One of these is the product released late summer by the “anything-for-a-buck” John Wiley & Sons, to the discredit of its “author,” famed Wall Street denizen and critic, Henry Kaufman (The Road to Financial Reformation: Warnings, Consequences and Reform, 2009, 240 pp.).

I like Kaufman, nicknamed “Dr. Doom,” having read many of his writings. But this contains virtually no  current analysis of the present [...]]]> About 1 in 5 people I know expert in financial policy has written, is writing, or wants to write a book about the prevailing crisis. Every editor at commercial publishers I know is salivating to get such books under contract and sold to a voracious public. The result is and will be many books that should be not be written, published or read.

One of these is the product released late summer by the “anything-for-a-buck” John Wiley & Sons, to the discredit of its “author,” famed Wall Street denizen and critic, Henry Kaufman (The Road to Financial Reformation: Warnings, Consequences and Reform, 2009, 240 pp.).

I like Kaufman, nicknamed “Dr. Doom,” having read many of his writings. But this contains virtually no  current analysis of the present situation, instead repackaging old pieces in the veneer of current commentary.

A guess is editors at Wiley reached out to many potentially successful “authors” and that Kaufman, among them, said he could not write a fresh comprehensive account but would let them republish old stuff, stitched together in a new guise. Pity that many are spending $30 for 240 pages of text (double-spaced) that contains essentially nothing new—but many old pieces that enable the current packaging to say “I told you so.”   Wiley editors may think that a selling point, but I don’t (nor did The Economist’s reviewer).

The volume’s only important idea is this: business schools are culprits in the crisis for their excessive devotion, for forty years, to research and teaching of models of modern finance theory, and subordination or exclusion of research and teaching in economic and financial history. I endorse the rebuke, which I also repeatedly say includes the elevation of elegant finance by subordination of sturdy old-fashioned principles of accounting.

Following is a summary of this digest, which I discourage anyone to buy. Shoppers more astute than I may detect the absence of value from three squibs Wiley managed to include on the outside jacket: (a) journalist  Amity Shlaes says “buy it for Figure 12-1 alone;”* (b) former Senator Bill Bradley says Kaufman has “consistently and correctly warned us of the dangers;” and (c) former Fed Chair Paul Volcker notes the volume is “drawing in part on earlier writings” (an understatement and revealing to the discerning).

Part I’s Chapters, called Perspectives, read as old news, circa 1988, with Chapter 1 exuding angst about securities price volatility, globalization, portfolio insurance(!), and securitization; Chapter 2 underscoring the “value of history” in finance, routinely neglected by each new generation’s Wall Street denizens; and Chapter 3 reminding everyone that Adam Smith endorsed not only economic freedom and government reticence, but also warned of excessive financial concentration.

Part II, Chapters 4 through 7 expressly acknowledge their vintage: reprinting speeches or writings made in 1987, 1986, 1989 and 1981, respectively. These are portrayed under the heading, Neglected Early Warnings. These lament regulatory lag compared to financial innovation, excessive debt, and intensifying financial concentration.

Part III, The Bigness Dilemma, reviews old Mr. Kaufman works on concentration (Chapter 8); offers a trot (Chapter 9) on how every famous economist, except extremist on the left Karl Marx and extremist on the right Milton Friedman, prescribed government oversight of financial institutions; presents (in Chapter 10) a speech vintage circa 1987, revealingly entitled “Do We Still Need Glass-Steagall?”, endorsing that statute repealed a decade ago now; and culminating in a likewise long-rejected cautionary tale called “Banking and Commerce Should Not Merge” (Chapter 11).

Part IV, Financial Crises, has two Chapters: 12, called Postwar Financial Crises: 1966-2001, obviously written at least 8 years ago, culminating with the tech bubble burst, without even referencing Enron; and followed by what appear to be 14 pages of new writing, Chapter 13, called “The Great Financial Crisis of 2007-2009,” which is the first time, beginning at page 153 of 240 textual pages, that the author gives a current evaluation of the present situation.

It may be the intended heart of the book, wherein the author demonstrates how everything he has been warning and writing about for 30 years, digested in the previous 152 pages, was on the money. When drafting this review, I struggled to include a sentence here beginning with the phrase, “The Chapter’s interesting new insight is . . .” but found nothing to fill in that predicate. “I told you so” is not a reason to compile old writings into a new book.

Part V, Chapters 14-17, show the same motif of republishing old thoughts and writings, these appearing to date to about 1999. Chapter 14 repeats earlier chapters, reprinting yet earlier works, about the hazards of securitization and derivatives, and repeating old and earlier here-reprinted prescriptions for developments, like meeting globalization by creating a Board of Overseers of Major Institutions and Markets (here on p. 175 and earlier on p. 126). Chapter 15 is a vintage piece called “The Perils of Monetary Gradualism,” discussing problems using analysis that could have (and may have) been written two decades ago. Chapter 16 repeats the lecture on the value of history in finance from Chapter 2 (and many of Kaufman’s writings, those both reprinted here and not reprinted here). Chapter 17 registers a standard and oft-made objection to the lack of financial transparency in our system, starting with the Federal Reserve.

The final two Chapters, apparently written recently, add little value to a book priced at $30, offering 6 pages on interest rates (Chapter 18) that could have been a blog post and, in Chapter 19, a more essayistic and moderately interesting meditation on what the crisis implies for economics: less debt, an increased savings rate, less focus on finance theory’s risk models, increased financial concentration but that must be reversed, how the dollar will yet remain the global reserve currency, and how important reforming financial regulation is—primarily focused on reforming the Federal Reserve.

In short, everything in this book has been said before—not only by Mr. Kaufman, but by many others. I don’t fault Mr. Kaufman as much as I fault the editors at Wiley for what I consider an irresponsible publishing snare. It does suggest the editors at Wiley could have made a good living peddling sub-prime mortgage loans (a subject the volume does not analyze at all).

_____

*  The jacket squib’s reference to “Figure 12-1″ must be a mistake.  There is no Figure 12-1.  There is an Exhibit 12.1 but this is a quotidian list of important financial crises since 1945.  The reference probably was intended to Exhibit 8.3 or 8.4, showing massive concentration in US banks and massive leverage of those banks, respectively.  Chalk this up to sloppy work at Wiley, more interested in selling books  commercially than publishing them with integrity.

