NO REAL MORALITY IN PATERNALISM

Gerald L. Early, A Level Playing Field: African American Athletes and the Republic of Sports (Cambridge, Massachusetts, & London, England, 2011) ("[I]n truth, no real morality can exist in paternalism, for the system only replicates and reflects how well those who control it mask their ability to do so with favors, concessions, and pet treatment of star players, how well they mask their power through, paradoxically, the whimsical exercise of it as an expression of benevolence or indulgence. . . ." Id. at 107-108.).

THE RACIAL BRIDE AND MARRIAGE AS A FORM OF NARCISSISM

Ralph Richard Banks, Is Marriage for White People: How the African American Marriage Decline Affects Everyone (New York: Dutton, 2011) ("Over the past half century, African Americans have become the most unmarried people in our nation. By far. We are the least likely to marry and the most likely to divorce; we maintain fewer committed and enduring relationships than any other group. Not since slavery have black men and women been unpartnered as we are now." Id. at 2. "The paradox of marriage in the United States, then, is that its cultural prominence persists even as it has shed many of the social functions that traditionally prompted people to marry, marriage is more a relationship and less an institution these days. As the meaning of marriage has shifted, so, too, have people's expectations of it. Perhaps more than ever, marriage is understood now as a means of personal fulfillment and individual growth. The primary purpose of marriage, in the view of most Americans, is the establishment of a mutually fulfilling relationship, one in which understanding and emotional intimacy prevail. Marriage now is less a means of building a life and more a means of enjoying one's life. More finish line than starting gate, marriage often comes after other milestones of adulthood have been met: living together, buying a car and hose, having children. People take pride in marriage as an achievement. To enjoy that achievement requires a certain degree o financial stability. According to one nationally representative study conducted in 2001, more that four out of five Americans agreed that ;it is extremely important to be economically set before you get married.' " The new view of marriage is reflected in the findings of a 2007 survey by the Pew Research Center. Throughout history and across different societies children have been pivotal to the prevailing conception of marriage, Yet when respondents to the Pew survey were provided with a list of items and asked to identify which were 'very important' to a successful marriage, they ranked children near the bottom of the list. Practically every other consideration--shared religious beliefs, shared interests, a happy sexual relationship--ranked as more important than children. The survey respondents were even more likely to judge 'sharing household chores' as more important to a successful marriage than children. The American surveyed said by a margin of nearly three to one that 'the main purpose of marriage is . . . the 'mutual happiness and fulfillment' of the couple, rather than the 'bearing and raising of children'. ' " "What better way to find happiness and fulfillment than by marrying one's soul mate?" Id. at 25-26 (italic added).).

"THE RACIAL BRIBE"

Lani Guinier & Gerald Torres The Miner's Canary: Enlisting Race, Resisting Power, Transforming Democracy (Cambridge, Massachusetts, & London, England: Harvard U.Press, 2002) ("The toughest border patrol in this country may be the one that policies the racial boundaries between black and white. And no group has played a more important role, historically, in the way whites have policed these borders than the group known today as Hispanics or Latinoes. Whereas dark-skinned Hispanics . . . have been pushed into the black category, lighter skinned (or richer) Hispanics . . . have been offered a chance to become white, so long as they maintain their social distance from blackness. This off is part of what we call the racial bribe." "The racial bribe is a strategy that invites specific racial or ethnics groups to advance within the existing black-white racial hierarchy by becoming 'white.' The strategy expands the range of physical characteristics that can fall within the definition of 'white,' in order to pursue four goals: (1) to defuse the previously marginalized group's oppositional agenda, (2) to offer incentives that discourage the group from affiliating with black people, (3) to secure high status for individual group members within existing hierarchies, and (4) to make the social position of 'whiteness' appear more racially or ethnically diverse." Id. at 224-225.).

ON PUBLIC INTELLECTUALS: SEE THE NYT BOOK REVIEW, 10/16/2011

• 

• Up Front - Joseph Epstein

  1 day ago ... Mr. Epstein, who taught at Northwestern and edited the American Scholar from 1975 to 1997, discusses the changing role of the public ...October 16, 2011 - By THE EDITORS - Books / Sunday Book Review

BOOK OF THE WEEK: WEEK FORTY-TWO, 2011

Randall Kennedy, The Persistence of the Color Line: Racial Politics and the Obama Presidency (New York: Pantheon Books, 2011) (See Dwight Garner, "One Nation, Still Divisible By Race," NYT, Friday, 8/12/11/).

