religiously inspired enterprises or not--enjoy rights of free speech, personal autonomy, associative freedom, and private property that, while neither uniquely relevant to religion nor defined in terms of religion, will allow religious practice to flourish. We refer to Equal Liberty's first two components as its antidiscrimination and neutrality principles, respectively, and its third component as its generally liberty principles." Id. at 52-53. This is--I think--an important book on alleged religion-related freedom. The arguments leave me unconvinced. Still. Religious Freedom and the Constitution is a very worthwhile read.).

Hosseini, Khaled, A Thousand Splendid Suns (New York: Riverhead Books, 2007) (fiction).

Hurd, Ian, After Anarchy: Legitimacy and Power in the United Nations Security Council (Princeton & Oxford: Princeton U. Press, 2007) ("But what kind of difference does legitimacy make international politics, and under what circumstances does it work? What kind of power is it? How can it be transferred among actors, and how can it be used by states as a tool in their own pursuit of political advantage? These are the questions pursued in this book. Along the way I show that legitimacy is central to the power of international organizations (IOs) and to world politics more generally, and also that we can use it to begin to explain some phenomena in world politics that were hitherto unaccounted for." Id. at viii.).

Hutchinson, George, In Search of Nella Larsen: A Biography of the Color Line (Cambridge & London: Belknap/ Harvard U. Press. 2006) ("Just as Larsen was traumatized in childhood by the particular ways in which the color line affected interracial families, attempting (very successfully for the most part) to make such families disappear, so has the understanding of her life and work been determined by the later intellectual and institutional effects of that very phenomenon. Related patterns can be found in the interpretation of Larsen's fiction and its place in literary history. Her 'invisibility,' or mysteriousness, is a precise marker of unresolved contradictions, of moral, political, and imaginative failures endemic to American society. And there is no better way to observe their workings than by reconstructing her life and reputation. To write the life of Nella Larsen is to write a biography of color line culture by way of what that culture hides." Id. at 10.).

Isaacson, Walter, Einstein: His Life and Universe (New York: Simon & Schuster, 2007).

Jacobson, Matthew Frye, Roots Too: White Ethnic Revival in Post-Civil Rights America (Cambridge & London: Harvard U. Press, 2006) (This is a very telling piece of scholarship on the emergence of the ‘Ellis Island whiteness.’ “The leader of an antiracism workshop in the 1990s once noted a disquieting inclination on the part of the group’s white participants to disassociate themselves from the history and persistent reality or white privilege by emphasizing some purportedly not-quite-white background. ‘I’m not white; I’m Italian,’ one would say. Another, ‘I’m Jewish.’ After this ripple had made its way across the group, the seminar leader was left wondering, ‘What happened to all the white people who were here just a minute ago.’” Id. at 1-2 (citation omitted). “Everybody knows exactly what is meant by the words ‘illegal alien.’ [] Twenty years after John F. Kennedy addressed the admiring throngs in Galway on the special affinities between Irishness and Americanness, Americans quietly began to note—positively, for the most part—a new wave of immigration from the Emerald Isle. The immigration happened to be illegal, though no one seemed to mind terribly. Beginning in about 1982 a new generation of Doughertys and Flahertys and Ryans began to disembark at JFK and Logan airports, their intentions to stay and work in the United States safely tucked in their six-month tourist visas. They arrived by the thousands—as many as thirty thousand settling in Boston and fifty thousand in New York within the first few years of the new wave—and this when the political culture at large was in full mobilization around the ‘crisis’ represented by illegal immigration. The fact that Americans organized to aid the undocumented Irish at a time when ‘control of our borders’ was among the nation’s chief concerns says a great deal about out national life beyond the melting pot. ‘Because of my color,’ says Guadalupe Avila, ‘I think I will never be an American.’ By contrast, the new Irish, as the New York Times puts it, were “Illegal, but Not Alien.’ This was a ‘white’ country after all, and the Irish disembarking at JFK Airport were learning that fact as surely as were the Mexicans at the border near El Paso or Nogales.” Id. at 389-390 (citations omitted).).

Kata, Elizabeth, Be Ready with Bells and Drums (New York: St. Martin’s Press, 1961) (This novel is the basis for the Guy Green film, A Patch of Blue (1965), starring Sidney Poitier and Eliabeth Hartman. “'Before I met you,' I said, ‘I thought the best word in the world was ‘bright.’ [] ‘And now?’ asked Gordon. ‘And now, since I know you, I know that ‘friend’ is the grandest, biggest and best word . . . ‘ ‘I know a better word?’ [] ‘“Tolerance”!’ ‘”Tolerance”! I don’t think much of that to have for a favorite word,’ I was disappointed. ‘Don’t you? Gordon asked. ‘”Friend” is much nicer, much warmer,’ I insisted. ‘Without tolerance there can be no friendship.’ [] ‘Why is it such a good word?’ I asked. ‘Among many things,’ said Gordon, ‘it means freedom of thought. It does away with bigotry. If you have it, it means you have a broad mind. It means: don’t knock your brother—your neighbor—don’t knock anyone because he is different, look, thinks, eats, loves, worships or hates differently from the way you do all those things yourself.’ How ‘bout that! Man! He had a fine word, for sure.” Id. at 59-60.).

Khalidi, Rashid, Resurrecting Empire: Western Footprints and America’s Perilous Path in the Middle East (Boston: Beacon Press, 2004) (“Not surprisingly, most commentators in the media do not realize that many influential Arab, Turkish, and Iranian thinkers and intellectuals have had a strong liberal orientation for more than a century. They are unaware of the pioneering early constitutional and democratic experiments that took place in the Middle East, and of the many efforts to establish parliamentary systems there, in the twentieth century. They are unlikely to know how Western powers repeatedly undermined these systems, and how much resentment these and other foreign interventions caused among the peoples of this region over several generations. Many of these commentators, and many politicians, have pontificated about the complete absence of democratic traditions in the Islamic world and in the Middle East in particular, about how ‘Islam’ is antithetical to democracy, and why ‘they’ resent ‘us’ because of our way of life. This contemptuous dismissal of real history and real traditions in favor of crude stereotypes and gross over simplifications has passed with insufficient response from the only people qualified to counter it, whether experts living and working in the Middle East or academics who study the region.” “The silence of the experts is part of a larger problem, of why public discourse in the United States about high-profile issues in foreign affairs is so often driven by the lowest common denominator, by ill-informed pundits rather than by people who are actually knowledgeable about the rest of the world. Perhaps it also reflects the general preference for what is familiar and reassuring over that is strange and discomforting. One of the objectives of this book is to reflect the history that is behind perceptions in the Middle East of the American role there, perceptions that may not match what Americans think of themselves and their country’s role in the world.” Id. at xi-xii (italics added).).

Kirkpatrick, Sidney D., The Revenge of Thomas Eakins (New Haven & London: Yale U. Press, 2006).

Kluger, Richard, Star Witness (Garden City, NY: Doubleday, 1979) (Fiction. This read, though dated, may be of small amusement to law students. "'You know,' he said, 'I'm beginning to think you enjoy being difficult.'" "That wasn't it at all, though. Something quite different was happening. It was one of those moments that are usually hard to recognize until long after and it was but just in time. I had rounded a bend in the highway and there was a fork dead ahead. The road signs told me which way each fork went by not where it would land me. I could continue as I'd been going all my life--part pluck, part brass, but essentially programmed to please by excelling as polite society directed. Or I could veer off from that heavily patrolled route and take my chances going where I wanted and how. The risks and rewards of either route were naturally unknowable ahead of time, but I was getting tired as hell locked to the straight and narrow." Id. at 120-121. "What was integrity but the strength to say no when the world wanted to kiss you to death?" Id. at 299 (italic added).).