While I have been wrestling with these challenges, some of our academic colleagues, have I think, been meeting them – Richard Thompson Ford’s, The Race Card, Kenji Yoshino’s, Covering are two examples.  Most recently, and in some ways the most salient to my own aspirations, is Paul Butler’s recent book, Let’s Get Free:  A [...]]]> I am thrilled to be back at Concurring Opinion – thanks to Solangel, Dan and the other regulars for having me.   The timing of this visit is propitious for me – I am returning from a policy-focused (and surprisingly non-academic) sabbatical and I have been thinking a great deal about how best to stay engaged in policy/politics while also returning to academic culture.  The worlds of advocacy and academia are distinct, obviously, and reconciling them can be challenging.

While I have been wrestling with these challenges, some of our academic colleagues, have I think, been meeting them – Richard Thompson Ford’s, The Race Card, Kenji Yoshino’s, Covering are two examples.  Most recently, and in some ways the most salient to my own aspirations, is Paul Butler’s recent book, Let’s Get Free:  A Hip-Hop Theory of Justice. 

Butler’s book is extraordinary – he is a wonderful writer and tells a compelling story about his days as a prosecutor and his own improbable arrest and trial.   But while books by lawyers about their practice are often fun reads – and this one is – what is most impressive is that Butler’s book is a theory of criminal justice.  Butler is doing far more than telling a good story about lawyering.  He has taken his scholarly agenda (which as many of us know has landed him impressive placements in law reviews) and rendered it readable.  He weaves high level traditional theory, data, narrative, very candid self-critique, and insights from hip-hop.  It may seem like a gimmick to have a sentence containing Snoop Dogg and Jeremy Bentham – but in Butler’s book, it’s not.  He obviously knows both intimately and uses them to brilliant effect (and for the record, I don’t particularly like hip-hop). 

This book intends to engage people outside academia into joining a political/legal struggle for a dramatically different method of criminal justice - most notably for drug offenders.   The first half is a critique of our current system – from Butler’s perspective as an insider resulting from his years as a federal prosecutor.  The second half is his alternative theory of criminal justice – drawn from the outsider’s perspective of “the hip hop nation.”   The first half is fabulous – primarily because Butler is so brutally honest about his own experience and his own complicity in what he now considers to be a failed system. 

 I admit to being more skeptical when I began the second half – which presents his “hip hop” theory of justice.  As a teen ager in the 80s, I danced to “Rapper’s Delight,” too, but I stick with late Temptations rather than many of the other artists he relies upon.    But after reading the book through, I think the idea of bringing insights about crime and punishment from this particular community has enormous utility.  What ultimately persuaded me was Butler’s argument (relying upon Rawls) that the people best situated to devise a system of punishment are those who aren’t sure how they will fare under the system.  And Butler is exactly right that those who make up “the hip hop nation” are “both the most likely to be arrested and incarcerated for crimes and  the most likely to be victims of crimes.”  (131).  Therefore, their ideas about who should be punished and how should be heard.

I don’t necessarily adhere to all of Butler’s arguments, but I deeply admire the book – and the method of bringing his academic ideas into popular culture – while also relying upon one particular form of popular culture’s own ideas.   I would love to hear about other examples of engaged – and engaging – scholarship!

First, I agree with Barry that constitutional scholars should spend more time worrying about whether the Court can stand up to an aroused popular will.  There are, of course, instances where the Justices have defied majority opinion, but those cases get lots of attention as opposed to the situations where the Court folds like a cheap tent and upholds popular curbs on civil [...]]]> I recently read Barry Friedman’s book on judicial review, which I would definitely recommend for anyone who wants to learn about the evolution of the Supreme Court.  While the history that Barry covers is useful in and of itself (and I’ll need to grapple with some of his points as I revise my book), there are some larger themes that are worth discussing.

First, I agree with Barry that constitutional scholars should spend more time worrying about whether the Court can stand up to an aroused popular will.  There are, of course, instances where the Justices have defied majority opinion, but those cases get lots of attention as opposed to the situations where the Court folds like a cheap tent and upholds popular curbs on civil liberties when they should know better.

Second, I am not convinced by the book’s happy ending, which more or less says that “Well, now we’ve solved our problems with judicial review and reached a stable equilibrium.”  People have said that in the past, then the next crisis comes.  Indeed, a collision between President Obama and the Roberts Court may test this conclusion in the next few years.

Third, I’m left wondering how federalism fits into Barry’s story.  Many scholars have commented that the Court often suppresses outliers (i.e. those few states that reject a national consensus about something) in its cases.  That is consistent with the thought that the Court conforms to public opinion.  But do regional or states-rights’ interests (the laboratories of democracy) have their own claim to legitimacy?  To what extent should the court be countermajoritarian by refusing to strike down state practices that deviate from constitutional norms?

Finally, there is a Keynesian “in the long run we’re all dead” problem in saying that in the long run the Court is disciplined by or responsive to public opinion.  Many of the constitutional crises described in the book were painful and costly.  They are probably unavoidable and even beneficial in that they clarify the popular decision that finally emerges.  But I’m not sure that’s so comforting when the Court and the political branches are at loggerheads.

Understanding Privacy offers a comprehensive overview of the many difficulties involved in discussions of privacy. Drawing from a broad array of interdisciplinary sources, I set forth a framework for understanding privacy that provides clear practical guidance for engaging with privacy issues.

Brian Leiter notes, in the title of his post about Levinson’s article, that “academic law needs more fora for serious book reviews.”

Beyond law reviews, the number of book reviews in newspapers is rapidly diminishing.

This is [...]]]> Sandy Levinson has a thoughtful new essay lamenting the dwindling number of book reviews of books about the law — The Vanishing Book Review in Student Edited Law Reviews and Potential Responses, 87 Tex. L. Rev. 1205 (2009).  He discusses how the Michigan Law Review used to run 30 to 40 book reviews in its book review issue but now is running only about 10 to 15. He notes that among the top 20 law reviews, in 1987-88, they published about 125 reviews; in 2007-08, they published only 42 reviews.

Brian Leiter notes, in the title of his post about Levinson’s article, that “academic law needs more fora for serious book reviews.”

Beyond law reviews, the number of book reviews in newspapers is rapidly diminishing.

This is why we’re starting a new project at Concurring Opinions — we’ll serve as a forum for book reviews.