YES, SLAVERY IS 'EFFICIENT' FOR SLAVEHOLDERS WHEN THE HARMS TO SLAVES ARE EXTERNALIZED

Jenny Bourne Wahl, The Bondsman's Burden: An Economic Analysis of the Common Law of Southern Slavery (Cambridge: Cambridge U. Press, 1998) ("In what follows, I first discuss how courts assigned liability and damages in conflicts between slaveowners and others. I then turn to disputes in which slaveowners were accused of treating their own slaves too harshly--or too indulgently. I conclude that slave law tended to be efficient . . . " Id. at 2. "Let me stress again that the concept of 'efficiency' used in this book excludes the effects of legal rules on those with no legal standing--namely, slaves. . . . By omitting costs to slaves from consideration, one can comprehend why slavery endured: It profited those whom it served. In the same fashion, one can understand why the common law helped perpetuate slavery: It efficiently accommodated the needs of a slave-holding society. Profitability and efficiency mean nothing good in this context. Even in these days of moral relativism, few would argue that slavery and the structures that supported it were anything but evil. To call slave law efficient is to condemn it. Had judges been less adept at tailoring the common law to protect this peculiar property, in fact, slaves would have been less valuable and slavery less profitable." Id. at 176.) .

RACIAL MARGINALITY

Mohamed Adhikari, Not White Enough, Not Black Enough: Racial Identity in the South African Coloured Community (Athens, OH: Ohio U. Press, 2005) ("My initial intent was to provide a history of Coloured identity through the twentieth century and to show how it changed and developed during this period. The original assumption was that after its late nineteenth-century genesis, Coloured identity continually evolved through the twentieth century, with new departures such as the rise of the radical movement in the 1930s, the emergence of Black Consciousness thinking in the 1970s, and Coloured rejectionism in the 1980s representing periods of accelerated transformation. Faced with the empirical evidence and the actual task of explaining the evolution of Coloured identity, I was instead struck by how stable that identity had been throughout the era of white domination and how superficial the influences of earlier radical politics, Black Consciousness, and the rejectionionist movement were. . . . With the evidence failing to confirm my initial hypotheses . . . a reconceptualization of Coloured identity and its history was clearly necessary. The result is a counterintuitive argument that through the era of white supremacy, Coloured identity is better understood as having been stable rather than as continually changing." Id. at xiii.).

RACIAL IDENTITY

Charles W. Chesnutt, Stories, Novels, and Essays: The Conjure Woman; The Wife of His Youth and Other Stories of the Color Line; The Home Behind the Cedars; The Marrow of Tradition; Uncollected Stories; Selected Essays, edited by Werner Sollors (New York: Library of America, 2002) (From "The Courts and the Negro": "I presume that hanging might be pleasant if a man could only convince himself that it would not be painful, nor disgraceful, nor terminate his earthly career. It is perhaps true that some Negroes--I suspect very few people of mixed blood--have seemed to accept this reasoning. But I have never been able to see how a self-respecting colored man can approve of any discriminating legislation. To do so is to condone his own degradation, and accept an inferior citizenship. If discrimination must of necessity be submitted to, it should meet no better reception than silence. Protest were better still." Id. at 895, 902. From the book jacket: "Rejecting his era's genteel hypocrisy about miscegenation, lynching, and 'passing,' Charles W. Chestnutt broke new ground in American literature with his innovative exploration of racial identity and his use of African-American speech and folklore. Chestnutt laid bare the deep contradictions at the heart o American attitudes towards race and history, and in the process created the modern African-American novel. . . .").