Lancaster, Carol, Foreign Aid: Diplomacy, Development, Domestic Politics (Chicago & London: U. of Chicago Press, 2007) (Are we now a global welfare-state? Studying foreign aid by Denmark, France, Germany, Japan, and the United States, the author argues: "Foreign aid began as one thing and became another. It began as a realist response to the deepening Cold War between East and West. While continuing to be deployed in the service of national interests, aid eventually created the basis for a new norm in relations between states--that better-off states had an obligation to provide aid to less-well--off states to better the human condition in the latter. That norm did not exist in the middle of the twentieth century. It was widely accepted and unchallenged by the end of the century." Id. at 214.).

Leader, Zachary, The Life of Kingsley Amis (New York: Pantheon, 2007).

Lear, Jonthan, Radical Hope: Ethics in the Face of Cultural Devastation (Cambridge & London: Harvard U. Press, 2006) (From the jacket cover: "Shortly before he died, Plenty Coups, the last great Chief of the Crow Nation, told his story--up to a certain point. [] In Jonathan Lear's view, Plenty Coups's story raises a profound ethical question that transcends his time and challenges us all: how should one face the possibility that one's culture might collapse?" "This is a vulnerability that affects us all--insofar as we are all inhabitants of a civilization, and civilizations are themselves vulnerable to historical forces. How should we live with vulnerability? Can we make any sense of facing up to such a challenge courageously? Using the available anthropology and history of the Indian tribes during their confinement to reservations, and drawing on philosophy and psychoanalytical theory, Lear explores the story of the Crow Nation at an impasse as it bears upon these questions--and these questions as they bear upon our own place in the world.").

Massad. Joseph A., Desiring Arabs (Chicago & London: U. of Chicago Press, 2007) ("Desiring Arabs traces the history of the unfolding of the concepts of culture and civilization in the contemporary Arab world. It is decidedly not a history of 'Arab sexuality,' whatever that is, but an intellectual history of the representation of the sexual desires of Arabs in and about the Arab world and how it came to be linked to civilizational worth." Id. at 49.).

Matthiessen, Peter, In the Spirit of Crazy Horse (New York: Viking, 1981, 1983, 1991) ("On June 26, 1975, in the late morning, two FBI agents drove onto Indian land near Oglala, South Dakota, a small village on the Pine Ridge Reservation. Here a shoot-out occurred in which both agents and an Indian man were killed. Although large numbers of FBI agents, Bureau of Indian Affairs (BIA) police, state troopers, sheriff's deputies, and vigilantes surrounded the property within hour of the first shots, the numerous Indians involved in the shoot-out escaped into the hills." "The death of the agents inspired the biggest manhunt in FBI history. Of the four men eventually indicted for the killings, one was later released because the evidence was 'weak,' and two others were acquitted in July 1976 when a jury concluded that although they had fired at the agents, they had done so in self-defense. The fourth man, Leonard Peltier, indicted on the same charges as his companions but not tried until the following year, after extradition from Canada, was convicted on two counts of murder in the first degree, and was sentenced to consecutive life terms in prison, although even his prosecutors would dismiss as worthless the testimony of the only person ever to claim to have witnessed his participation in the killings. This testimony was also repudiated by the witness, who claimed to have signed her damning affidavits under duress, as part of what one court of appeals judge would refer to as a 'clear abuse of the investigative process by the FBI.'" "Whatever the nature and degree of his participation at Oglala, the ruthless persecution of Leonard Peltier had less to do with his own actions than with underlying issues of history, racism, and economics, in particular Indian sovereignty claims and growing opposition to massive energy development on treaty lands and the dwindling reservations. In the northern Plains, the opposition was based on a treaty, signed in 1868 between the United States and the Lakota nation at Fort Laramie, in Dakota Territory, which recognized Lakota sovereignty in their Dakota-Wyoming homelands and hunting grounds, including the sacred Pah Sapa, the Black Hills. With the discovery of gold in the Black Hills a few years later, this treaty was illegally repudiated by the U.S. government; not until the 1970s was the justice of the Lakota treaty claim recognized in court." Id. at xx. "In the spring of 1983, two months after this book's first publication, the author and The Viking Press--and also some South Dakota booksellers--were sued for libel by former Governor William Janklow for $24 million. In January 1984, both author and publisher and attorney Bruce Ellison were sued by Special Agent David Price of the FBI for $25 million, or $49 million in all. Since Price had assured me in our lengthy interview that he never made a move without the approval of his superiors, and since an FBI agent's salary could never pay for the very expensive attorneys he retained, it was assumed that the FBI itself had sponsored his suit in order to lend some sort of credibility to the suit by Janklow...and that both suits were intended mainly as chastisement and harassment as well as a means of keeping this book out of circulation." "Eight years of litigation and eight court decisions, all the way to the United States Supreme Court, have borne out the original opinion of Viking's attorneys that the book was free of libel, yet the legal costs to the defendants and their insurance company have already exceeded $2 million, in addition to the losses suffered when the publisher withdrew the book. And because other publishers were intimidated by the threat of suit, there has never been a paperback edition nor a foreign one, despite the great interest in the Peltier case in Europe." Id. at 565. These are things to think about in this so-called 'war on terror' era, where criticism of the government is seriously frowned upon, where too many 'journalists are embedded with the government and not independent, where extensive use of government surveillance and infiltration and informants goes barely questioned and unchecked. As always I ask, how well do we Americans know and understand our own history? How well do we lawyers, law professors, and law students know and understand American legal history? Read this book!! For more information on the Leoard Peltier case and its aftermath through 2006, see the entry under his name on Wikepedia. Please take special note: I am not in a position to say whether Leonard Peltier is quilty or not, or whether the trial was fair or not, etc. That is for you to decide. ).

Mathis, Deborah, Yet a Stranger: Why Black Americans Still Don’t Feel at Home (New York: Warner Books, 2002) (Contain a few interesting observations; the analysis is thin, however. "In his 1968 treatise, The New Racialism, Harvard professor Daniel Patrick Moynihan--later a U.S. senator from New York--adopted a new terminology for racial prejudice. While acknowledging 'a streak of the racist virus in the American bloodstream,' Moynihan chose to distinguish the common strain as 'racialism.' It was a phenomenon, he said, 'a profoundly different position from that of racism, with its logic of genocide and subordination, And it does no service whatever to this polity to identify as racist attitudes that which are merely racialist and which will, usually, on examination, be bound to have essentially a social class basis.' Moynihan may have been on to something. Not that the distinction dulls the pain." Id. at 3-4. Query: Are we all racialist now? Is discrimination on a social class basis something Americans wants as part of their value system? Racialism may not be a bad as racism, but it is still pretty terrible and something a civilized person would strive to delete from their view of the the world.).

McEwan, Ian, Chesil Beach (New York: Doubleday, 2007) (fiction).

McGrath, Melanie, The Long Exile: A Tale of Inuit Betrayal and Survival in the High Arctic (New York: Knopf, 2006) (From the jacket cover: "[In 1952], "the Canadian government forcibly relocated three dozen Inuit from the east coast of Hudson Bay to a region of the high artic that was 1,200 miles farther north. Hailing from a land rich in caribou and artic foxes, whales and seals, pink saxifrage and heather, the Inuit were taken to Ellesmere Island, an arid and desolate landscape of shale and ice virtually devoid of life. The most northerly landmass on the planet, Ellesmere is blanketed in darkness for four months of the year. There the exiles were left to live on their own with little government support and few provisions.".