We will accept submissions from our readers — law professors, lawyers, law students, and academics in other fields are welcome to submit reviews.

The reviews we envision would be approximately the length of a New York Times book review — somewhere between 500 to 2000 words.

We will try to accept as many reviews as we can, but we will exercise editorial discretion if we think a review isn’t appropriate for our blog.  We’re aiming for serious reviews.

If you’re interested in writing a book review for us, we recommend that you first email us with a brief description of what book you’d like to review and your background, as we don’t want you to go through the work of writing a review only for us to think it doesn’t fit with our blog.  Emailing us in advance won’t guarantee acceptance, but we would hope to give you a good indication of whether we’d be interested in your review.

We believe that there’s a need for serious yet short book reviews, ones that aren’t as long as those published in law reviews.  That’s why we’re starting this project.  We expect it to be ongoing, so if you’ve read a law-related book recently and want a forum to publish your views about it, please think about doing a review for us.

If you publish a book review here, you keep copyright in your work, so you can use it, publish it, and disseminate it later in whatever way you desire.

So please email us if you’re interested.

First, JPM partners with Barnes & Noble so books bought there using the JPM Summer Reading site generate commissions that JPM donates to Room to Read, the nonprofit dedicated to making education and books available to some 120 million children worldwide not currently enrolled in schools.

Second, the list always works for me. It is produced after a global review committee culls through some 500 books each year looking for those most likely to “capture interest, spark imagination and take readers to worlds we had not known.”   Consider the [...]]]> There’s still enough summer left to consult the numerous summer reading lists that suggest the most interesting titles. My favorite annual list for the past ten years is the one compiled by JP Morgan.  This is my favorite list for three reasons.

First, JPM partners with Barnes & Noble so books bought there using the JPM Summer Reading site generate commissions that JPM donates to Room to Read, the nonprofit dedicated to making education and books available to some 120 million children worldwide not currently enrolled in schools.

Second, the list always works for me. It is produced after a global review committee culls through some 500 books each year looking for those most likely to “capture interest, spark imagination and take readers to worlds we had not known.”   Consider the wide variety of stimulating books chosen this year.

This year’s book list is led by Michael Lewis (Panic) and Malcolm Gladwell (Outliers) along with illuminating works on philanthropy (Lisa Endlich, Be the Change), agriculture (by Rowan Jacobsen), the generational digital divide (by John Palfrey and Uris Gasser), Twitter (Joel Comm and Ken Burge), Cambridge crew (by Mark De Rond and Steve Sir Regrave), contemporary cooking (of the local, sustainable sort, by chef David Tanis), Clicquot champagne (by Tilar Mazzeo) and architecture (of Grosvenor Atterbury, by Peter Pennoyer and Anne Walker).

Third, a point of vanity and no doubt a reason, but I hope the least important, one of my books made the list in 2001 and, this year, in a 10-year retrospective featuring one author from each year’s list, I was chosen to write my reflections on the art of writing.   I was flattered to be among the following group of authors chosen to participate in this retrospective:

Mohamed El-Arian, When Markets Collide (2008)

John Wood, Leaving Microsoft to Change the World (2007)

George Taber, The Judgment of Paris (2006, on the great battle between California and French wines at a tasting in 1976)

Tom Friedman, The World is Flat (2005, an amazingly and characteristically insightful work)

Julie Salamon, Rambam’s Ladder (2004) (on generosity and giving)

Hersh Shefrin, Beyond Greed and Fear (2003, a personal favorite on behavioral finance)

Jim Collins, Good to Great (2002, a runway bestseller still selling well)

Lawrence Cunningham, How to Think Like Benjamin Graham and Invest Like Warren Buffett (2001)

Malcolm Gladwell, The Tipping Point (2000)

Kate Kelly is a gifted young journalist who prepared useful accounts of the federally-orchestrated and partially-financed fire sale of Bear Stearns to JP Morgan published in The Wall Street Journal two months afterwards. Revised versions of the reporting now appear in a short book, Street Fighters, of about 64,000 words, consisting of a well-written chronology of events and personalities whisking through the four-day weekend leading to Bear’s death. The book is a well-told chronology, not having a theme or point of view, other than a preface saying the [...]]]> Over at Conglomerate, Gordon Smith is hosting a book club discussion of Kate Kelly, Street Fighters: The Last 72 Hours of Beart Stearns, The Toughest Firm on Wall Street (Portfolio 2009), to which my following review is a contribution.

Kate Kelly is a gifted young journalist who prepared useful accounts of the federally-orchestrated and partially-financed fire sale of Bear Stearns to JP Morgan published in The Wall Street Journal two months afterwards. Revised versions of the reporting now appear in a short book, Street Fighters, of about 64,000 words, consisting of a well-written chronology of events and personalities whisking through the four-day weekend leading to Bear’s death.
The book is a well-told chronology, not having a theme or point of view, other than a preface saying the book’s purpose is to help people understand the “brutal impact” an enterprise’s collapse has on “workers.” I only detect a slight thematic whiff of that in the book and don’t see why Bear is a peculiarly good firm to illustrate the “brutal impact” notion.
Instead, I find in the chronology a few points of greater interest. It is difficult to be sure about the points because the reader must wade through haphazard minute-by-minute chaos of that weekend to determine what the facts add up to. Yet I discern several points relevant to people interested in economic crisis, government’s response and corporate governance during crisis.
The most important is the forceful, directive, role the US Treasury Department, especially then Secretary Henry Paulson and now Secretary Tim Geithner, played commanding, czar-like, the termination of Bear and sale of it to JP Morgan, in a weekend. They dictated an extraordinarily low price, $2 per share, and played some directive role in identifying and securing JP Morgan as buyer, instead of other potential suitors. The story dramatizes how Paulson called the shots:
• Paulson told US President, George Bush, to remove a line from a pending speech disparaging bailouts, as Bush intended, because his administration was about to orchestrate one.
• Paulson told Bear CEO, Alan Schwartz, who Paulson perceived to be “in denial,” that its receipt earlier that week of federal financial support meant Bear did not so much get a life line as become an instrument of the government.
• When JP Morgan CEO, Jamie Dimon, expressed difficulty accepting the deal at the original $8-12 level, Paulson told him he should pay less, saying “I can’t see why they’re getting anything. I could see something nominal, like one or two dollars per share.”
That’s the basis on which the forced deal was formally approved, under a façade of regularity.