THE DECLINE OF REAL EDUCATIONAL INSTITUTIONS IN AMERICA

Benjamin Ginsberg, The Fall of the Faculty: The Rise of the All-Administrative University and Why It Matters (Oxford & New York: Oxford U. Press, 2011) ([W]hether or not they hold MBAs, many deanlets' managerial savvy consists mainly of having the capacity to spout last year's management buzz words during meetings, retreats, and planning exercises. I often ask for clarification when I hear a deanlet using such acronyms as SWOT, ECM, TQM, or MBO, the term 'benchmarking,' of the ubiquitous 'best practices.' . . . And, why not? In the all-administrative university it is entirely appropriate that mastery of managerial psychobabble should pass for academic vision." Id. at 65-66. From the book jacket: “Until very recently, American universities were led mainly by their faculties, which viewed intellectual production and pedagogy as the core missions of higher education. Today, as Benjamin Ginsberg warns in this eye-opening, controversial book, ‘deanlets’—administrators and staffers often without serious academic backgrounds or experience—are setting the educational agenda.” “The Fall of the Faculty examines the fallout or rampant administrative blight that now plagues the nation’s universities. In the past decade, universities have added layers of administrators and staffers to their payrolls every year even while laying off full-time faculty in increasing numbers—ostensibly because of budget cuts. Many of the newly minted—and non-academic—administrators are career managers who downplay the importance of teaching and research, as evidenced by their tireless advocacy for a banal ‘life skills’ curriculum. Consequently, students are denied a more enriching educational experience—one defined by intellectual rigor. . . .”. When education becomes merely a business, education itself loses and becomes corrupt.).

THE COLUMBIAN EXCHANGE

Charles C. Mann, 1493: Uncovering the New World Columbus Created (New York: Knopf, 2011) ("Before [Alfred W. Crosby, Ecological Imperialism] (and some of his colleagues) looked into the matter, historians tended to explain Europe's spread across the globe almost entirely in terms of European superiority, social and scientific. Crosby proposed another explanation in Ecological Imperialism. Europe frequently had better-trained troops and more-advanced weaponry than its adversaries, he agreed, but in the long run its critical advantage was biological, not technological. The ships that sailed across the Atlantic carried not only human beings, but plants and animals--sometimes intentionally, sometimes accidentally. After Columbus, ecosystems that had been separate for eons suddenly met and mixed in a process Crosby called, as he had titled his previous book, the Columbian Exchange. The exchange took corn (maize) to Africa and sweet potatoes to East Asia, horses and apples [] to the Americas, and rhubarb and eucalyptus to Europe--and also swapped about a host of less-familiar organisms like insects, grasses, bacteria, and viruses. The Columbian Exchange was neither fully controlled nor understood by its participants, but it allowed Europeans to transform much of the America, Asia, and, to a lesser extent, Africa into ecological versions of Europe, landscapes the foreigners could use more comfortably than could their original inhabitants. This ecological imperialism, Crosby argued, provided the British, French, Dutch Portuguese, and Spanish with the consistent edge needed to win their empires." Id. at xiv-xv. "[R]esearchers in [environmental history and Atlantic studies] have been assembling what amounts to a new picture of the origins of our world-spanning interconnected civilization, the way of life evoked by the term 'globalization.' One way to summarize their efforts might be to say that to the history of kings and queens most of us learned as students has been added a recognition of the remarkable role of exchange, both ecological and economic. Another way might be to say that there is growing recognition that Columbus's voyage did not mark the discovery of a New World, but its creation. How that world was created is the subject of this book. Id. at xv."What happened after Columbus . . . was nothing less than the forming of a single world from the collision of two old worlds--three, if one counts Africa as separate from Eurasia. Born in the sixteenth century from European desires to join the thriving Asia trade sphere, the economic system for exchange ended up transforming the globe into a single ecological system by the nineteenth century--almost instantly, in biological terms. The creation of this ecological system helped Europe seize, for several vital centuries, the political initiative, which in turn shaped the contours of today's world-spanning economic system in its interlaced, omnipresent barely comprehended splendor." Id. at xv-xvi. "For millennia, almost all Europeans were found in Europe, few Africans existed outside of Africa, and Asians lived, nearly without exception, in Asia alone. No one in the Eastern Hemisphere in 1492, so far as is known, had ever seen an American native. . . . Colon's voyages inaugurated an unprecedented reshuffling of Homo sapiens: the human wing of the Columbian Exchange. People shot around the world like dice flung in a gaming table. . . . Id. at 285. "The movement was dominated by the African slave trade. . . . Its most recent iteration, released in 2009, estimates that between 1500 and 1840, the heyday of the slave trade, 11.7 million captive Africans left for the America--a massive transfer of human flesh unlike anything before it. In that period, perhaps 3.4 million Europeans emigrated. Roughly speaking, for every European who came to the Americas, three Africans made the trip." "The implications of these figures are as staggering as their size. Textbooks commonly present American history in terms of Europeans moving into a lightly settled hemisphere. In fact, the hemisphere was full of Indians--tens of millions of them. And most of the movement into the Americas was by Africans, who soon became the majority population in almost every place that wasn't controlled by Indians. Demographically speaking, Eltis has written, 'America was an extension of Africa rather than Europe until late in the nineteenth century.' " Id. at 286-287.).