Nasaw, David, Andrew Carnegie (New York: The Penguin Press, 2006).

Nussbaum, Martha C., The Clash Within: Democracy, Religious Violence, and India’s Future (Cambridge: Belknap/Harvard U. Press, 2007) (This is a very informative read. "This is a book about India for an American and European audience. One of its central purposes is to bring to the attention of Americans and Europeans a complex and chilling case of religious violence that does not fit some common stereotypes about the sources of religious violence in today's world. Its second and larger aim is to use this case to study the phenomenon of religious violence and, more specifically, to challenge the popular 'clash of civilizations' thesis, notably articulated by Samuel P. Hungtington, according to which the work is currently polarized between a Muslim monolith, bent on violence, and the democratic cultures of Europe and North America. India, the third largest Muslim nation in the world (after Indonesia and Pakistan), is far from fitting this pattern. Instead, in the Gujarat pogroms of 2003, we find the use of European fascist ideologies by Hindu extremists to justify the murder of innocent Muslim citizens. Through a study of this case, its historical background, and the ideological debates surrounding it, I argue that the real clash is not a civilization one between 'Islam' and 'the West,' but instead a clash within virtually all modern nations--between people who are prepared to live with others who are different, on terms of equal respect, and those who seek the protection of homogeneity, achieved through the domination of a single religious and ethnic tradition. At a deeper level, the thesis of this book is the Gandhian claim that the real struggle that democracy must wage is a struggle within the individual self, between the urge to dominate and defile the other and a willingness to live respectfully on terms of compassion and equality, with all the vulnerability that such a life entails." "This book about India also suggests a way to see America--both America as it faces outward, relating to a world in which cultures are complex, not simple; and America in relation to itself." Id. at ix. "Distinguished historical writing exposes tensions and internal conflicts--the 'clashes within' a nation or region as class, ethnicity, religion, and gender play their roles in events. That sort of historical writing is helpful for politics because it encourages a society to scrutinize itself, asking what related tensions may be in play, and how some errors of the past might be avoided in dealing with them. When, by contrast, history is written as a mythic war between the pure forces of good and the forces of evil, the result is bound to be bad historical writing, because the world is not pure, and no culture is pure within it. When we look at the past through the lenses of such constructed history, we are soothed. We stop criticizing our own society, asking what tensions it contains; instead, we imagine that we can blame all our problems on outsiders. We are also encouraged not to scrutinize ourselves, asking ourselves what seeds of violence and domination our own lives contain. Instead, we are seductively led to imagine that we can blame all our problems on others." Id. at 237.).

Oates, Joyce Carol, The Gravedigger’s Daughter (New York: Ecco, 2007) (fiction).

Ondaatje, Michael, Divisadero (New York: Knopf, 2007) (fiction).

Pfaelzer, Jean, Driven Out: The Forgotten War Against Chinese Americans (New York: Random House, 2007) ("At nine o'clock on the morning of November 3, 1885, steam whistles blew at the foundries and mills across Tacoma, to announce the start of the purge of all the Chinese people from the town. Saloons closed and police stood by as five hundred men, brandishing clubs and pistols, went from house to house in the downtown Chinese quarter and through the Chinese tenements along the city's wharf." "Two days later, Tacoma's Chinatown was destroyed by fire." Id. at xv-xvi. "The Tacoma roundup was one of a hundred Chinese pogroms that raged across the Pacific Northwest in the late nineteenth century." Id. at xviii. "The Driven Out was spurred on by Irish and German immigrants fearful of job competition and by destitute, unemployed white migrants from the East Coast who felt betrayed by the false promises of new industry in eastern cities. When these men came to the American West, they were enraged to discover that the railroads and new land barons ... had a strangle hold on land and timber along the Pacific Coast. West Coast Jews, too, participated in the anti-Chinese violence: in San Francisco in the 1880, the Anti-Coolie League met at B'nai B'rith on Friday nights, at the start of the Jewish Sabbath." Id. at xx. "Surely the term expulsion doesn't fully represent the rage and violence of these purges. What occurred along the Pacific Coast, from the gold rush through the turn of the century, was ethnic cleansing. The Chinese called the roundups in the Pacific Northwest Pai Hua--the Driven Out." Id. at xxix.).

Phillips, Anne, Multiculturalism Without Culture (Princeton & Oxford: Princeton U. Press, 2007).

Rampersad, Arnold, Ralph Ellison: A Biography (New York: Knopf, 2007).

Reich, Tova, My Holocaust (New York: Harper Collins, 2007) (Fiction. It is best to quote from the advance praise from Cynthia Ozick. "Here is a novel that cuts, cuts, cuts: it is satire, caricature, comedy, farce; it makes you laugh and wince, often simultaneously; judges and condemns; but it also clears away cant and pomposity and fakery. And much more than merely cant and pomposity and fakery: it accuses the prevailing time of American society, a cultishness cultivated from the top down--the cult of rivalrous victimization, celebrated among the humanities in all American universities, from women's studies to black studies to postcolonial studies, from literature departments to history departments to Middle Eastern departments, all those braggart elitist realms where grievance and suffering are crowned with laurel." "Tova Reich's My Holocaust is a ferocious work of serious satiric genius." YES!! ).

Richardson, Heather Cox, The Death of Reconstruction: Race, Labor, and Politics in the Post-Civil War North, 1865-1901 (Cambridge & London: Harvard U. Press. 2001) ("The conflict between the idea of a harmonious economic world based on free labor and the idea of class struggle pervaded late nineteenth-century politics and directly affected the question of African-Americans' role in American life. In their symbolic position as the nation's stereotypical workers, freedpeople were both strongest and most vulnerable." Id. at xiii-xiv.).

Richardson, Heather Cox, The Greatest Nation of the Earth: Republican Economic Policies During the Civil War (Cambridge & London: Harvard U. Press. 1997) (thoughtfully explores how free labor ideology shaped economic and political policies in the North during the Civil War).

Richardson, Heather Cox, West from Appomattox: The Reconstruction of America After the Civil War (New Haven & London: Yale U. Press, 2007) ("A week after the 2004 presidential election, a friend sent me a map of America with the red and blue states superimposed over the Confederate and Union states of the Civil War years. The Republican red states fits almost perfectly over the southern states that supported the Confederacy and the western plains that were territories during the 1860s, and the Democratic blue states fit closely over the states that had supported the Union. The caption of the map suggested that today's voters were still fighting the same issues over which they went to war in 1851. [] I wrote back, 'But it 's not the Civil War that made today's map match the earlier one. The story is all about reconstruction.'" "This is the book that explains why today's political map looks kike a map of the 1860s. It argues that in the years between 1865 and 1901, a new definition of what it meant to be an American developed from a heated debate over the proper relationship of the government to its citizens. In spring 1865, Americans everywhere had to ask themselves how the different sections of the country could reconstruct themselves into a nation that offered individuals economic opportunity and political freedom at the same time that it protected private property." Id. at 1.).

Richardson, Robert D., William James: In the Maelstrom of American Modernism, A Biography (Boston & New York: Houghton Mifflin, 2006) ("This is an intellectual biography of William James. That is to say, it seeks to understand his life through his work, not the other way around." Id. at xiii.).