Bear’s board, nominally responsible for protecting Bear’s shareholders, lenders and workers, appears to have done a reasonably competent job during the chronicled weekend. It is difficult to be certain, however, because reports of meetings, discussion and decisions are given chronologically, not analytically. So it is difficult to gain a comprehensive sense of what they knew or what they did.

But there is no question that, when they received JP’s Paulson-endorsed bid of $2 per share, they and their outside counsel (Sullivan & Cromwell) and investment bank (Lazard ) were astounded, outraged, furious, and sickened-to use words from this book. They were convinced that the decision emanated from Paulson and Geithner, was political and left them no choice.

Riveting as these details are, the chronology stops before the story ends. Its Epilogue notes, but does not explore, how that $2 price was quintupled in further negotiations conducted by Bear and JP Morgan in the ensuing two weeks-after Paulson’s federal heavy-hand abated, his main objective apparently having been reached, and he having moved on to other problems. It is important to learn more about what happened in those two weeks to shed light on Paulson’s and Geithner’s exact roles.

Illumination of such matters, at Bear and other firms, will be vital as federal investigators continue to probe how heavy-handed Treasury (both Paulson and Geithner) and the Federal Reserve have been in their bailout quests. The seriousness of these issues is epitomized by ongoing Senate hearings into whether Paulson, Geithner and Fed Chair Ben Bernanke instructed or induced Bank of America to violate federal securities laws when they pressured it to take over Merrill Lynch, in a pattern analogous to that of JP Morgan taking over Bear.

References spread throughout the chronology note about six parties other than JP who might have bid but did not. As with the rest of the book, these are scattered and mentioned more in passing rather than collected or analyzed. It is rarely clear who suggested what other bidder, what steps were taken, or how far most got. So it is not possible to assess with confidence whether Bear’s board and Lazard conducted reasonably satisfactory process to determine that JP’s $2 per share bid really was the best alternative that weekend. Even so, enough evidence is scattered around to support that inference, at least as a journalistic matter.

But it does not matter: Paulson and Geithner appear to have left no one any choice. Notably, Paulson himself had contacted some potential bidders, which is very odd, and the only other bidder who actually made a bid, J.C. Flowers, was effectively rejected, not so much by Bear’s board or its advisors, as by Paulson and Geithner.

Kelly’s “Street Fighers” has a good dramatic quality, which will help sell copies. The story builds momentum and tension to the ultimate decision Sunday night. This creates empathy and understanding for the stakes and plight of the decision makers, even among those pressuring the deal (government), and certaintly those reluctantly accepting it (Bear’s board and top managers and even JP) or coordinating it (advisors from Lazard, S&C, Skadden, Cadwalader) and, above all, those affected, despising the deal, especially Bear employees and shareholders.

Government regulators come off as least sympathetic. Paulson and Geithner are concerned about the system and don’t really care about Bear in particular; others have the opposite functional priority, caring mostly about Bear, not the system. Kelly’s “brutal impact on workers” perspective does emerge here, feeling for particular individuals at this firm, not abstract notions of systemic stability.

This book will be of use to researchers trying to piece together facts that occurred during Bear’s final weekend. But, as the foregoing suggests, the fact-filled book gives no synthesis or diagnosis, and readers must draw their own conclusions. The book will certainly be of general reading interest to people fascinated by investment banking and deal-making cultures-a large number, judging by book sales so far.

Kelly has a knack for good writing of complex business, financial and legal matters. She likely will join a distinguished line of Journal reporters writing business best sellers. Count on her next book to be more confident and bolder in setting a more direct thesis.

It took only two hours to read Richard Posner’s breezy, odd and disjointed new book,  A Failure of Capitalism.  This awkwardly compact volume (346 pages in a trim size of 5×7) reassembles meditations first surfaced on his blog. It describes well-known points about the global financial crisis and offers little new. It contains a few statements commentators see as startling rebukes to free market capitalism unlikely from this conservative pioneer of law and economics (see, e.g., Solow, NYT, WaPo). Underappreciated in the excitement capitalism’s critics see in a devotee’s rebuke are insights on pragmatism, greater hallmarks of Posner’s work.

Although the book is disjointed, repetitious and disorganized, one may discern two themes, one I share and one I don’t.  The one I share is that pragmatism is the way to approach financial [...]]]>

It took only two hours to read Richard Posner’s breezy, odd and disjointed new book,  A Failure of Capitalism.  This awkwardly compact volume (346 pages in a trim size of 5×7) reassembles meditations first surfaced on his blog. It describes well-known points about the global financial crisis and offers little new. It contains a few statements commentators see as startling rebukes to free market capitalism unlikely from this conservative pioneer of law and economics (see, e.g., Solow, NYT, WaPo). Underappreciated in the excitement capitalism’s critics see in a devotee’s rebuke are insights on pragmatism, greater hallmarks of Posner’s work.

Although the book is disjointed, repetitious and disorganized, one may discern two themes, one I share and one I don’t.  The one I share is that pragmatism is the way to approach financial policy. The diagnostic take from the financial crisis is subordination of pragmatism to ideology. This is due to free-market ideologues who deregulated too much by over-confidence in market capacity for self-correction. But this is no endorsement of extensive government intervention into the economy that equally ideological opponents of free markets may equally culpably prescribe.

Second, primary responsibility for the global financial crisis is with markets and market participants.  Although I share this viewpoint, I part company when Posner argues that they did not act irrationally. He says there is no place in critique for insights from behavioral economics concerning limited cognition or biases. Government is to blame only in failing to protect against dangers that arise from market failure and inept responses once crises manifested, Posner argues.  He says the principal justification for government regulation of economic activity is to prevent disruptions like recessions from turning into crises like depressions.

In short, this is rightly not a call for ideologically-driven government intervention on one side or ideologically-based laissez faire non-intervention on the other. It is a clarion call to pragmatic balancing that allows markets vast space for self-operation with government oversight and a regulatory system available to avert excesses when necessary to prevent challenges from becoming crises. The following review gives chapter-by-chapter accounts of this little book’s contents, including notes on the book’s awkward style in content, writing, documentation and publishing.

 My chapter-by-chapter summary renames chapters for clarity, as follows, giving page length in parentheses. 