BOOK OF THE WEEK: WEEK FORTY-ONE, 2011

Ilan Pappe, The Forgotten Palestinians: A History of the Palestinians in Israel (New Haven & London: Yale U. Press, 2011) ("In response to the involvement of two young Jewish women from Petach Tivka, a large city near Tel Aviv, in an alleged attack by Palestinian youth on a Jewish citizen in Tel Aviv, the municipality of Petach Tivka announced it was establishing a team of youth counselors and psychologists whose job it was to identify young Jewish women who were dating Arab men and 'rescue' them. But his brand of policy was usually not triggered by the alleged involvement of young women with criminal activity by Arab youth. In Pisgat Zeev in Jerusalem the residents formed a vigilante-style patrol to stop young Jewish women meeting with Palestinians. And in 2007, the municipality of Kiryat Gat launched a programme in schools to warn Jewish girls of the dangers of dating local Bedouin men. The girls were shown a video titled 'Sleeping with the enemy', which described mixed couples as an 'unnatural phenomenon'." Id. at 191.).

AMERICA'S MESSIANIC DREAM

David Brion Davis, Revolutions: Reflections on American Equality and Foreign Liberations (Cambridge, Massachusetts, & London, England, 1990) ("How are we to interpret the response of the United States, over the course of two centuries, to foreign revolutions? If we still cling to remnants of our old national messianic dream, we may ask why it is that a nation created by revolution, a nation whose first president ceremoniously received the key to the fallen Bastille as the 'early trophy,' in Thomas Paine's words, 'of the Spoils of Despotism and the first ripe fruits of American principles transplanted into Europe'--why such a nation should become in time the world's leading adversary of popular revolutions, the neo-Metternichian supporter of such reactionary leaders as Fulgencio Batista y Zaldivar of Cuba, Ferdinand Marcos of the Philippines, Mohammed Riza Pahlavi of Iran, Ngo Dinh Diem of South Vietnam, Anastasio Somoza Debayle of Nicaragua, Francois Duvalier of Haiti, and Augusto Pinochet Ugarte of Chile?" Id. at 3. "In an earlier chapter [Tocqueville] had also noted that in the 1790s, 'only Washington's immense popularity' had prevented the popular feeling and passion favoring the French Revolution from plunging the nation into war with England, contrary to common sense and obvious national interest." "There is much wisdom in these observation. But reflecting on his visit of 1831, Tocqueville could not foresee the class, ethnic, and ideological differences that would divide Americans over the Mexican War, the Revolution of 1848, and the consequences of industrialization. His dependence on John Marshall's Life of Washington prevented him from seeing that there was more than irrational feelings behind American sympathies with the French revolution, which few Frenchmen could perceive as a direct consequence of the American Revolution. Tocqueville could never really grasp the significance of America's messianic mission, even though he contributed to it in ways that extended from Catharine Beecher's vision of the rile of American women in the foreign policy of Woodrow Wilson and the neo-Tocquevilleans of the 1950s and 1960s. By messianic mission I mean the desire to regenerate the United States by making the it the model for revolutionary movements throughout the world. . . . " Id. at 79-80. "Foreign revolutions have helped Americans to tune or adjust the inevitable tension between changing ideals of perfection and present reality. Without a sense of new possibilities in history, without evidence that arrogance and oppression can sometimes be overthrown, the cello strings of American democracy might easily have lost all their capacity for sound. We no longer have time for self-righteousness, cynicism, or the pretense that we have played no part in the twentieth-century's crimes. . . ." Id. at 85. As so it goes.).