Ringen, Stein, What Democracy is For: On Freedon and Moral Government (Princeton & Oxford: Princeton U. Press, 2007) (Interesting read. "We want many things from our government, and never more so than in the advanced democracies where we enjoy unlimited freedom to make demands on those who rule. We are not terribly worried that we demand more than governments can possibly deliver and we do not hesitate to demand different things that cannot come in the same package. We want economic growth and environmental protection and we expect our governments to deliver both, although we know it is impossible to maximize both at the same time. We want more and better services and lower taxes and we expect the government to square the circle. All that is in the nature of the democratic tug of war and not something anyone should get themselves worked up about. But beneath our many and often contradictory claims on governments and expectations of goods we want them to deliver, there must be some yardstick of value. Good governments deliver goods, but we must hope there is something more to it. Presumably we want democracy because we need governance and because we believe democracy encourages good government. But what, finally, is it that makes governments good." "The answer I have arrived at is this. It starts from well-being, from living of good lives." "Democracy has a purpose. It is (or rather, should be) for the good of the persons who live under its governance. It is to help them to live in autonomy and security and to get on reasonably with their lives as they wish. And it is to enable them to trust that they and their children can live as their own masters also in the future. It is, in short, for the freedom of the common man. It's freedom that democracy is finally for. That's the idea this book is built around: to analyze democracy according to its purpose, to find that purpose in the lives of persons and to think of it as ultimately a matter of freedom." Id. at 4-5.).

Robbins, Bruce, Upward Mobility and the Common Good: Toward a Literary History of the Welfare State (Princeton & Oxford: Oxford U. Press, 2007) (“The rediscovery of class, which got a brief boost from Hurricane Katrina and the flooding in New Orleans in 2005, has in fact been going on for some years, both in the culture at large … and in academic conferences and journals. We may think we know why class is usually ignored. It’s worth speculating about why class is remembered when it is remembered. The answer may have something to do with the pleasure taken in upward mobility stories.” Id. at xi. “My analysis of the genre’s erotic mechanism will suggest that the new society the protagonist seeks to enter is not merely a featureless and uninteresting ‘status quo,’ as so many readings seem to assume it must be. It will suggest that the social destination is as unnatural as the bizarre social bonding that facilitates the transition upward, and unnatural in some of the protégé, however ambiguous, are freed up from the prevailing cynicism and thus allowed to become allegorical of social hypotheses.” Id. at xiv. “Early in Thomas Harris’s novel Silence of the Lambs (1988), Dr. Hannibal Lecter, psychiatrist, serial killer, and cannibal, makes a proposal to Clarice Starling, FBI trainee, through the bars of his cell. ‘I’ll give you what you love most, Clarice Starling.’ ‘What’s that, Dr. Lecter?’ “Advancement, of course.’ As usual, Lecter is right. Silence of the Lambs could be described in various ways—as a Gothic horror story, a detective thriller, or an oblique argument for vegetarianism. But if what matters is what Starling wants most (which is also what she gets), then the novel should be classified as a story of advancement, a modern-day Cinderella fable.” Id. at 1 (citations omitted).).

Roberts, Gene & Hank Klibanoff, The Race Beat: The Press, The Civil Right Struggle, and The Awakening of a Nation (New York: Knopf, 2007) (an important read).

Ross, Dennis, The Missing Peace: The Inside Story of the Fight for Middle East Peace (New York: Farrar, Straus & Giroux, 2004).

Ross, Dennis, Statecraft and How to Restore America’s Standing in the World (New York: Farrar, Straus & Giroux, 2007).

Sandbrook, Dominic, Eugene McCarthy: The Rise and Fall of Postwar American Liberalism (New York: Knopf, 2007).

Shlaes, Amity, The Forgotten Man: A New History of the Great Depression (New York: HarperCollins, 2007) (a very good read).

Slaughter, Anne-Marie, The Idea That is America: Keeping Faith with Our Values in a Dangerous World (New York: Basic Books, 2007) (It is a challenge to write about one's country's values without being rather hokey or without simply engaging in jingoism. Professor Slaughter does good job of avoiding those pitfalls. The book is written for laypersons, so political scientists, lawyers, historians, etc., may take issue with a point here or there. Still, Professor Slaughter's basic point remains sound: America has lost her way, and must struggle to find that way again. "Browsing in a used book store in Los Angeles, I came across a dusty black book called The March of Freedom: A Layman's History of the American People. I opened it and read the story of 'one man's hunt for what he felt he needed most to bring home to himself.' That man was William Harlan Hale.... Writing in 1947, when America had emerged as the most powerful victor of World War II, he seemed to feel exactly as I do today, that the America he loved was turning into a country he no longer recognized." Id. at ix.).

Smith, Mark A., The Right Talk: How Conservatives Transformed the Great Society into the Economic Society (Princeton & Oxford: Princeton U. Press, 2007) (This is an interesting and enlightening book, especially for those who understand the importance of rhetoric in political and legal discourse. Smith discusses the reframing of political discourse into economic terms, particularly economic terms playing on economic insecurity. "This book, then, undertakes the challenge of explaining how, why, and with what effects American politics became reoriented around economic interpretations of issues. [] The impetus for political change came from a climate of economic insecurity that spread across the population in the early 1970s and intensified in the succeeding decades. [] Under the different context for politics created by economic insecurity, new policy directions resulted from the interaction of political rhetoric, the programs advocated by the two major parties, and the public's reaction to the options and arguments offered to it. Following the rise of economic insecurity, conservative intellectuals revived old ideas such as supply-side economics and opposition to government regulation. Publicized through a recently created network of intellectual institutions, those ideas soon commanded widespread attention." Id. at 17 (italic in original).).

The Staff, Social Sciences 1, The University of Chicago, ed., The People Shall Judge: Readings in the Formation of American Policy, Volumes 1 and 2 (Chicago: U. of Chicago Press, 1949) (These two volumes are/were an incredible set of readings for a generation of undergraduate students at The University of Chicago. In today's shortsighted market driven college and university system, one in which education is barely a second thought, few students are exposed to the equivelent of these writings. Undergraduate education, as well as American society as a whole, is the worse for it. "This book expresses the faith of one American college in the usefulness of liberal education to American democracy. If the United States is to be a democracy, its citizens must be free. If citizens are to be free, they must be their own judges, If they are to judge well, they must be wise. Citizens may be born free; they are not born wise. Therefore, the business of liberal education in a democracy is to make free men wise Democracy declares that 'the people shall judge.' Liberal education must help the people to judge well." Id. at vii. As someone who teaches at a law school I want to read and understand 'liberal education,' in the passage just quoted, to include specifically a liberal legal education specifically. Unfortuantely, few law schools today promote, or approximate, liberal education; most have devolved from professional school to trade school. "Is national improvement the final good to be expected from this undertaking? Indifferent to political frontiers, liberal education seeks a universal good; and free men, when they have also become wise, discover a concern for freedom everywhere. The college teachers who prepared this book can fairly claim that even those most general ends of education and politics are served by the kind of study of American history in which they and their students are engaged. They need only to pursue a major American issue to its roots in order to discover that, for all its local idiom and occasion, it was and is a universal human issue, too. The protagonists in the American controversies over federation and slavery and revolution were joining Locke and Pericles, Rousseau and Ghandi, in that 'great conversation' about Man and among all men which [is] the touchstone of civilization. This 'civilization of the dialogue' may someday culminate in an hour when the great conversation will be carried on by men without a country speaking Esperanto without an accent. Pending that hour, it may well be that the most authentic citizens of the world will not be rootless cosmopolites but active citizens of those nations which have sought to liberate their people not from but through a knowledge of their own history. He who would move the world must first be given a place to stand." Id. at viii.).

