MANIPULATION AND DECEPTION

George A. Akerlof & Robert J. Shiller, Phishing for Phools: The Economics of Manipulation and Deception (Princeton & Oxford: Princeton U. Press, 2015) (“We are creating a new, broader meaning for the word phish here. . . . It is about getting people to do things that are in the interest of the phisherman, but not in the interest of the target.”  Id. at xi. “By our definition, a phool is someone who, for whatever reason, is successfully phished”. Id. at xi.  “Free markets do not just produce what we really want; they also produce what we want according to our monkey-on-the-shoulder tastes. Free markets are also about producing wants, so we will buy what they have to sell. In the United States the goal of almost every business person (with the exception of some who sell stocks and bonds and bank accounts . . . ) is to get you to spend your money. Free markets produce continual temptation. Life is a proverbial trip to a parking lot in which you are constantly passing spaces left open for the disabled.” Id. at 20.  Note: The late twentieth and  early twenty-first centuries has seen an explosion in schools, and education generally, operating on a corporate-business model, and this is not just in for-profits schools. So, if key university administrators are essentially businessmen and businesswomen who are trying to get you to spend your money, then what are they really selling? Is it some thing one needs? Or is, it a something you want, and want because the ‘want’ has been manufactured? In otherwords, to what extent do universities phish for phools?).

WHEN IT COMES TO NATIONAL SECURITY, IS IT OKAY FOR THE GOVERNMENT TO LIE TO THE COURTS?

Lorraine K. Bannai, Enduring Conviction: Fred Korematsu and His Quest For Justice (Seattle & London: U. of Washington Press, 2015) ("The documents that Peter brought Fred were remarkable and indeed shocking. They, together with other key documents found by Aiko, showed that the government had purposefully suppressed, altered, and destroyed material evidence during World War II to ensure that the Supreme Court upheld the wartime curfew, forced removal, and--if it reached that issue--incarceration. The government had, in sum, engineered a 'win' based on a false and fraudulent record and had lied to the court, Among other things, the documents showed that the government had withheld form the court key intelligence reports at odds with its claim that its actions were justified by military necessity. They also showed that when the government learn that General De Witt's Final Report contradicted its arguments in Fred's case, the original report was destroyed and a new, altered, more consistent with the government's arguments, was given to the court." "The documents showed that the government knew of, and withheld, its own intelligence reports that refuted its claim of military necessity, In Fred's case, the government had argued that Japanese Americans posed a threat that required immediate action. In order to support that argument, the government provided the Supreme Court DeWitts's Final Report, in which DeWitt asserted that the orders were justified because Japanese Americana were prone to disloyalty and because there was evidence suggesting that they were involved in illegal shore-to-ship signaling. Solicitor General Fahy stood behind DeWitt's report in his oral argument before the Supreme Court. He asserted, '[N]ot only the military judgment of the general, but the judgment of the Government of the United States, has always been in justification of the measures taken; and no person in any responsible position has ever taken a contrary position." Id. at 139-140.).

PROPAGANDA

Jason Stanley, How Propaganda Works (Princeton & Oxford: Princeton U. Press, 2015).

"During the decade I was immersed in the arcane details of formal semantics and pragmatics, the United States was in the throes of a mad experiment in mass incarceration, falling largely on the heads of the minority who were the descendants of slaves. Sylvia Wynter published an article that begins with the information that "public officials of the judicial system of Los Angeles routinely use the acronym 'N.H.I.' to refer to any case that involved a breach of the right of young Black males who belonged to the jobless category of the inner city ghettos. N.H.I means 'no humans involved.'" Wynter's article links the method of dehumanization of American citizens of African descent to the dehumanization of Armenians by Turkish pan-nationalists in the First World War Period, and Jew by German nationalists during the Second War World period, In these latter cases, the dehumanization was a preparation for mass slaughter."  Id. at xiv (citing Sylvia Wynter, "'No Humans Involved': An Open Letter to My Colleagues," Knowledge on Trial 1 (1994): 3-11).

"Why are we so inclined to confuse, quite sincerely, objective claims of reason with what turns out to be, introspect, biased and self-serving opinions? Why does seemingly objective discourse seem nevertheless to tap into bias and stereotype? And most pressingly, why, across continents and centuries, are the claims of oppressed and exploited groups routinely dismissed at the time, when history has subsequently revealed that the claims should have appeared to be clearly correct? These are the questions at the hear of this book." Id. at xvi-xvii.

Jason Stanley, Know How (Oxford: Oxford U. Press, 2011).

Jason Stanley, Knowledge and Practical Interests (Oxford: Clarendon Press/Oxford U. Press, 2005).

Jason Stanley, Language in Context (Oxford: Clarendon Press/Oxford U. Press, 2007).

