Thursday, September 13, 2012

SUGGESTED AUTUMN READING FOR LAW STUDENTS

Chris Hedges & Joe Sacco, Days of Destruction, Days of Revolt (New York: Nation Books, 2012) ("We ... no longer have any mechanisms within the formal structures of power that will protect or advance our rights. we, too, have undergone a coup d'etat carried out not by the stone-faced leaders of a monolithic Communist Party, but by our largely anonymous corporate overlords. George Orwell wrote that all tyrannies rule though fraud and force, but that once the fraud is exposed they must rely exclusively on force. We have now entered the era of naked force. The internal security and surveillance state, justified in the name of the war on terror, will be the instrument used against us. The corrosion of the legal system, begun by George W. Bush and codified by Barack Obama's Democratic administration, means we can all be denied habeas corpus. The warrantless wiretapping, eavesdropping, and monitoring of tens of millions of citizens, once illegal, is now legal. The state has given itself the power to unilaterally declare U.S. citizens as enemy combatants and torture or assassinate them, as Barack Obama did when he in September 2011 ordered the killing of the American-born Islamist cleric Anwar al-Awlaki  in Yemen. The state can deny U.S. citizens suspected of what it vaguely defines as 'terrosrist' activities the right to a trial. It can turn these citizens over to the military, which can hold them without charges indefinitely. Our country's capacity for draconian control in the face of widespread unrest means we will be no different from other totalitarian regimes throughout history. Police forces in major cities have been transformed into paramilitary units with assault rifles, helicopters, and armored vehicles. Almost certainly, if the pressure mounts, as I expect it will, these militarized police forces will become ubiquitous and people will be killed." "The corruption of the legal system--the ability of the state to make legal what was once illegal--is always the precursor to totalitarian rule. The timidity of those tasked with protecting our Constitutional rights--the media, elected official, judges, the one million lawyers in this country, and the thousands of law school professors and law school deans--means there is no internal mechanism with which to decry or prevent abuse. Occupy encampments were violently shut down by police in major cities.... Voices tasked with defending the rule of law and the right of dissent and nonviolent protest remained silent. If peaceful protest is not defended, if it is effectively thwarted by the corporate state, we will see widespread anger and frustration manifest in an ascendant militancy, rioting, the destruction of property, and violence." Id. at 201-241. Also see, Philipp Meyer, "The Other America," NYT Book Review, Sunday, 8/19/2012.).

Claire Finkelstein, Jens David Ohlin, & Andrew Altman, eds., Targeted Killings: Law and Morality in an Asymmetrical World (Oxford & New York: Oxford U. Press, 2012).

Arthur Goldberg, The New Hate: A History of Fear and Loathing on the Populist Right (New York: Pantheon, 2012) ("Just as white supremacists believe that the less melanin they have in their skin, the smarter and stronger and better-looking they are (a faith they cleave to no matter what doubts they might harbor about their dwindling status and declining prospects). exceptionalism is the conviction that America is morally, legally, militarily, spiritually, and economically superior to any other land. Just saying as much--witnessing to it out loud, like a subway evangelist praising Jesus's name during rush hour--is enough to make some of America's intrinsic awesomeness rub off on you." Id. at 308. "Writing in The Washington Post, Karen Tumulty noted that all these recent conservative disquisitions on exceptionalism ... have 'a more intellectual sheen than the false assertion that Obama is secretly a Muslim or that he was born in Kenya.' Then she quotes William Galston of the Brookings Institutions, who said that writing about exceptionalism provides 'a respectable way of raising the question of whether Obama is one of us.'" "And there you have it--the core proposition of the not-so-New Hate: that there are those of us who are really 'us' and those of us who are essentially 'other'--aliens, interlopers, pretenders, and culture distorters, parasites and freeloaders, who bear the blame for the fact that being a white Anglo-Saxon Protestant American no longer suffices to make one the cynosure of the world." Id. at 309-310.).