Taleb, Nassim Nicholas, The Black Swan: The Impact of the Highly Improbable (New York: Random House, 2007) (Most lawyer-types, including academic lawyers, will find this book 'uncomfortable.' "What we call here a Black Swan (and capitalize it) is an event with the following three attributes." "First, it is an outlier, as it lies outside the realm of regular expectations, because nothing in the past can convincingly point to its possibility. Second, it carries an extreme impact. Third, in spite of its outlier status, human nature makes us concoct explanations for its occurrence after the fact, making it explainable and predictable." Id. at xvii-xviii. "The beat in this book is not just the bell curve and the self-deceiving statistician, nor the Platonified scholar who needs theories to fool himself with. It is the drive to 'focus' on what makes sense to us. Living on our planet, today, requires a lot more imagination than we are made to have. We lack imagination and repress it in others." "To summarize: in this (personal) essay, I stick my neck out and make a claim, against many of our habits of thought, that our world is dominated by the extreme, the unknown, and the very improbable (improbable according our current knowledge)--and all the while we spend out time engaged in small talk, focusing on the known, and the repeated. This implies the need to use the extreme event as a starting point and not treat it as an exception to be pushed under the rug. I also make the bolder (and more annoying) claim that in spite of our progress and the growth in knowledge, or perhaps because of such progress and growth, the future will be increasingly less predictable, while both human nature and social 'science' seem to conspire to hide the idea from us." Id. at xxvii-xxviii. "Academic libertarian: someone (like myself) who considers that knowledge is subject to strict rules but not institutional authority, as the interest of organized knowledge is self-perpetuation, not necessarily truth (as with governments). Academia can suffer from an acute expert problem (q.v.), producing cosmetic but fake knowledge, particularly in narrative disciplines (q.v.), and can be a main source of Black Swans." Id. at 307. Yet my favor passage concerns the 'antilibrary.' "Read books are far less valuable than unread ones. The library should contain as much of what you do not know as your financial means, mortgage rates, and the currently tight real-estate market allows you to put there. You will accumulate more knowledge and more books as you grow older, and the growing number of unread books on the shelves will look at you menacingly. Indeed, the more you know, the larger the rows of unread books. Let us call this collection of unread books an antilibrary." "We tend to treat our knowledge as personal property to be protected and defended. It is an ornament that allows us to rise in the pecking order. [] People don't walk around with anti-resumes telling you what they have not studied or experienced..., but it would be nice if they did. Just as we need to stand library logic on its head, we will work on standing knowledge itself on its head. Note that the Black Swan comes from our misunderstanding of the likelihood of surprises, those unread books, because we take what we know a little too seriously." "Let us call an antischolar--someone who focuses on the unread books, and makes an attempt not to treat his knowledge as a treasure, or even a possession, or even a self-esteem enhancement device--a skeptical empiricist." Id. at 1-2.).

Trudeau, G. B., The War Within: One More Step at a Time (A Doonesbury Book) (Kansas City: Andrews McMeel, 2005).

Tsypkin, Leonid, Summer in Baden-Baden translated from the Russian by Roger Keys and Angela Keys, introduction by Susan Sontag (New York: New Directions, 1987, 2001) (fiction).

Unger, Robert Mangabeira, The Self Awakened: Pragmatism Unbound (Cambridge: Harvard U. Press, 2007) (I find Unger's work(s) neither insightful nor useful, and often containing gross misuses of language and logic. Still, I read his work(s) in an effort to determine why some people find his work(s) otherwise.)

Vollmann, William T., Poor People (New York: Ecco, 2007).

Walzer, Michael, Menachem Lorberbaum, Noam J. Zohar, & Yair Lorberbaumet, eds., The Jewish Political Tradition, Volume One: Authority (New Haven: Yale U. Press, 2000 (From the book jacket: "This book launches a landmark four-volume collaborative work exploring the political thought of the Jewish people from biblical times to the present." As of this posting, only volumes one and two have been published.).

Walzer, Michael, Menachem Lorberbaum, Noam J. Zohar & Ari Ackerman, eds., The Jewish Political Tradition, Volume Two: Membership (New Haven: Yale U. Press, 2003) (This is an interesting book. Might I suggest that, in reading the following passages, you first identify the 'political community' you think you most belong, then (if appropriate) substitute that community for 'Jewish community.' This will allow you to better appreciate the distinctions and questions raised in what follows. "In every political community ... membership is a contested issue. And so it is for the Jews.... In the most lateral sense, a community is defined by its boundaries: Who is in, who is out? Who is a Jew, who is not? But two other definitional issues also hang on the meaning of membership." "The first has to do with equality and inequality within the community: Are there different degrees of membership, different kinds of members? We can usefully imagine the members arranged vertically, in a (fixed or fluid) hierarchy, determined in the Jewish case by lineage, religious status, education, and gender. What difference do these differences make? But there is another, harder question about equality: How do all the Jews, whatever their ranks and orders, different from other nations? According to the biblical story, all human beings were created in God's image, but some of them were subsequently elected to be God's peculiar people, his 'treasure' among the nations. What difference does this make?" "The second issues requires us to think about relations with 'others'--about fear, hostility, and respect, the conflicting emotions and attitudes that determine the possibility of pluralism. What sorts of coexistence are possible in everyday life? How easily are the community's boundaries crossed? How wide are the margins along the border? How close are the people on the other side? Now we might imagine the members of the Jewish community arranged horizontally, along a line stretching from the center to the margin, then tot he border and across it. Converts move inward along this line...; heretics and apostates move the other way.... But it isn't clear, in the Jewish case, exactly where the different groups come to rest. In fact, marginal positions on the horizontal line may also be low positions on the vertical (hierarchical) line, but it is useful to think of the two separately: people are up and down in Jewish society, and also in and out." Id. at 3. Of course, you can try--and I do everyday--to minimize my connection(s) to any political community period. People join communities in search of an identity. What happens is the reverse; they lose their identity, they lose their individuality. Membership--by force or choice--is compromise. Still, there is much food for thought in this collection. In light of the U.S. Supreme Court most recent 'anti-integration' ruling, one might be sadly amused by the following from Professor Nomi Maya Stolzenberg: "With its borrowings from American antidiscrimination law, there is something uncanny about Kaadan v. Israel Lands Administration. Justice Barak's opinion is, among other things, a mediation on the debate about 'separate but equal' that developed in the United States after the abolition of slavery; and insofar as it rejects separation, it evokes a vision of equality that belongs to a time and place far removed from contemporary Israel. Indeed, the vision is doubly remote: Not only is the political situation in Israel quite different from the situation in which American practices of racial segregation and desegregation arose, but even in the United states, the landmark civil rights cases handed down by the U.S. Supreme Court, including Brown v. Board of Education, seem to belong to a bygone era." Id. at 553. Sadly, the spirit of Board v. Board of Education is of a bygone era.).

Ward, Geoffrey C., Unforgivable Blackness: The Rise and Fall of Jack Johnson (New York: Knopf, 2004).

Werbel. Amy, Thomas Eakins: Art, Medicine, and Sexuality in Nineteenth-Century Philadelphia (New Haven & London: Yale U. Press, 2007).

Widmer, Ted., ed., American Speeches: Part One: Political Oratory From the Revolution to the Civl War (New York: Library of America, 2006).

Widmer, Ted, ed., American Speeches: Part Two Political Oratory From Abraham Lincoln to Bill Clinton (New York: Library of America, 2006).

Wiggins, Marianne, The Shadow Cather (New York: Simon & Schuster, 2007) (Fiction. "Think of the TV shows that have taken over the ratings since the terrorist attacks of September 11, 2001--shows that put the pieces of the puzzle back together, shows that solve the crime through diligent and thorough science, shows that find the missing, shows that revolve around an active, wise and super-vigilant government agent, shows that feature ghosts and the crime-solvers who cooperate with them to make the world a safer place. Sometimes we get the heroes we deserve but we always get the television shows our fears dictate." Id. at 187-188.).

