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.

January 22, 2012

DRESS REHEARSAL FOR SECESSION AND CIVIL WAR

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

AMERICAN INDIVIDUALISM AS A RATIONALIZATiON OF SOCIAL AND MORAL IRRESPONSIBILITY

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

JUSTICE, GREATNESS, HAPPINESS

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

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

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

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

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

CORPORATISM AND THE DEATH OF INDIVIDUALISM

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

BOOK OF THE WEEK: WEEK SIX, 2012

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

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

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

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

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

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

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

BOOK OF THE WEEK: WEEK FIVE, 2012

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

ABOUT ISRAEL

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

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

BOOK OF THE WEEK: WEEK FOUR, 2011

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

THE INSTABILITY OF THE AMERICAN DREAM

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

MORALISTIC AMERICANISM

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

BURMA

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