DEHUMANIZATION

David Livingstone Smith, Less Than Human: Why We Demean, Enslave, and Exterminate Others (New York: St. Martin's Press, 2015) ("[D]ehumization is the belief that some beings only appear human, but beneath the surface, where it really counts, they aren't at all." Id. at 4-5. ("We are all potential dehumanizes, just as we all are potential objects of dehumanization. The problem of dehumanization is everyone's problem. My ask is to explain why." Id. at 25. "In this book, I will argue that when we dehumanize people we think of them as counterfeit human beings--creatures that look like humans, but who are not endowed with a human essence--and that this is possible only because of our natural tendency to think that there are essence-based natural kinds. This way of thinking does;t come form 'outside.' We neither absorb it from our culture, nor learn it from observation. Rather, it seems to reflect out cognitive architecture--the evolved design of the human psyche." Id. at 101. [Query: Have you noticed the need of many people to "feel special," to think of themselves as "unique" in a world of several billion people? Is this apart of the human psyche? If it is, then perhaps the tendency to dehumanize is part of the human psyche as well. After all, it is really difficult to maintain the view of oneself, or one's group, as special and unique unless one views some others as less-than-special, less than unique.] "In this chapter [Chapter 7, titled "The Cruel Animal"]  I'm going to defend the proposition that Homo sapiens are the only animals capable of cruelty and war. I'm going to explore where this leads and use it to develop a more detailed explanation of why dehumanization causes moral disengagement." Id. at 203. "Sometimes dehumanized people are thought to be a deposed or hated 'animal' of no determinate kind. However, they are more often represented as any of three kinds of creature: dangerous predators, unclean animals,or prey. There are occasional departures from this pattern, but for the most part, it is surprisingly robust across both time and place." Id. at 252. Ask yourself, how does the law dehumanize certain people? As lawyers, what is your role in that dehumanization process? Lately, there is a lot of lip-service being given to mercy, compassion, forgiveness, etc. Perhaps a little more attention should be given to our dark side, our tendency to dehumanize. It is relatively easy, and comfortable, to contemplate dehumanization by others, or aboard. It is a greater challenge to look closer to home and see the dehumanization of others in our own minds and hearts. And ask yourself whether notions of racial, ethnic, cultural, national, etc., pride are masking acts and values of dehumanization.).

ARUNDHATI ROY ON INDIA, GLOBAL CORPORATE CAPITALISM, FASCISM

Arundhati Roy, Capitalism: A Ghost Story (Chicago: Haymarket Books, 2014) ("The [Indian] army is experienced enough to know that coercive force alone cannot carry out or manage social engineering on the scale that is envisaged by India's planners. War against the poor is one thing. But for the rest of us--the middle class, white-collar workers, intellectuals, 'opinion-makers'--it has to be 'perception management.' And for this we must turn out attention to the exquisite art of Corporate Philanthropy." Id. at 17. "Poverty, too, like feminism, is often framed as an identity problem. As though the poor had not been created by injustice but are a lost tribe who just happen to exist and can be rescued in the short term by a system of grievance redressal (administer by NGOs on an individual, person-to-person basis), and whose long-term resurrection will come from Good Governance. Under the regime of Global Corporate Capitalism, it goes without saying." Id. at 37. "Do we need weapons to fight wars? Or do we need wars to create a market for weapons? After all, the economies of Europe, the United States, and Israel depend hugely on their weapons industry. It's the one thing they haven't outsourced to China." Id. at 43. "Capitalism is in crisis. Trickledown failed. Now Gush-Up is in trouble too. The international financial meltdown is closing in. [] Major international corporations are sitting on huge piles of money, not sure where to invest it, nor sure how the financial crisis wildly out. There is a major, structural crack in the juggernaut of global capital." Id. at 45.).

Arundhati Roy, The Cost of Living (New York: The Modern Library, 1999).

Arundhati Roy, Field Notes on Democracy: Listening to Grasshoppers (Chicago: Haymarket Books, 2009) ("Fascism's firm footprint has appeared in India. Let's mark the date: Spring 2002. While we think the U.S. president and the Coalition Against Terror for creating a congenial international atmosphere for fascism's ghastly debut, we can't credit them for the years it has been brewing in our public and private lives." Id. at 42. "The incident, creeping fascism of the past few years has been grounded by many of our 'democratic' institutions. Everyone has flirted with it--Parliament, the press, the police, the administration, the public. Even 'secularists' have been guilty of helping to create the  right climate. Each time you defend the right of an institution, any institution (including the Supreme Court), to exercise unfettered, unaccountable powers that must never be challenged, you move toward fascism." Id. at 43.).

Arundhati Roy, The Greater Common Good (Bombay: IndiaBook Distributors, 1999) ("'If you are to suffer, you should suffer in the interest of the country...' (Jawaharlal Nehru, speaking to villagers who were to be displaced by the Hirakud dam, 1948.) I stood on a hill and laughed out loud." Id. at 1. "From being self-sufficient and free, to being impoverished and yoked to the whims of a world you know nothing, nothing about--what d'you suppose it must feel like? Would you like to trade your beach house in Goa for a hovel in Paharganj? No? Not even for the sake of the Nation?" Id. at 39. "Power s fortified not just by what it destroys, but also by what it creates.  Not just by what it takes, but also by what it gives. And Powerlessness, reaffirmed not just by the helpless of those who have lost, but also by gratitude of those who have (or think they have) gained." Id. at 61.).