Williams, Bernard, In the Beginning Was the Deed: Realism and Moralism in Political Argument selected, edited, and with an introduction by Geoffrey Hawthorn (Princeton & Oxford: Princeton U. Press, 2005).

Williams, Bernard, Philosophy as a Humanistic Discipline selected, edited, and with an introduction by A. W. Moore (Princeton & Oxford: Princeton U. Press, 2006).

Williams, Bernard, The Sense of the Past: Essays in the History of Philosophy edited and with an introduction by Myles Burnyeat (Princeton & Oxford: Princeton U. Press, 2006).

Williams, Lou Falkner, The Great South Carolina Ku Klux Klan Trials 1871-1872 (Studies in the Legal History of the South) (Athens & London: U. of Georgia Press, 1996).

Wilson, Ben, The Making of Victorian Values: Decency and Dissent in Britain: 1789-1837 (New York: The Penguin Press, 2007) ( A thoughtful critique (defense?) of the pre-Victorians, and lessons for late 20th-, early 21st-century American society. "Mankind cannot live long in a state that it regards as fake or hypocritical. It will always be self-defeating: the precursors of the Victorians, who saw the emergence of their morality in the period that this book covers, knew that. Their principles were rigorous and certain; but they were also forgiving of personal mistakes and character flaws (indulgent, the Victorians might have said), tolerant of aberrations (decadent, in Victorian terms), realistic when it came to alcohol and overindulgent (licentious, in the nineteenth century), permissive of boisterous entertainments (vulgar for the next generation) and discretionary in their use of coercive laws (lenient and dangerously anarchical for Victorians). It was far from perfect: it was a cruel and unfair society. But there is much that is commendable in their values and virtues, even though they might appear less rigorouss and assertive than those of their children and grandchildren. Passions were something to be celebrated rather than suppressed; bawdiness was permitted, without its degenerating into anything like Victorian pornography; hypocrisy was dreaded, while candor in judging others was a virtue." Id. at xiv.).

Zamoyski, Adam, Moscow 1812: Napoleon’s Fatal March (New York: HarperCollins, 2004).

Zamoyski, Adam, Rites of Peace: The Fall of Napoleon and the Congress of Vienna (New York: HarperCollins, 2007) ("The reconstruction of Europe at the Congress of Vienna is probably the most seminal episode in modern history. Not only did the congress redraw the map entirely. It determined which nations were to have political existence over the next hundred years and which were not. It imposed an ideology on the whole Continent, derived from the interests of four great powers. It attempted to set in stone the agreement between those powers, with the result that their expansionist urges were deflected into Africa and southern Asia. It entirely transformed the conduct of international affairs. Its consequences, direct and indirect, include all that has taken place in Europe since, including aggressive nationalism, Bolshevism, fascism, the two world wars and, ultimately, the creation of the European Union." Id. at xiii.).

Also, let me recommend the following films, all of which are available on DVD.
Otto Preminger, Advise and Consent
Arthur Hiller, The Americanization of Emily
John Sturges, Bad Day at Black Rock
Richard Brooks, Blackboard Jungle
Elia Kazan, A Face in the Crowd
Fritz Lang, Fury
Mervyn LeRoy, I Am a Fugitive from a Chain Gang
These are contained in a collection Controversial Classics: 7 Groundbreaking Movies That Made a Difference! .

"Self-righteousness [ ] spawns arrogance, selfishness, indifference.... Don’t let the weight of things numb you. Read, think, disagree with everything, if you like – but force your mind outward." Anton Myrer, Once an Eagle (Carlise, Pa.: Army War College Press, 1977), at 194.

June 30, 2007

MEMORANDUM

TO: BOOKS READERS (ESPECIALLY FIRST-YEAR LAW STUDENTS)
FR: Prof. LONG
DA: April 16, 2007
RE: SUGGESTED SUMMER 2007 READING

The summer–that is, from graduation day to a week before fall classes begin–consists of thirteen weeks or ninety-one days. Below is a list of eighteen books (one book every five days) you might find worthwhile summer reading. Most of these books are available in paperback.
Since the concept "good lawyer" is a highly contested concept, I refrain from suggesting that reading and studying these books will make one a good or better lawyer, or even a good or better legal thinker. Then again, I do not see how reading and studying these books will hurt. I think reading these books will help you gain a broader perspective and, thereby, supplement the very task oriented approach you will encounter in your summer employment.

Amar, Akhil Reed, America’s Constitution: A Biography (New York: Random House, 2005).

Bix, Brian, Jurisprudence: Theory and Context, 2nd ed. (London: Sweet Maxwell, 1999).

Breyer, Stephen, Breaking the Vicious Circle: Towards Effective Risk Regulation (Cambridge:
Harvard U. Press, 1993).

Cass, Ronald A., The Rule of Law in America (Baltimore: Johns Hopkins U. Press, 2001).

Coase, R. H., The Firm, The Market, and The Law (Chicago: U. of Chicago Press, 1988).

Epstein ,Richard A., Takings: Private Property and the Power of Eminent Domain (Cambridge: Harvard U. Press, 1985).

Hardin, Russell, One For All: The Logic of Group Conflict (Princeton: Princeton U. Press, 1995).

Hart, H. L. A., The Concept of Law (Oxford: Oxford U. Press, 1961).

Howard, Philip K., The Lost Art of Drawing the Line: How Fairness Went Too Far (New York: Random House, 2001).

Kaplow, Louis & Steven Shavell, Fairness versus Welfare (Cambridge: Harvard U. Press, 2002).

Katz, Leo, Ill-Gotten Gains: Evasion, Blackmail, Fraud, and Kindred Puzzles of the Law (Chicago: U. of Chicago, 1996).

Kennedy, David & William W. Fisher, III, eds., The Canon of American Legal Thought (Princeton: Princeton U. Press, 2006).

Kronman, Anthony T., The Lost Lawyer: Failing Ideals of the Legal Profession (Cambridge: Harvard U. Press, 1993).

Lessig, Lawrence, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity (New York: Penguin Press, 2004).

Levi, Edward H., An Introduction to Legal Reasoning (Chicago: U. of Chicago Press, 1949).

Packer, Herbert L., The Limits of the Criminal Sanction (Stanford: Stanford U. Press, 1968).

Posner, Eric A., Law and Social Norms (Cambridge: Harvard U. Press, 2000).

White, James Boyd, Justice as Translation: An Essay in Cultural and Legal Criticism (Chicago: U. of Chicago Press, 1990).

June 25, 2007

June 12, 2007

BOOKS TO READ WHILE TEACHING SUMMER SCHOOL

cos-mop-o-lite, n, a person who is cosmopolitan in his ideas, life, etc.; citizen of the world.cos-mo-pol-i-tan, adj. 1. belonging to all the world; not limited to just one part of the political, social, commercial, or intellectual world. 2. free from local, provincial, or national ideas, prejudice, or attachments. 3. of or characteristic of a cosmopolite. -n. 4. a person who is free from local, provincial, or national prejudices, etc.; citizen of the world; cosmopolite.