1. Proximate Causes (40). This Chapter reviews what is well-known, citing as proximate causes of the global financial crisis decline in personal savings and risky lending following from overzealous deregulation.

2. Banking Crisis (34). This Chapter also reviews what is well-known, zeroing in on banking aspects of the crisis. It indicts deregulation and reviews proliferation of securitization and credit default swaps. It explains how difficulty valuing these limited market capacity to self correct and government ability to diagnose and respond.

3. Underlying Causes (42). This Chapter likewise reviews what is well-known, although Posner argues that deeper causes are consistent with rational economic actors making rational decisions. He repeatedly emphasizes this leaves no room in diagnosis for contributions from behavioral economics concerning psychology, cognition, emotion or character flaws.  The argument is strained and the repetition reinforces the sense of its weakness.  Behavioral finance has an explanatory role in market operations.

4. Why Not Anticipated (31). This Chapter, consciously and admittedly repeating much of the previous three, also reviews what is well-known: warning signals existed and some people sounded alarm bells. It tries, unconvincingly, to explain why it is rational for people to overlook such warnings and Cassandras sounding them.

5. Government Response (72). This Chapter, the longest and most disorganized, is a rambling selective trot through aspects of government’s response to the crisis. It gives disproportionate attention to bailout of the automotive sector, providing limited review of bailouts of banking. It gives considerable attention to central bank policy, debates over monetary versus fiscal policy as responses to national economic adversity and meditates on competing implications of deficit spending and stimulus.

6. Silver Linings (14). This odd Chapter identifies silver linings Posner perceives amid economic adversity, the most important of which, to me, is appreciating need to balance faith in free markets and government intervention, although this insight is buried in the middle of an essay also listing: promoting efforts to moderate business cycles, renewing interest in efficiency, learning lessons (like being averse to privatizing social security), reallocating brain power from financial services to scientific research and a wake-up call to limitations on thought in the economics profession.

7. Lessons on Markets and Government (18). This Chapter, repeating much in earlier ones, emphasizes government does not bear primary responsibility for causing the crisis. Blame goes primarily to “normal business activity in a laissez-faire economic regime.” But, once capitalism failed, government failed to intervene correctly to reduce its severity and some responses increased risks. Pages are devoted to the fair indicting of the SEC’s performance under Chair Chris Cox.  Posner prescribes better government regulation as cure. Anticipating points a later chapter makes, however, no major changes should be made until after the crisis has been resolved–a prudent caution consistent with that David Zaring and I make.

8. Economists Failed (17). This Chapter shames the economics profession for failure to predict or detect the crisis, blaming this on “overinvestment by economists, policymakers, and business leaders in a free-market ideology that opposes aggressive governmental intervention.”   Critique consists of sweeping generalizations rather than nuanced evaluation.

9. Blame Apportionment (19). This Chapter, amplifying the theme giving markets primary blame for causing the crisis and government secondary blame for enabling or not curtailing it, concentrates on why government gets some blame. This is a stinging rebuke to the second Bush administration, calling the SEC’s Cox “symptomatic” of a disastrous “doctrinaire free-market, pro-business, anti-regulatory ideology.”

10. Next Steps (16). This Chapter notes the fragmented US regulatory structure and says rationalizing it may be appealing. It identifies a few specific possible reforms like leverage caps, credit rating fees, reserve requirements and hedge fund disclosure. But, above all it says “now is not the time” to reorganize or regulate. It is too complex to make large scale changes while crisis continues.  Again, David Zaring and I elaborate the case for this perspective and provide a more complete account of this Chapter’s breezy one.

11. Pragmatism over Ideology (11). This is the book’s strongest Chapter, a clarion cry for pragmatism. It rebukes conservatives and liberals alike for inflexible, rigid commitment to cause and ideology. Conservatives are embarrassed by Bush’s failures, including “overestimation of the efficiency of unregulated markets.” But opponents show excessive belief in opposite stances that are equally naïve. Neither can be proven correct. The “space for pragmatic, apolitical, non-ideological solutions to economic crises can be enlarged,” Posner says, adding “We should embrace “the spirit of pragmatism rather than of ideology.” I concur.

On style, Posner calls this little book a “high-altitude survey.” An equally valid description might be stream of consciousness, a quality that pervades much of the book, manifested in weak organization, repetition, long sentences, few topic sentences, no chapter overviews by introductory paragraphs, and little evident editorial work from the publisher.

Posner says he’s avoiding jargon but doesn’t always (”Bayesian decision theory” p. 135) or does so unhelpfully (like substituting tiers for tranches in describing structured financial products, p. 50). He uses words, worse than jargon, few are likely to know (a “faitnéant SEC” p. 239 and the “amour propre” of a legislative body, p. 240).

Posner acknowledges he’s not using footnotes. But they would help. Numerous examples of needed references appear (e.g., p. 135 “I have elsewhere described President Clinton as the consolidator of the Reagan revolution” without citation; “An economic-legal team at Columbia University has proposed that . . . p. 215 without citation; and “Warren Buffett is reported to have said . . . ” p. 221 without citation–I confess, he could have cited my book for this).

As for the book’s publisher (Harvard), the book is awkwardly printed. It is in 5×7 trim, a small area, spanning 330 pages of text, each with about 26 lines averaging about 10 words per line. So it is more than an inch thick. These are uncomfortable proportions for a reader to handle the book.  The index is weak.

The book was written and produced quickly, drawing on blog posts, and it shows. There are some good insights and phrases.  But it is more of a draft than a book.  Compared to Posner’s other books, this very likely is the weakest (it certainly is not remotely in the same league as the other Posner books I’ve read).

These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the [...]]]> Both the New York Times and the Washington Post this week had stories on a forthcoming DOJ Report expected to slam several of the Bush Administration lawyers’ for ethical lapses in preparing various memos justifying questionable techniques in the War on Terror. Both articles also addressed calls for disbarring those lawyers, as well as for impeaching Jay Bybee, who is now a federal judge.

These stories stress the importance of government lawyers’ advisory role and start from the assumption that there is a sort of “truth” about what the law is on a particular matter. That need not mean that there is only one “right” answer, but it does mean that some answers are outside the realm of the plausible; that even within the plausible, the case for some answers is far weaker than for others; and that there are widely understood standards for what is “good lawyering,” including adequate research, factual investigation, consideration of opposing arguments, and sensitivity to the practical effects of government policy.