Simon Johnson & James Kwak, 13 Bankers: The Wall Street Takeover and the Next Financial Meltdown (New York: Pantheon, 2010) ("Our goal today is to change the conventional wisdom about enormous banks. In the long term, the most effective constraint on the financial sector is pubic opinion. Today, anyone proposing to end the regulation of pharmaceuticals or to suspend government supervision of nuclear power stations would not be taken seriously. Our democratic system allows the expression of all views, but we filter those views based on a collective assessment of which are sensible and which are not. The best defense against a massive financial crisis is a popular consensus that too big to fail is too big to exist." "This is at its heart a question of politics, not of economics or of regulatory technicalities.... The conventional wisdom, shaped during the three decades of deregulation, innovation, and risk-taking that brought us the recent financial crisis, is that large, sophisticated banks are a critical pillar of economic prosperity. That conventional wisdom has entrenched itself in Washington, where administration officials, regulators, and legislators agree with the Wall Street line on intellectual grounds, or see their personal interests (financial or political) aligned with the interests of Wall Street, or simply do not feel qualified to question the experts in the thousand-dollar suits. Challenging this ideology is ultimately about politics. The megabucks used political power to obtain their license to gamble with other people's money; taking that license away requires confronting that power head-on. It requires a decision that the economic prosperity of the new financial oligarchy is dangerous both to economic prosperity and to the democracy that is supposed to ensure that government policies serve the greater good of society." Id. at 221. "Few people, if any, thought that these crisis had anything to teach the United States, the world's richest economy and flagship democracy. The differences between Indonesia or Korea and the United States are obvious: income level, financial system, political track record, and so on. Our most ingrained beliefs run directly counter to the idea that a rich, privileged oligarchy could use government relationships to enrich itself in the good times and protect itself in the bad times. Our economic system is founded on the notion of fair competition in a market free from government influence. Our society cherishes few things more than the idea that all Americans have an equal opportunity to make money or participate in government. There is no construct more important in American discourse than the 'middle class'." Id. at 53. "The New American Dream was to make tens of millions on Wall Street or as a hedge fund manager in Greenwich, Connecticut. But it was also connected to the Old American Dream--to own a house of one's own. In the last thirty years, the Wall Street ideology borrowed heavily from the older, more deep-rooted American ideology of homeownership, which became widely accepted after World War II as government programs and economic prosperity made possible a homeowning middle class. Wall Street co-opted this ideology to justify the central place of modern finance in the economic and political system, especially as the homeownership rate climbed from 64 percent, where it sat form 1983 to 1994, to a high of 69 percent in the 2000." Id. at 109. "In any case, homeownership ranks alongside motherhood and apple pie in the firmament of American values, and helping more people buy houses is almost aways a good thing." Id. at 111. "For anyone who had doubts about the value of financial innovation and the importance of Wall Street, the ideology of homeownership provided easy assurance. The idea that complex securities could help low- and middle-income families own homes was especially attractive to Democratic congressmen and officials who might ordinarily be distrustful of mortgage lenders and investment bankers, and helped seal off Wall Street's new money machine from criticism." Id. at 112-113.).

Simon Johnson & James Kwak, White House Burning: The Founding Fathers, Our National Debt, and Why It Matters to You (New York: Pantheon, 2012) ("Both Federalists and Republicans had always been 'fiscally responsible' in the shallow sense that they believed the country should make required payments on its debts. But there is a deeper meaning of fiscal responsibility: the recognition that if you want something, you have to pay for it, either now or in the future. If a government cannot demonstrate that type of fiscal responsibility--through the willingness and capacity to levy and collect taxes when necessary--it will have trouble borrowing money in a time of crisis." Id. at 6. "The prominence of the Tea Party is due not only to grassroots mobilization but also to financial and organizational support provided by traditional Republican power brokers like Dick Armey, conservative billionaires with an antigovernment, antitax agenda, and established media outlets, especially Fox News. Detailed research into the Tea Party by political scientists David Campbell and Robert Putnam also shows that its members are not new entrants to politics hurt by the economic downturn or radicalized by recent events, but largely white, Christian, socially conservative activists who have been the backbone of the of the conservative movement for decades. In other words, the Tea Party is to a significant degree the public face of the conscious product of the same antigovernment movement the Newt Gingrich led to power in the 1990s. But whatever its provenance, the Tea Party has succeeded in making overt hostility toward government and taxes a powerful force in Washington." Id. at 100-101. "Magical thinking enables politicians to avoid seriously addressing deficits and the national debt--and to punish those who try to do so. President Reagan, who made balancing the budget a central theme of his 1980 election campaign, presided over what were then the largest peacetime deficits in U.S. history. When his successor, President George H. W. Bush, agreed to raise taxes to reduce the deficit in 1990, he was widely attacked by conservatives in his own arty, which contributed to his defeat two years later. President Clinton's similar decision in 1993 was one factor in his party's crushing losses in the 1994 elections. A decade later, when Vice President Dick Cheney said, 'Reagan proved deficits don't matter,' it probably wasn't economics he had in mind: it was politics. In this political climate, there are ample rewards for talking about deficits, but not for doing much about them." Id. at 233.).