Burleigh, Michael, Sacred Causes: The Clash of Religion and Politics, from the Great War to the War on Terror (New York: HarperCollins, 2007) ("This is not a history of Christianity ..., nor a history of modern times.... Rather, the book operates in the middle ground between them, where culture, ideas, politics and religious faith meet in a space for which I cannot find a satisfactory label. Perhaps one should not try. [] The general ambition has been to write a coherent history of modern Europe primarily organized around issues of mind and spirit rather than the merely material, although in no sense do I discount the material as an important factor in history...." Id. at xi. "There are a few grounds for hope in this present 'age of anxiety'. [] There are encouraging signs that the Churches -- and in particular the Catholic Church of Benedict XVI -- are ready to make certain non-negotiable positions clear rather than to mouth the platitudes of a discredited multiculturalism that only exists in the Left university and within local government, neither of them at the cutting edge of European thinking." Id. at xv. This is an important book, at least for those for whom ideas matter. One may, after reading it, sense that American thinking, for the most part, is a few steps behind European thinking and still giving too much deference to it own version "of a discredited multiculturalism.").

Crespino, Joseph, In Search of Another Country: Mississippi and the Conservative Counterrevolution (Princeton & Oxford: Princeton U. Press, 2007) (This is a very worthwhile, though disturbing, read. "This book shows how, despite segregationists' popular pledges that they would never submit to racial integration, white leaders in the state initiated a subtle and strategic accommodation to the demands of civil rights activists and the federal government, one that helped preserve the priorities of white elites and that put white Mississippians in a position to contribute to a broad conservative countermovement against the liberal triumphs of the 1960s. Whites in Mississippi rearticulated their resentment of liberal social policies that allowed for black advancement in ways that would come to resonate with white Americans far outside of the Deep South. They conceived of their struggle against civil rights activities and the federal officials not merely as a regional fight to preserve white supremacy but as a national battle to preserve fundamental American freedoms. In doing so, they made a common cause with a variety of conservative constituencies: with cold warriors concerned about an expansive federal state; with fundamentalist and evangelical Christians worried about liberalism 'infecting' Protestant churches; and with parents opposed to federal school desegregation efforts, who wanted to determine where and with whom their children went to school." "The pages that follow, then, recover how many white Mississippians saw themselves: not as American pariahs but as central participants in a conservative counterrevolution that reshaped American politics in the closing decades of the twentieth century." Id. at 4. In reading/studying this book, as a Midwesterner banished to the Northeast (specially New England) I must laugh when I think of all the liberal activists I know who think they are on the winning side of the cultural wars. A perception that can hold because they do not travel to the South and Middle West America. Also see the Dittmer title below. A few law students might appreciate this sentence from the author's 'Acknowledgments': "Carl Smith saved me from law school and opened up new worlds...." Id. at xv.).

Dahl, Robert A., A Preface to Democratic Theory, Expanded Edition (Chicago & London: U. of Chicago Press, 2006).

Dienstag, Joshua Foa, Pessimism: Philosophy, Ethics, Spirit (Princeton & Oxford: Princeton U. Press, 2007) (I love this book. It is a must read for those few with a true inclination toward political philosophy. "Why is it that pessimism, once a respectable if not popular philosophy, has become so despised in our culture that the word 'pessimist" can be used today as a term of political or intellectual abuse? Look in any American newspaper for a few days and one will immediate see that this is true. It is enough to label an idea (or a person) 'pessimistic' in order to be allowed to dismiss it (or him) without further discussion as irrational, emotional, indefensible or, worst of all, unpatriotic." "Why should this be? After all, an expectation that things will go badly is not, on the surface, any more or less rational than the expectation that things will go well. An extended examination of the question could well yield a judgment in favor of one or the other--but the label is used precisely to foreclose such an inquiry. Pessimism is dismissed before serious debate begins, not during or afterward. One might venture that, somehow, the idea of pessimism is so threatening that people decline to consider it seriously because they are afraid of the effects such a consideration might produce." Id. at ix. "Pessimists do not deny the existence of 'progress' in certain areas--they do not deny that technologies have improved or that the powers of science have increased. Instead, they ask whether these improvements are insepararably related to a greater set of costs that often go unperceived. Or they ask whether these changes have really resulted in a fundamental melioration of the human condition. This often results ... in a conception of history as following an ironic path, one that appears, on the surface, to be getting better when in fact it is getting worse (or, on the whole, no better). Again, the reasoning that supports this view varies among the pessimists, but not so greatly as to obscure the common sentiment." Id. at 25. "A pessimist believes: a) that there is no formula for producing freedom and happiness in this world[;] b) that there is no other world where there is such a formula[;] c) that time is linear." Id. at 264.).

Dittmer, John, Local People: The Struggle for Civil Rights in Mississippi (Urbana & Chicago: U. of Illinois Press, 1994) (This is an important piece of analytical history concerning a critical stage in civil rights movement (a part of human rights movement) in America. I wonder if the typical law students are even remotely familiar with this brutal and violent history. Does the typical college student even take more than one or two survey courses in American history?).

Duberman, Martin B., Charles Frances Adams 1807-1886 (Cambridge: Houghton Mifflin, 1961) ("Adams represented, in short, what may be called metaphysical pessimism--a conviction that the problem of evil was incapable of solution. He envisioned, for example, 'no cessation of war, still less much perfectibility while man is constituted as he has been known to be since the world began.' There was no panaceas, no formulas for abolishing the eternal tale of woe. Awareness of the human potential for evil led him to cling to firm standards as the only alternative to chaos. He did not share the fashionable confidence in the excellence of human nature, nor in man's ability to live intelligently without the restraining influence of 'system' and ideology. Adams felt that man's true accomplishment lay in his self-imposed constraint, in his rational working out of rules for personal and social action. Strip away what the reformers lightly called the 'hypocrisy' of convention or the 'sham' of religion and law, and you would find not the glories of the free, untrammeled spirit, but the bestiality of irresponsible passion. 'For myself,' said Adams, 'I am content to go on in the path marked by my fathers before me. I am content to believe in the old rules of morality which have been recognized as sound by wiser men than I for thousands of years back.'" Id. at 69.).

Ghosh, Amitav, The Shadow Lines (Delhi: Ravi Dayal, 1988) (fiction).

Goldberg, Jeffrey, Prisoners: A Muslim and a Jew Across the Middle East Divide (New York: Knopf, 2006).

Halpern, Richard, Norman Rockwell: The Underside of Innocence (Chicago & London: U. of Chicago Press, 2006).

Hayashi, Brian Masaru, Democratizing the Enemy: The Japanese American Internment (Princeton & Oxford: Princeton U. Press, 2004).

Kennedy, David, The Dark Side of Virtue: Reassessing International Humanitarianism (Princeton & Oxford: Princeton U. Press, 2004) (This is a worthwhile read for those interested in international human rights, etc. "The impulse to do good, to remake the world more fairly, to strengthen the hand of tolerance and understanding takes shape for each of us in the available cultural and professional vocabulary. Humanitarianism begins as an impulse--and becomes known as a practice...." "This book explores the enchantments and disenchantments which accompany the expression on international humanitarian sentiments." Id. at xiv. "One we see international humanitarians as participants in global governance--as rulers--it seems irresponsible not to be as attentive as possible to the costs, as well as the benefits, of our work" Id. at xviii. "A pragmatism of intentions encourages a clear-eyed focus on the purposes of out work and a relentless effort to avoid being blown off course as we seek to make our humanitarian impulse real. The focus is on the gap between out good impulses and their bad expression. A central idea is betrayal--of an original impulse, purpose, or objective--by the work we do to fulfill it. Our ends can be foiled by the means we use to pursue them. Our ideals can be compromised by the word we use to express them, just as our deed can in turn betray our words." Id. at xx. Note, in the several quaotations I have given Kennedy uses the royal "we." His book is aimed at the faithful, the already convinced, the members of the club. Those who, like myself, are not members of the particular club might read this text as a reminder that 'the road to hell is paved with good intentions.' ).