Arundhati Roy, Public Power in the Age of Empire (New York: Open Media Pamphlet Series/Seven Stories Press, 2004) ("In the United States . . . the blurring of the distinction between sarkar and public [that is, between the government and the people] has penetrated far deeper into society. This could be a sign of a robust democracy, but unfortunately, it's a little more complicated and less pretty than that. Among other things, it has to do with the elaborate web of paranoia generated by the U.S. searcher and spun out by the corporate media and Hollywood. Ordinary people in the United States have been manipulated into imaging they are a people unde siege whose sole refuge and protector is their government [and their guns?].  If it isn't the Communists, it's al-Qaeda. If it isn't Cuba, it's Nicaragua. [If it is blacks, it's illegal immigrants?]  As a result, this, the most powerful nation in the world--with its unmatchable arsenal of weapons, its history of having waged and sponsored endless wars, and the only nation in history to have actually used nuclear bombs--is peopled by a terrified citizenry, jumping at shadows. A people bonded to the state not by social services, or public health care, or employment guarantees, but by fear." Id. at 7-8. "If you think about it, the logic that underlies the war on terrorism and the logic that underlies terrorism are exactly the same. Both make ordinary citizens pay for the actions of their government. Al-Qaeda made the people of the United States pay with their lives for the actions of their government in Palestine, Saudi Arabia, Iraq, and Afghanistan. The U. S. government has made the people of Afghanistan pay in the thousands for the actions of the Taliban and the people of Iraq pay in the hundreds of thousands for the actions of Saddam Hussein." Id. at 11. "A second hazard facing mass movements is the NGO-ization of resistance. [] NGOs give the impression that they are filling the vacuum created by a retreating state. And they are, but in a materially inconsequential way. Their real contribution is that they defuse political anger and dole out as aid or benevolence what people ought to have by right. They alter the public psyche. They turn people into dependent victims and blunt the edges of political resistance. NGOs form a sort of buffer between the searcher and public. Between Empire and its subjects. They have become the arbitrators the interpreters the facilitators of the discourse, They play out the role of the 'reasonable man' in an unfair , unreasonable war." Id. at 41-43. "The NGO-ization of politics threatens to turn resistance into a well-mannered, reasonable, salaried, 9-to-5 job. With a few perks thrown in." "Real resistance has real consequences, And no salary." Id. at 46.).

AS AMERICANS, WE NEED TO WAKE UP TO WHAT IS REALLY HAPPENING IN THE GLOBAL WORLD . . . AND THE MANY THINGS FOR WHICH WE, THE PEOPLE, ARE RESPONSIBLE.

RULE OF LAW IN THE GLOBAL CONTEXT

Stephen Breyer, The Court and the World: American Law and the New Global Realities (New York: Knopf, 2015) (“This brings us to perhaps the most pertinent reason for attempting to address today’s transnational problems through law: any success in that effort helps to advance the rule of law itself. The rule of law represents the polar opposite of the ‘arbitrary,’ which the dictionary equates with the unjust, the illegal, the unreasonable, the autocratic, the despotic,, and the tyrannical. Like democracy and human rights, the rule of law is something more than an ideological commitment for Americans; it is a sine qua non for our system, and where it does not exist, our interests cannot be secured. At the time of 9/11, Justice Sandra Day O’Connor and I were in India, about to discuss the rule of law with Indian jurists. Our reception there made clear to us that the important divisions in the world are not geographical, racial, or religious but between those who believe in a rule of law and those who do not. Jurists across the world help to weave this fabric in their day-to-day work, persisting in their labors even if, in the manner of Penelope’s handiwork what is woven by day sometimes unravels during the night, Yet we continue working, not as politicians but as technicians, hopeful but uncertain of success,  Id. at 283-284).

NO ONE WOULD EVER DESCRIBE AMERICANS AS "AN INTELLECTUAL PEOPLE"

Sudhir Hazareesingh, How the French Think: An Affectionate Portrait of an Intellectual People (New York: Basic Books, 2015) (All great nations think of themselves as exceptional. France's distinctiveness in this regard lies in its during belief in its own moral and intellectual prowess." Id. at 5. Also, Mark Lilla, "The Strangely Conservative French," New York Review of Books, 11/22/2015. "Culture is a cult object in France. It has been estimated that about half of the French population is reading a book at some point every day, around two thousand book prizes are given out every year, and three thousand cultural festivals are held, often in splendid settings. Large government subsidies are given to public radio stations like France Culture, as well as to independent bookstores and countless little magazines. Some years ago the the literary historian Marc Fumaroli, now a member of the Academie Francaise, published a blistering attack on this system, titled L'Etat culture (The Cultural State). He did so, though, not on the grounds that it was elitist or cost too much, but in the name of high culture, arguing that government largesse and cultural bureaucracy stifled genuine creativity and independence." "Anti-intellectual populism a l'Americaine has no traction here." Id. at 50.).