The articles also assume that government lawyers as advisors have an obligation to tell their client things he or she might not care to know, to act as the government’s conscience, and to be attentive to history and constitutional values as much as case law precedent. I agree with these assumptions and write only to direct the reader to two new books with much to say about these matters — books worthy of careful study and debate by all who are interested, but particularly by those who are or hope to be government lawyers serving in advisory roles. Those books are Peter M. Shane’s Madison’s Nightmare: How Executive Power Threatens American Democracy and Jefferson H. Powell’s Constitutional Conscience: The Moral Dimension of Judicial Decision. My post today will be brief and focus on Shane’s book. A future post will focus on Powell’s book.

Shane starts by distinguishing between “presidentialism” and “pluralism.” “Presidentialism” embraces the idea of a unitary executive with vast powers to operate unchecked by other branches of government, often acting in secrecy, and free of the need to consult with other branches. “Pluralism,” on the other hand, understands the notion of interacting branches checking and consulting each other in setting policy, doing so as not only a constitutional command but also as a prerequisite to setting sound policy. It is Shane’s position that each of these attitudes is supported by a matching culture and that government lawyers have a critical role to play in sustaining or contesting those cultures.

Shane is no fan of presidentialism, which he sees as depending upon a culture of isolation and arrogance that promotes bad policy and, by subsituting executive preferences for legal mandates (because anything the executive does is almost always seen as within its power, therefore ”legal,” ending any real rule-like limits on executive power), presidentialism makes a joke out of the “rule of law.” Bad policy results in part because “[f]acts and opinions are always filtered through officials’ ideological prisms, prisms that shape how facts are weighed and options comprehended.” Without a counterweight to ideology, important flaws in information-gathering and reasoning are missed. Pluralism, by contrast, helps to minimize ideological distortion by compelling executive decisionmakers seriously to consider opposing views, while engaging in dialogue with other institutional actors.

Lawyers are essential to standing in the way of a creeping culture of presidentialism. That culture, argues Shane, “bends the light of the law so that nothing is seen other than the prerogatives of the sitting chief executive.” This light-bending distorts the lawyer’s vision not only of the law’s scope but of the process by which quality lawyers determine legal “meaning.” Moreover, most executive decisions are too low-level or visible to capture the attention of congressional oversight committees or of the courts, even though cumulatively these decisions may do much damage. The government lawyer is thus often the only voice of conscience available to give sound legal advice and check foolishness and overreaching.

Shane traces the process of legal decisionmaking and the outcomes of it concerning two major issues: warrantless electronic surveillance and the treatment of enemy combatants. In a convincing display, Shane condemns the lawyering involved as steeped in presidentialism. He concludes that two factors explain this poor lawyering by otherwise talented individuals. First, the legal and broader culture of the executive must have sent the message to the lawyers that they had no real choice but to approve what their client sought. Second, they worked in an atmosphere in which they would face scorn for reluctance to express any argument, no matter how minimally plausible, supporting their client’s preferred conclusion. That might be acceptable conduct for an advocate, says Shane, but it is reprehensible for an advisor.

To avoid such “ethically blinkered” results, insists Shane, government lawyers “must remember that their ‘client’ is the American people, and not the emphemeral roster of incumbent federal office holders.” Lawyer-advisors must give conscientious opinions not only about outcomes but about the proper procedures clients must follow before making policy choices. The lawyer is neither a potted plant nor a lackey. And a lawyer without a spine is really no lawyer at all.

Here’s the abstract of my review:

A short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy” (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the “Victorian Compromise,” a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. “Dark Secrets” undeniably advances our understanding of both the genesis of [...]]]> I recently uploaded to SSRN a short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety and Privacy (Stanford 2007).  No book is perfect, but this one is probably the best book on the history of privacy law that I have read.

Here’s the abstract of my review:

A short review essay of Lawrence Friedman’s “Guarding Life’s Dark Secrets: Legal and Social Controls over Reputation, Propriety, and Privacy” (Stanford Press 2007). The essay argues that Friedman tells a nuanced and compelling story of the rise and fall of the “Victorian Compromise,” a series of interlocking legal doctrines protecting the reputations of elites around the turn of the twentieth century. “Dark Secrets” undeniably advances our understanding of both the genesis of privacy law and the relationships between law and culture in the Gilded Age. As a work of legal history, it is an instant classic – a must-read for anyone interested in privacy law. But although Dark Secrets is first-rate legal history, it is less successful in its latter chapters when Friedman shifts his focus from the past to the present. The limits of Friedman’s social criticism raise important questions about the ability of history alone to provide answers to social problems in our modern, networked information society.

The book is available free for download under a Creative Commons license. One third of the essays are now posted online. The rest will become available in two more stages — on April 22th and May 6th. This is the first book to be published by Oxford University Press under a Creative Commons license.

The book is available on Amazon.com or on [...]]]> There’s a terrific new book of essays about privacy out from Oxford University Press — LESSONS FROM THE IDENTITY TRAIL: ANONYMITY, PRIVACY AND IDENTITY IN A NETWORKED SOCIETY (Oxford University Press 2009). It’s edited by Ian Kerr, Valerie Steeves, and Carole Lucock. The essays are fascinating and are written by a number of very prominent privacy scholars. Highly recommended!

The book is available free for download under a Creative Commons license. One third of the essays are now posted online. The rest will become available in two more stages — on April 22th and May 6th. This is the first book to be published by Oxford University Press under a Creative Commons license.

The book is available on Amazon.com or on our special Concurring Opinions Oxford University Press promo page for 20% off.