Garret Keizer, Privacy (New York: Picador, 2012) ("In essence they are raising what may be the central question about the right of privacy, which is not about how best to encrypt our e-mail messages or how best to legislate against online identity theft. The central question is whether we hold our privacy sacred enough to endure the inconveniences necessary to preserve it. Or perhaps the central question is whether such a thing as sacredness even exists in what Americans, with characteristic solipsism, refer to as 'our post-9/11 world'." Id. at 139. "The first thing we can say by way of defining privacy is that it exists only by choice. In the absence of choice, privacy is merely the privation with which it shares a common linguistic root, just as sex, work, and singing a song become rape, slavery, and humiliation when forced on us against our will...." "The confusion of privacy and loneliness amounts to the Gordon knot of modern capitalist societies, the big blue bow of alienation on our package of consumer goods. It also bedevils the thinking of capitalism's less imaginative critics, who mistakenly assume that by eliminating everything private they will eliminate loneliness too.... [S]uffice it to say that privacy is either a choice or a lie." Id. at 14. "[O]nce a society ceases to trust its people, it exempts them from any obligation to be trustworthy." Id. at 46. "Violations of privacy can work up the class ladder as well as down. The only thing a rogue cops loves more than shaking down a Hispanic kid in a lowrider is getting his hands on a college professor in a Saab. (Jackpot if the college professor is black)." Id. at 77.).

Jill Lepore, The Mansion of Happiness: A History of Life and Death (New York: Knopf, 2012) (See, Dani Shapiro, "Streams of Consciousness," NYT Book Review, Sunday, 8/12/2012.).

Joanna Macy, World As Lover, World As Self: Courage for Global Justice and Ecological Renewal (Berkeley: Parallax Press, 2007) ("The institutions of our society co-arise with us. They are not independent structures separate from our inner lives, like some backdrop to our personal dramas. Nor are they merely projections of our own minds. As collective forms of our ignorance, fears, and greed, they acquire their own momentum, enlist our massive obedience, and depend on our collective consent." Id. at 43. "When we are fearful, and the odds are running against us, it is easy to let the heart and mind go numb.... Yet of all the danger we face, from climate chaos to nuclear warfare, none is so great as the deadening of our response. The numbness of mind and heart is already upon us--in the diversions we create for ourselves as individuals and nations, in the fights we pick, the aims we pursue, the stuff we buy." "The very alarms that should rivet our attention and bond us in collective action tend to have the opposite effect. They make us want to pull down the blinds and busy ourselves with other things. We eat meat from factory-farmsed animals and produce grown by agribusiness, knowing of the pesticides and hormones they contain, but preferring not to think they'll cause harm. We buy clothes without noticing where they are made, preferring not to think of the sweatshops they may have come from. We don't bother voting, or if we do, we vote for candidates we may not believe will address the real problems, hoping against previous experience that they will suddenly awaken and act boldly to save us. Have we become callous, nihilistic? Have we ceased to care what happens to life on Earth? Id. at 92. "To dismantle weapons, in every sense of the word, they [i.e., the Shambhala warriors] must go into the corridors of power where decisions are made." The Shambhala warriors know they can do this because the weapons are manomaya. They are 'mind-made.' Made by the human mind, they can be unmade by the human mind. The Shambhala warriors know that the dangers threatening life on Earth are not visited upon us by extraterrestrial powers or satanic deities. They arise from our own choices, our priorities and relationships." Id. at 121.).

Joanna Macy & Norbert Gahbler, Pass It On: Five Stories That Can Change the World (Berkeley: Parallax Press, 2010) ("When anger arises over stupid, destructive policies, and the pollution of our world tempts me to hopelessness, I remember Tulku's smile on the parapet of Khampagar. And when I catch myself looking for a quick fix of inspiration, or assurances of success, or simply a mood of optimism before doing what needs to be done, I think of him and hear words that he never spoke. Don't wait, just do it. A better opportunity may not come along. Place one stone on top of another. Don't waste your spirit trying to compute your short-term chances of success, because you are in it for the long haul. And it will be a long haul, with inevitable risks and hardships. So just keep on, steady and spunky like a Khampa pony crossing the mountains, because in the long run, it's our perseverance that counts." Id. at 100.).