Levine, Donald N., Powers of the Mind: The Reinvention of Liberal Learning in America (Chicago & London: U. of Chicago Press, 2006).

Maalouf, Amin, In the Name of Identity: Violence and the Need to Belong translated from the French by Barbara Bray (New York: Arcade, 2000) (Original French publication five years before 9/11, and English translation published a year before 9/11, yet very pertinent to both our post-9/11 international and domestic mind-set. "But I will close this short parenthesis and return to my original theme: that too much emphasis is often laid on the influence of religion on people, and not enough on the influence of peoples and their history o religion. The influence is reciprocal, I know. Society shapes religion, and religion in its turn shapes society. But I have observed that because a certain mental habit that we have got into we tend to see only one side of this dialectic, and the omission greatly distorts our perception." "Some people are always ready to blame Islam for all the dramatic episodes, past or present, that have occurred in Muslim societies, Not only is this altitude unfair; it is also makes world events completely unintelligible." Id. at 67. "The twentieth century will have taught us that no doctrine in itself is necessarily a liberating force: all of them may be perverted or take a wrong turning; all have blood on their hands -- communism, liberalism, nationalism, each of the great religions, and even secularism. Nobody has a monopoly on fanaticism; nobody has a monopoly on humane values." Id. at 51. "The theme that runs like a thread through the tapestry of this book might be formulated as follows: if the men of all countries, of all conditions and faith can so easily be transformed into butchers, if fanatics of all kinds manage so easily to pass themselves off as defenders of identity, it's because the 'tribal' concepts of identity still prevalent all over the world facilitates such a s distortion. It's a concept inherited from the conflicts of the past, and many of us would reject it if we examined it more closely. But we cling to it through habit, from lack of imagination or resignation, thus inadvertently contributing to the tragedies by which, tomorrow, we shall be genuinely shocked." Id. at 29.).

McCraw, Thomas, K., Prophet of Innovation: Joseph Schumpeter and Creative Destruction (Cambridge: Belknap/Harvard U. Press, 2007) (This is a very good combination history of economic thought and biography of Schumpeter; it should prompt one to read (or re-read) larger portions of Schumpeter's body of work. "The case for capitalism, says Schumpeter, 'must rest on long-run considerations.' In the short run, it is impossible for people generally, and even intellectuals, to ignore what seem to be unreasonable 'profits and inefficiencies.' They therefore have difficulty in seeing long-range trends in which capitalism is benefiting society as a whole. Uniquely among economic systems, therefore, capitalism 'creates, educates and subsidizes a vested interest in social unrest.' With its bountiful production, it underwrites the education of a class of hostile intellectuals who have no 'direct responsibility for practical affairs' and little experience in managing anything." Id. at 358. "Schumpeter was never narrow, and always more than an economist. Three of his books--The Theory of Economic Development, Capitalism, Socialism and Democracy, and History of Economic Analysis--are still available in may languages, in inexpensive paperback editions. All, especially Capitalism, Socialism and Democracy are books for the ages." Id. at 505-506.).

McCraw, Thomas K., Prophets of Regulation: Charles Francis Adams, Louis D. Brandeis, James M. Landes, Alfred E. Kahn (Cambridge: Belknap/Harvard U. Press, 1984) (This is an interesting piece on the history of regulation. A history of interest to students of administrative law and regulated industries, which, in this regulatory-state in which we exist, means all of us should find it of interest. "When I began to write this book, I was intrigued by the mysteries that seemed to surround the history of government regulation in America. Why, I wondered, had regulation so often failed to serve the 'public interest,' as it had been intended to do? Why, if the commissions had proved so ineffective, did they remain active as apparently permanent parts of the government? Why, if agencies were so often 'captured' by interests they were supposed to be regulating, did not other branches of government step in and take away their legislated powers?" "On its surface, this book is about four important prophets of regulation, whose work spans more than a century of experience...." In treating these men, I am interested in what they thought about regulation, what they accomplished, and how things turned our for them and for the agencies they influenced." Id at viii-ix.).

Pitts, Jennifer, A Turn to Empire: The Rise of Imperial Liberalism in Britain and France (Princeton & Oxford: Princeton U. Press, 2005).

Sandel, Michael J., The Case Against Perfection: Ethics in the Age of Genetic Engineering (Cambridge: Belknap/ Harvard U. Press, 2007) (There is much worthwhile in this short book/essay, arguing against human genetic engineering.).

Silber, William L., When Washington Shut Down Wall Street: The Great Financial Crisis of 1914 and the Origins of America’s Monetary Supremacy (Princeton & Oxford: Princeton U. Press, 2007) (A nice treatment of an episode in American central banking history. Note, the central figure, Treasury secretary William G. McAdoo, trained as a lawyer. Just a reminder that the well-hone legal skills are often transferable.).

Sontag, Susan, At the Same Time: Essays & Speeches edited by Paolo Dilonardo and Anne Jump (New York: Farrar Straus & Giroux, 2007) (From ‘A Few Weeks After’: “What is worth noting is how docile the [American] public is about almost al matters of foreign policy. This passivity may be an inevitable consequence of the triumph of liberal capitalism and the consumer society. For some time there has ceased to be any significant difference between the Democrats and the Republicans; they are best thought if as two branches of the same party…. The depoliticization of most of the American intelligentsia merely reflects the conformism and convergence—the ‘me tooism’–of political life in general.” Id. at 116.). From ‘Literature is Freedom’: “To have access to literature, world literature, was to escape the prison of national vanity, of philistinism, of compulsory provincialism, of insane schooling, of imperfect destinies and bad luck. Literature was the passport to enter a larger life; that is, the zone of freedom.” “Literature was freedom. Especially in a time in which the values of reading and inwardness are so strenuously challenged, literature is freedom.” Id. at 209.

Stone, Robert, Prime Green: Remembering the Sixties (New York: Ecco, 2007) (This is very well done, neither placing the sixties on a pedestal nor viewing it as a total hell. There is a short passage on Stone's visit to Vietnam during the 1971. It struck me as one point of contrast between the American War in Vietnam and the American War in Iraq: the fact that there were many draftee in serving in Vietnam, that is, individuals who did not choose to be there, while--in this age of the all-volunteer military--everyone serving in Iraq, even the national guards who have been deployed to Iraq--chose to be in the military and, as a consequence, chose to possibility of being deployed in a shooting war. ""How many times did journalists in the line hear the bitterness of drafted soldiers, risking it all for their buddies, for their personal honor, even--God help us--for their country, as they had been told and believed? How many times did one hear it: You don't have to be here, you're here to make money off it, you could be anywhere you wanted--with your high school and your college--anywhere--but you're here, you sick son of a bitch, here, because you eat this shit up, don't you, and I hope you die, you rotten-hearted motherfucker, I hope you die. Many times." Id at 215. I wonder whether similar distain is directed now from military personnel order to serve in Iraq toward those private contract workers who don't have to be there, but who are there to make money off the war. On a tangent note: Will someone write ever write the definitive book of what truly happened in, or changed about, America in the1960s? What happened is that America[ns] crossed the line placing consumerism (and consumer politics) ahead of serious intellectual discourse (and substantive politics). We’re all just consumers now.).

Torday, Paul, Salmon Fishing in The Yemen (Orlando: Harcourt, 2007) (fiction).

"Self-righteousness [ ] spawns arrogance, selfishness, indifference.... Don’t let the weight of things numb you. Read, think, disagree with everything, if you like – but force your mind outward." Anton Myrer, Once an Eagle (Carlise, Pa.: Army War College Press, 1977), at 194.