Here’s the table of contents:

I. PRIVACY

Introduction to Part I

Chapter 1. Soft Surveillance, Hard Consent: The Law and Psychology of Engineering Consent

by IAN KERR, JENNIFER BARRIGAR, JACQUELYN BURKELL, AND KATIE BLACK

Chapter 2. Approaches to Consent in Canadian Data Protection Law

by PHILIPPA LAWSON AND MARY O’DONOGHUE

Chapter 3. Learning from Data Protection Law at the Nexus of Copyright and Privacy

by ALEX CAMERON

Chapter 4. A Heuristics Approach to Understanding Privacy-Protecting Behaviors in Digital Social Environments

by ROBERT CAREY AND JACQUELYN BURKELL

Chapter 5. Ubiquitous Computing and Spatial Privacy

by ANNE UTECK

Chapter 6. Core Privacy: A Problem for Predictive Data Mining

by JASON MILLAR

Chapter 7. Privacy Versus National Security: Clarifying the Trade-Off

by JENNIFER CHANDLER

Chapter 8. Privacy’s Second Home: Building a New Home for Privacy Under Section 15 of the Charter

by DAPHNE GILBERT

Chapter 9. What Have You Done for Me Lately? Reflections on Redeeming Privacy for Battered Women

by JENA MCGILL

Chapter 10. Genetic Technologies and Medicine: Privacy, Identity, and Informed Consent

by MARSHA HANEN

Chapter 11. Reclaiming the Social Value of Privacy

by VALERIE STEEVES

II. IDENTITY

Introduction to Part II

Chapter 12. A Conceptual Analysis of Identity

by STEVEN DAVIS

Chapter 13. Identity: Difference and Categorization

by CHARLES D. RAAB

Chapter 14. Identity Cards and Identity Romanticism

by A. MICHAEL FROOMKIN

Chapter 15. What’s in a Name? Who Benefits from the Publication Ban in Sexual Assault Trials?

by JANE DOE

Chapter 16. Life in the Fish Bowl: Feminist Interrogations of Webcamming

by JANE BAILEY

Chapter 17. Ubiquitous Computing, Spatiality, and the Construction of Identity: Directions for Policy Response

by DAVID J. PHILLIPS

Chapter 18. Dignity and Selective Self-Presentation

by DAVID MATHESON

Chapter 19. The Internet of People? Reflections on the Future Regulation of Human-Implantable Radio Frequency Identification

by IAN KERR

Chapter 20. Using Biometrics to Revisualize the Canada–U.S. Border

by SHOSHANA MAGNET

Chapter 21. Soul Train: The New Surveillance in Popular Music

by GARY T. MARX

Chapter 22. Exit Node Repudiation for Anonymity Networks

by JEREMY CLARK, PHILIPPE GAUVIN, AND CARLISLE ADAMS

Chapter 23. TrackMeNot: Resisting Surveillance in Web Search

by DANIEL C. HOWE AND HELEN NISSENBAUM

III. ANONYMITY

Introduction to Part III 63.60 Kb

Chapter 24. Anonymity and the Law in the United States

by A. MICHAEL FROOMKIN

Chapter 25. Anonymity and the Law in Canada

by CAROLE LUCOCK AND KATIE BLACK

Chapter 26. Anonymity and the Law in the United Kingdom

by IAN LLOYD

Chapter 27. Anonymity and the Law in the Netherlands

by SIMONE VAN DER HOF, BERT JAAP KOOPS, AND RONALD LEENES

Chapter 28. Anonymity and the Law in Italy

by GIUSELLA FINOCCHIARO

SOLOVE: What motivated you to write about the issues in your book?

ZICK: I first became interested in the subject of spatial restrictions on speech when I witnessed how protesters and other public speakers were treated in New York City (and elsewhere), particularly after the terrorist attacks of September 11, 2001. [...]]]> Professor Timothy Zick (William & Mary College of Law) has written a superb new book, Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge, 2008). Tim has guest blogged with us on a few occasions, and his book raises interesting and important free speech issues involving speech in various places where people commonly gather. I asked Tim a few questions about his new book, and his answers are below.

SOLOVE: What motivated you to write about the issues in your book?

ZICK: I first became interested in the subject of spatial restrictions on speech when I witnessed how protesters and other public speakers were treated in New York City (and elsewhere), particularly after the terrorist attacks of September 11, 2001. Of course, limits on public expression preceded these events. But the trend toward regulating public dissent and other forms of public expression through control over place increased markedly thereafter. Of the many limits placed on public expression, it was the “speech cage” erected at the 2004 Democratic National Convention in Boston that really captured my attention. A district court judge described the structure, which was constructed as a purported “demonstration zone,” as an “internment camp” and “an affront to the First Amendment.” As did others, I found it remarkable that this repressive tactic was being used to regulate public expression in the United States. As or even more remarkable to me was that the courts held the Boston speech cage satisfied First Amendment standards.

SOLOVE: What’s the central idea in your book?

ZICK: I have always felt that the “public forum” and other First Amendment doctrines relating to place fail to appreciate some fundamental aspects of place itself, and of the intersection of place and expression. Anthropologists, geographers, philosophers, and other scholars who are closely attentive to the concept of place have demonstrated how important spatiality is to human interaction and communication, as well as to the state’s control over public contention. Through this lens, I posit in the book that place is not merely a property or “forum.” In many cases, places are distinctly expressive. They form part of an “expressive topography” – a system of places in which a variety of speech activities and contests occur. For example, beggars, proselytizers, and their potential audiences interact in embodied places (personal space); protesters often target specific contested places; and large rallies are held in inscribed places like the National Mall. Speech and spatiality intersect in unique ways in each of these and other spatial types identified in the book. For a variety of reasons, including the increasing privatization of public space, legal restrictions on public speech and assembly, and repressive forms of public policing, our expressive topography has been steadily eroding. This has negatively affected nearly every corner of the expressive topography, from public parks to college and university campuses.

SOLOVE: You write about the diminishing public space for speech. In an age where people increasingly spend their time at home in front of their computers rather than milling about on the public square, what’s the significance of the increasing loss of public space for speech?

ZICK: Well, one might say, so what? In the digital age, many speakers and audiences have migrated to the virtual realm. That’s certainly true. But more traditional places and methods of public expression remain critical to our expressive culture. One of the most fascinating aspects of my research was the discovery that despite longstanding criticisms regarding the efficacy and salience of public protest and other forms of public expression, people still gather in public places – sometimes in great numbers – to demonstrate and communicate. Material and “cyber” places serve very distinct participatory functions. A self-governing society needs both types of places. Given their lower costs and broader reach, cyber places are ideal for networking, broadcasting, and shaping public opinion. With their visibility and physicality, material public places offer distinct advantages in terms of exerting public pressure on citizens and officials, countering the effects of citizen “narrowcasting,” and creating solidarity.

SOLOVE: Should the law preserve free speech rights on private property? If so, how and when?