Thomas E. Mann & Norman J. Ornstein, It's Even Worst Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism (New York: Basic Books, 2012) ("The dysfunction that arises from the incompatibility of the U.S. constitutional system with parliamentary-type parties is compounded by the asymmetric polarization of those parties. Today's Republican Party... is an insurgent outlier. It has become ideologically extreme; contemptuous of the inherited social and economic policy regime; scornful of compromise; unpersuaded by conventional understanding of facts, evidence, and science; and dismissive of the legitimacy of its political opposition, all but declaring war on the government. The Democratic Party, while no paragon of civic virtue, is more ideologically centered and diverse, protective of the government's role as it developed over the course of the last century, open to incremental changes in policy fashioned through bargaining with the Republicans, and less disposed to or adept at take-no-prisoners conflict between the parties. This asymmetry between the parties .. constitutes a huge obstacle to effective governance." Id. at 102-103. Also see, Michael Crowley, "A House Divided," NYT Book Review, Sunday, 7/22/2012.).

Kimberly J. Morgan & Andrea Louise Campbell, The Delegated Welfare State: Medicare, Markets, and the Governance of Social Policy (Oxford & New York: Oxford U. Press, 2011) ("Where does administrative power lie? How effectively is the federal government achieving its stated aims? And what do particular governing arrangements mean for politics, redistribution, and accountability?" "In answering these question, we arrived at a view of the American state as a system of delegated and diffused authority in which public and private administrative capacities are pervasively intertwined. Much of the expansion of the American state since the New Deal, and particularly since World War II, has come about though heavy reliance on private actors that are subsidized, regulated, and otherwise encouraged to furnish the goods and services that the state does not directly provide. Private bureaucracies are frequently substituted for public ones. And authority over the management of public programs is delegated to actors who are not only unelected but indirectly accountable to the mass public. When viewed this way, one can say that the American state is vast, as its influence extends well into the many nooks and crannies of our economic and social life. Yet, it influence is indirect, diluted, and masked by a facade of private actors who deliver needed goods and services. When people tell pollsters that they want government to keep its hands off their Medicare or Social Security benefits, they express the very contradiction that lies at the heart of the American stare. It is both there and not there, a leviathan of tremendous power but also an enfeebled giant, one incapable at times of managing seemingly basic governmental tasks." Id. at 223.).

Carl H. Nightingale, Segregation: A Global History of Divided Cities (Chicago & London: U. of Chicago Press, 2012) ("The New Right's 'color blind' revival of the once-faltering 'religion of whiteness' is one of the most important events n the world history of racial theory. It also represents another example of the impact of cross-oceanic intellectual exchange upon the politics of urban space. Once in power, New Right movement leaders (helped by center-left parties that have adopted New Right techniques) combined racial fear-mongering, denials of racial inequality, and free-market rhetoric to blast open a wide political roadway around the flanks of the midcentury antiracist revolution. Three kinds of policy tools helped to drive urban segregation forward and even to give it new forms: authoritarian anticrime and anti-immigration policies disproportionally directed at urban people of color; a willful neglect of fair housing laws that encouraged a variety of segregationist dynamics to persist in land markets and a campaign to deregulate the financial industry that gave lenders and speculators enormous renewed sway over both global and urban politics." Id. at 395-396.).

Carlin Romano, America the Philosophical (New York: Knopf, 2012) (Though I admire the effort, I am not persuaded. Also see, Anthony Gottlieb American Issue, NYT Book Review, Sunday, 7/1/2012.).

Michael J. Sandel, What Money Can't Buy: The Moral Limits of Markets (New York: Farrar, Straus & Giroux, 2012) (See Jeremy Waldron, "Where Money & Markets Don't Belong," New York Review of Books, August 16, 2012.).