FREE, BUT "IN A SENSE WHICH HAS NOTHING TO DO WITH JUSTICE"

James Baldwin, Collected Essays: Notes of a Native Son; Nobody Knows My Name; The Fire Next Time; No Name in the Street; The Devil Finds Work; Other Essays , edited by Toni Morrison (New York: Library of America, 1998) (From " Princes and Powers": "The Conference of Negro-African Writers and Artist (Le Congres des Ecrivains et Artistes Noirs) opened on Wednesday, September 19, 1956, in the Sorbonne's Amphitheatre Descartes, in Paris. . . ." Id. at 143, 143. "For what, at bottom, distinguished the Americans from the Negroes who surrounded us, men from Nigeria, Senegal, Barbados, Martinique--so many names for so many disciplines--was the banal and abruptly quite overwhelming fact that we had been born in a society, which, in a way quite inconceivable for Africans, and no longer real for Europeans, was open, and in a sense which has nothing to do with justice or injustice, was free. It was a society, in short, in which nothing was fixed and we had therefore been born to a great number of possibilities, wretched as these possibilities seemed at the instant of our birth. Moreover, the land of our forefathers' exile had been made, by that travail, our home. It may have been the popular impulse to keep us at the bottom of the perpetually shifting and bewildered populace; but we were, on the other hand, almost personally indispensable to each of them, simply because, without us, they could never have been certain, in such confusion, where the bottom was; and nothing, in any case, could take away our title to the land which we, too, had purchased with our blood. This results in a psychology very different--at its best and at its worst--from the psychology which is produced by a sense of having been invaded and overrun, the sense of having no recourse whatever against oppression other than overthrowing the machinery of the oppressor. We had been dealing with, had been made and mangled by, another machinery altogether. It has never been our interest to overthrow it. It had been necessary to make the machinery work for our benefit and the possibility of its doing so had been, so to speak, built in." Id. at 147-148. From "The Devil Finds Work: An Essay": "The blacks have a song which says, I can't believe what you say, because I see what you do." No American film, relating to blacks can possibly incorporate this observation. This observation--set to music, as are so many black observations--denies, simply, the validity of the legend which is responsible for these films: films which exist for the sole purpose of perpetuating the legend." Id. at 477, 522.).

PROFESSOR DERRICK BELL

Derrick Bell, Law Professor and Racial Advocate, Dies at 80 ...

1 day ago ... A pioneer of “critical race theory,” Mr. Bell was the first tenured black professor at Harvard Law School before moving to New York University.

FROM MUSTAFA KEMEL TO ATATURK

M. Sukru Hanioglu, Ataturk: An Intellectual Biography (Princeton & Oxford: Princeton U. Press, 2011) ("If popular expectations were any guide, two paths to global leadership lay wide open to Mustafa Kemal in 1922: he could either capitalize on Ottoman possession of the caliphate in order to seize the mantle of pan-Islamic leadership, or he could set himself up as an into-imperialist model for Asian and African socialists. But it was at this juncture that Mustafa Kemal's Turkist, scientistic, and pro-Western leanings became manifest, leading him and the Turkish nation down an uncharted path that combined intense nationalism with an extreme commitment to Western secularism." Id. at 131. "This study has shown that while Mustafa Kemal Ataturk played a momentous role in the transition from the Ottoman order to modern Turkey, his work cannot be considered that of a sagelike dispenser of wisdom who came to the scene with novel ideas and an original program." Id. at 226. A short, yet interesting read.).

RATIONAL(IZING) RACISM?

Jody David Armour, Negrophobia and Reasonable Racism: The Hidden Costs of Being Black in America (New York: NYU Press, 1997).