ZICK: If the expressive topography is in fact eroding, and if we ought to be concerned about that, what if anything can be done? I offer several proposals and suggestions, each geared to the particular type of place on the topography and the “gap” that needs to be filled. In very brief terms, new attitudes and behaviors must be encouraged, different landscapes and architectures must be envisioned and constructed, and legal doctrines must be revisited and in some cases revised.

Perhaps the most controversial of the specific proposals in the book relate to the treatment of “private” property. The contemporary expressive topography contains far too many places in which audiences are “protected” from speakers – in shopping malls, airports, subdivisions, gated communities, recreational areas, privatized urban tunnels and skyways, and sprawling college and university campuses. Much of this erosion has occurred through the “demotion” of spaces that once were public forums and the failure to preserve expressive liberties in modern simulated downtowns and public squares. I propose preserving some space for expression in these and other modern spaces, through a combination of reliance on state constitutional provisions and property doctrines, imposition of development conditions, urban and suburban planning, community activism, and more exacting judicial review of forum demotions.

SOLOVE: Tim’s book is Speech Out of Doors: Preserving First Amendment Liberties in Public Places (Cambridge, 2008). It is available in paperback and is priced very reasonably. Pick up your copy today!

Colin J. Bennett, The Privacy Advocates: Resisting the Spread of Surveillance (MIT Press 2008)

A very informative account of those who work in the privacy advocacy community.

Anupam Chander, Lauren Gelman, and Margaret Jane Radin (editors), Securing Privacy in the Internet Age (Stanford University Press 2008)

A great collection of essays, from a symposium at Stanford Law School. A bit dated — the symposium was held in 2003 — but still worth reading. I have a piece in the book discussing data security vulnerabilities and the law — originally penned back in 2003, so I can [...]]]> Here’s a list of notable books about information privacy published in 2008. Pick up a few to help stimulate the economy, save the publishing business, and learn more about privacy:

Colin J. Bennett, The Privacy Advocates: Resisting the Spread of Surveillance (MIT Press 2008)

A very informative account of those who work in the privacy advocacy community.

Anupam Chander, Lauren Gelman, and Margaret Jane Radin (editors), Securing Privacy in the Internet Age (Stanford University Press 2008)

A great collection of essays, from a symposium at Stanford Law School. A bit dated — the symposium was held in 2003 — but still worth reading. I have a piece in the book discussing data security vulnerabilities and the law — originally penned back in 2003, so I can say “told ya so!”

William Cuddihy, The Fourth Amendment: Origins and Original Meaning 602-1791 (Oxford University Press 2008)

The best and most comprehensive intellectual history of the Fourth Amendment ever written.

Cory Doctorow, Little Brother (Tor Teen 2008)

A contemporary version of Orwell’s 1984 — thought-provoking and engaging fiction, as usual from Doctorow.

Laura Donohue, The Cost of Counterterrorism: Power, Politics, and Liberty (Cambridge University Press 2008)

A detailed and compelling history of how 9/11 altered privacy and surveillance in the US and UK.

Sam Gosling, Snoop: What Your Stuff Says About You (Basic Books 2008)

A fascinating discussion of current psychological research about what the products we buy reveal about us.

Mohammad Hashim Kamali, The Right to Life, Security, Privacy and Ownership in Islam (Islamic Texts Society 2008)

A very interesting exploration of privacy in Islamic law.

Jon Mills, Privacy: The Lost Right (Oxford University Press 2008)

From my blurb on the book jacket: “Privacy: The Lost Right provides a clear, concise, and accessible synthesis of the field of information privacy.”

Lena Cowen Orlin, Locating Privacy in Tudor London (Oxford University Press 2008)

An historical account of privacy in everyday life during the sixteenth century in England.

John Palfrey, Born Digital: Understanding the First Generation (Basic Books 2008)

A deft and accessible account of how the generation growing up today will face increasing challenges to their privacy.

Bruce Schneier, Schneier on Security (Wiley 2008)

This book is a collection of Bruce Schneier’s essays. Schneier is always interesting and wise — and he’s always worth reading.

Wolfgang Sofsky, Privacy: A Manifesto (Princeton University Press 2008)

A. C. Grayling of The Times writes: “Its message, implied throughout, is that as one of the great values of civilisation and one of the essentials of personal and psychological integrity, privacy is worth fighting to regain.”

Daniel J. Solove, Understanding Privacy (Harvard University Press 2008)

D. S. Dunn, in Choice writes: “Legal scholars will want to read this book, but so will psychologists, communication specialists, public policy makers, philosophers, and anyone interested in where to draw the line between public and private life.”

Rob Walker, Buying In: The Secret Dialogue Between What We Buy and Who We Are (Random House 2008)

A compelling account of modern data mining and marketing practices.

Jonathan Zittrain, The Future of the Internet–And How to Stop It (Yale University Press 2008)

A fascinating examination of Web 2.0 and how new technologies can impede freedom and progress.

This short paperback contains key cases and materials focusing on privacy issues related to the media. Topics covered include the privacy torts, free speech, First Amendment, paparazzi, defamation, online gossip and social network websites.

This book is designed for use as a supplemental text in the following courses and seminars: journalism, entertainment law, media law, Torts II (or advanced torts), cyberlaw, First Amendment, free speech, law and technology, privacy law, and information law.

More information about the book is available here. I posted the table of contents online.

To obtain a review copy, please email Diane Warren [...]]]> Shameless self-plug alert: I’m pleased to announce the publication of my new casebook with co-author Professor Paul M. Schwartz (Berkeley Law School) — PRIVACY AND THE MEDIA. [Amazon page here.]

This short paperback contains key cases and materials focusing on privacy issues related to the media. Topics covered include the privacy torts, free speech, First Amendment, paparazzi, defamation, online gossip and social network websites.

This book is designed for use as a supplemental text in the following courses and seminars: journalism, entertainment law, media law, Torts II (or advanced torts), cyberlaw, First Amendment, free speech, law and technology, privacy law, and information law.

More information about the book is available here. I posted the table of contents online.

To obtain a review copy, please email Diane Warren at Aspen.

I’m also pleased to announce that the new editions of my other casebooks are now in print — INFORMATION PRIVACY LAW (3rd edition) and PRIVACY, INFORMATION, AND TECHNOLOGY (2nd edition). Click here for more information.