Dan Simon, In Doubt: The Psychology of the Criminal Justice Process (Cambridge, Massachusetts, & London, England: Harvard U. Press, 2012) (So much for thinking of oneself a good judge of demeanor/character: "The legal system places a great deal of trust in jurors' ability to detect deceit. As the Court stated, 'A fundamental premise of our criminal trial system is that the jury is the lie detector.' Jurors are explicitly instructed to rely on witness demeanor in assessing the credibility of the evidence. [D]istinguishing between truth and lies on the basis of witness demeanor is a most difficult task. Performing this task successfully requires that liars and truth tellers emit different cues that reliably correspond to the veracity of their statements and that the observers are capable of perceiving and interpreting those cues correctly. The scope of potential cue s is extensive. For example, the definition of the term demeanor in Black's law Dictionary enumerates twenty paraverbal and visual cues, including the witness's hesitation, smiling, zeal expression, yawns, use of eyes, and 'air of candor.' Recall that researchers have examined a slew of 158 cues that people use, and have found that the vast majority, including the universally trusted cue of gaze aversion, are plainly useless as indicators of deceit. To the extent that liars behave differently from truth teller, they do so in ways that are diverse, idiosyncratic and barely perceptible. Even if a universal set of diagnostic cues existed, it is doubtful that people could attend to them all at once, interpret them correctly and integrate them into a discrete inference of veracity. Numerous studies have found consistently that people's judgments of deceit from demeanor are barely better than flipping a coin." Id. at 166. And, the wisdom of crowds depend on the task and the crowd: "It is widely intuited that groups outperform their individual members. The underlying notion is the belief in collective wisdom, which posits that pooling knowledge and judgment produces the best that the group has to offer and discards the worst. The research, however, indicates that this belief does not always correspond with reality. The preponderance of the research suggests that judgment by groups cannot be said to be generally superior or inferior to the performance of their individual members. On some tasks, groups do indeed outperform their members. On other tasks, however, they perform comparably, or fall short of their members. The respective strengths and weaknesses depends on a host of contextual and group-specific factors. Crucially, the effect of deliberation on the group's decision will depend on the accuracy of the faction that wins the day. Groups are bound to reach correct conclusion when the prevailing members hold the correct views, but when they are wrong, deliberation is bound to promote error." Id. at 198.).

Joseph E. Stiglitz, The Price of Inequality (New York & London: Norton, 2012) ("This book is about why our economic system is failing for most Americans, why inequality is growing to the extent it is, and what the consequences are. The underlying thesis is that we are paying a high price for our inequality--an economic system that is less stable and less efficient, with less growth, and a democracy that has been put into peril. But even more is stake: as our economic system is seen to fail for most citizens, and as out political system seems to be captured by moneyed interests, confidence in our democracy and in our market economy will erode along with our global influence. As the reality sinks in that we are no longer a country of opportunity and that even our long-vaunted rule of law and system of justice have been compromised, even our sense of national identity may be put into jeopardy." Id. at xii. "What the banks did was not just a matter of failing to comply with a few technicalities. That was not a victimless crime. To many bankers, the perjury committed as they signed affidavits to rush the foreclosures was just a detail that could be overlooked. But a basic principle of the rule of aw and property rights is that you shouldn't throw someone out of his home when you can't prove he owes any money. But so assiduously did the banks pursue their foreclosures that some people were thrown out of their homes who did not owe any money. To some lenders this is just collateral damage as the banks tell millions of Americans they must give up their homes--some eight million since the crisis began, and an estimated three to four million still to go. The price of foreclosures would have been even higher had it not been for government intervention to stop the robo-signing." Id. at 199. Also see, Thomas B. Edsall, Separate and Unequal," NYT Book Review, Sunday, 8/12/2012.).

Jeremy Waldron, The Harm in Hate Speech (Cambridge, Massachusetts, & London, England, 2012) (See Michael W. McConnell, "You Can't Say That," NYT Book Review, Sunday, 6/24/2012.).

Luigi Zingales, A Capitalism for the People: Recapturing the Lost Genius of American Prosperity (New York: Basic Books, 2012) ("For those readers who are already angry, I hope that my no-holds-barred  expose resonates with your frustration. For those who were not angry when you picked up this book, I hope my expose has made you so." "The degeneration of the US free-market system into crony capitalism should anger any person who loves freedom and democracy." "The purpose of social scientists is to provide a framework for interpreting--and, more important, addressing--economic and social problems. In a democracy, comprehension of problems and their causes is necessary, albeit not sufficient, condition for change." Id. at 121.).