BOOK OF THE WEEK: WEEK FORTY, 2011

Orlando Figes, The Crimean War: A History (New York: Metropolitan Books, 2010) ("The name of the Crimean War does not reflect its global scale and huge significance for Europe, Russia and that area of the world -- stretching from the Balkans to Jerusalem, from Constantinople to the Caucasus -- that came to be defined by the Eastern Question, the great international problem posed by the disintegration of the Ottoman Empire. Perhaps it would be better to adopt the Russian name for the Crimean War, the 'Eastern War' (Vostochnaia voina)), which at least has the merit of connecting it to the Eastern Question, or even the 'Turco-Russian War', the name for it in many Turkish sources, which place it in the longer-term historical context of centuries of warfare between the Russians and the Ottomans, although this omits the crucial factor of Western intervention in the war." Id. at xx. "What I hope emerges from these pages is a new appreciation of the war's importance as a major turning point in the history of Europe, Russia and the Middle East, the consequences off which are still felt today . . . Long neglected . . . with little real discussion of the war's religious origins, the complex politics of the Eastern Question, Christian-Muslim relations in the Black Sea region, or the influence of European Russophobia, with which it is difficult to grasp the conflicts true significance." Id. at xxi. Also see Gary J. Bass, "Why the Crimean War Matters," NYT Book Review, Sunday, 7/10/2011.).

IF ALL LAW IS POLITICS, AND ALL POLITICS IS LOCAL, THEN ALL LAW IS LOCAL POLITICS

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

T. M. SCANLON

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

SNITCHING, OR ALWAYS UNDER SURVEILLANCE: ISN'T AMERICA HEADED IN THIS DIRECTION?

Help Wanted: Busybodies With Cameras By CHOE SANG-HUN More South Koreans are joining the growing ranks of camera-toting bounty hunters, secretly videotaping fellow citizens breaking the law and collecting the rewards.

THE ECONOMICS OF COMPLIMENTS

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

READ RICHARD OPPEL'S PIECE IN TODAY'S NYT

Sentencing Shift Gives New Leverage to Prosecutors By RICHARD A. OPPEL Jr. Empowered by years of tough sentencing-law changes in state legislatures and Congress, prosecutors have more muscle to extract guilty pleas from defendants and avoid trial.

BOOK OF THE WEEK: WEEK THIRTY-NINE, 2011

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

A PERSPECTIVE ON AMERICA AT THE TURN OF THE TWENTIETH CENTURY

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

"TRUE SERIOUSNESS" VERSUS "THE MERE PERFORMANCE OF SERIOUSNESS"

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

"WHAT ARE YOUR DREAMS FOR COCO?"

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

LANGUAGE OF THE HEART AND THE POWER OF THE LAW

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

BOOK OF THE WEEK: WEEK THIRTY-EIGHT, 2011

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

BACKGROUND READING FOR A COURSE NOT TAUGHT

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

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

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

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

THE STATE OF AMERICAN EDUCATION?

• Average Scores Slip on SAT

  4 hours ago ... The College Board attributes the decline in average SAT scores this year to the increasing diversity of students taking the test.September 15, 2011 - By TAMAR LEWIN - Education

READ DAVID BROOKS'S OP-ED PIECE IN TODAY'S NYT

OP-ED COLUMNIST If It Feels Right ... By DAVID BROOKS The rise of moral individualism has produced a generation unable to speak intelligibly about the virtuous life.

IMAGINATION

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

BOOK OF THE WEEK: WEEK THIRTY-SEVEN, 2011

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

ON EDUCATION. WHERE WOULD WE BE HAD THIS BEEN, OR WERE NOW, THE DOMINATE AND CONTROLLING LOGIC?

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

HERBERT SPENCER

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

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

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

COLLEGES AND UNIVERSITIES ENTER, AND FACE UP TO THE REALITIES OF, THE MARKETPLACE

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

TOO MANY CHOICES?

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

WOE BE US

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

THE ABRIDGED DEVIL'S DICTIONARY FOR LAW STUDENTS

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

BOOK OF THE WEEK: WEEK THIRTY-SIX, 2011

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

BENJAMIN FRANKLIN, pt. 2

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

BENJAMIN FRANKLIN, pt. 1

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

BOOK OF THE WEEK: WEEK THIRTY-FIVE, 2011

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

'DEMOCRACY CANNOT IN ITSELF ENSURE GOOD GOVERNMENT'

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

WHAT IS JUSTICE?

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

CAN ONE BE BOTH A KANTIAN AND A CONSEQUENTIALIST?

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

BOOK OF THE WEEK: WEEK THIRTY-FOUR, 2011

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