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Category: Book Reviews

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Michael Sullivan’s Legal Pragmatism: Community, RIghts, and Democracy

book-sullivan-pragmatism.JPGIt seems as though books are the theme of my blogging this week, so I thought I’d recommend another great new book: Professor Michael Sullivan’s Legal Pragmatism: Community, Rights, and Democracy (Indiana Univ. Press 2007). From the book jacket:

In Legal Pragmatism, Michael Sullivan looks closely at the place of the individual and community in democratic society. After mapping out a brief history of American legal thinking regarding rights, from communitarianism to liberalism, Sullivan gives a rich and nuanced account of how pragmatism worked to resolve conflicts of self-interest and community well-being. Sullivan’s view of pragmatism provides a comprehensive framework for understanding democracy, as well as issues such as health care, education, gay marriage, and illegal immigration that will determine its character in the future. Legal Pragmatism is a bold, carefully argued book that presents a unique understanding of contemporary society, law, and politics.

Michael Sullivan is a professor of philosophy at Emory University and was a classmate of mine at Yale Law School. A few years ago, we co-authored an article about legal pragmatism: Can Pragmatism Be Radical?: Richard Posner and Legal Pragmatism, 113 Yale L.J. 687 (2003). Michael is one of the most brilliant people I’ve met, and his new book is terrific. Professor Bruce Ackerman’s blurb says it all: “[This book] represents a genuine breakthrough. . . . [It] will have a large influence on the course of jurisprudential reflection in the decades ahead.” Highly recommended for anybody interested in legal theory!

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Histories of Things: What Next?

A new genre of history book seems to have become immensely popular. These books attempt to chronicle the histories of various things or objects. While some look interesting, I think they are starting to proliferate at an excessive pace. Pretty soon, there will need to be a book called A History of Historical Books About Things. Anyway, this post was prompted by a new book in this genre that I think demonstrates that it is going too far.

book-hist-salt.JPGBut first, let’s start our journey elsewhere; I’ll save the best for last. There are countless histories of various foods and seasonings. There’s Mark Kurlansky’s Salt: A World History. If a history of salt is too narrow a topic for you, you can read Jack Turner’s Spice: The History of a Temptation. There’s also Larry Zuckerman’s The Potato: How the Humble Spud Rescued the Western World. Betty Fussell has written a history of corn called The Story of Corn. And then there’s Iain Gately’s Tobacco: A Cultural History of How an Exotic Plant Seduced Civilization. Mort Rosenblum has helped us better understand the olive in historical context in Olives: The Life and Lore of a Noble Fruit.

book-hist-cod.JPGThere are histories of various seafood. Mark Kurlansky has also written Big Oyster: History on the Half Shell and Cod: A Biography of the Fish That Changed the World.

Some more histories of things include Barnaby Conrad’s Absinthe: History in a Bottle and Dominic Streatfeild’s Cocaine: An Unauthorized Biography. There’s Jewels: A Secret History by Victoria Finlay.

There are histories of wine, including Rod Phillips’s A Short History of Wine and Wine: The 8,000 Year-Old Story of the Wine Trade by Thomas Pellechia. But why stop at just a history of wine? How about Charles Sullivan’s Zinfandel: A History of a Grape and Its Wine? If wine isn’t your drink, you can read Jessica Warner’s Craze: Gin and Debauchery in an Age of Reason. And to wake up in the morning after it all, there’s Coffee: A Dark History by Antony Wild or The Devil’s Cup: A History of the World According to Coffee by Stewart Lee Allen or Uncommon Grounds: The History of Coffee and How It Transformed Our World by Mark Pendergrast.

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Lawrence Mitchell’s The Speculation Economy

speculation-economy.jpgMy colleague, Professor Lawrence Mitchell (GW Law School) has just published The Speculation Economy: How Finance Triumphed Over Industry (October 2007).

Larry’s book examines the question: “How did the stock market become the center of the American economy?”

The book description begins:

American businesses today are obsessed with the price of their stock, and no wonder. The consequences of even a modest decrease can be so dire that some executives would rather damage their corporation’s long-term health than allow quarterly returns to fall below projections. But how did this situation come about? When did the stock market become the driver of the American economy?

The answer:

Lawrence E. Mitchell shows that the tipping point was reached in the first decade of the 20th century as a result of the birth of the giant modern corporation. He tells the story of the legal, financial, economic and social transformations that allowed financiers to collect companies and combine them together into huge new corporations for the main purpose of manufacturing stock and dumping it on the market. Businessmen started to make more money from legal and financial manipulation than from practical business improvements like innovations in technology, management, distribution, and marketing.

Selling this stock was the tricky part. In 1899 even the Wall Street Journal advised its readers that buying stock was simply too risky, not an investment appropriate for ordinary Americans. Mitchell identifies how and why, over the course of the next two decades, attitudes shifted and Americans changed from cautious bond buyers into eager stock speculators. At the same time, he shows how a federal government wedded to an outdated economic model and struggling to expand its own power failed to regulate finance and thus missed the chance to control corporations. While politicians argued, finance came to dominate industry, and as stock ownership spread widely throughout society, the stock market came to dominate finance.

Larry’s writing is very clear, smart, and engaging. This looks like a great book, and I’ve already ordered my copy.

You can buy the book on Amazon.com or read more about the book on its website.

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Judge Posner’s Not a Suicide Pact

posner-book1.jpgI’ve just finished reading Judge Richard Posner’s new book, Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford, 2006). The book is a slender volume, with a remarkable feat for a law professor — absolutely no footnotes or endnotes or citations of any sort save a short bibliography at the end.

Before I began reading Posner’s book, I was surprised that some reviewers, such as Dahlia Lithwick, praised the book as measured and balanced:

In his new book, “Not a Suicide Pact: The Constitution in a Time of National Emergency,” Posner approaches the wartime civil liberties problem in precisely the manner the Bush administration will not: with a dispassionate weighing of what is won against what is forsaken each time the government engages in data mining, indefinite detentions or the suppression of free speech.

I do not share Lithwick’s enthusiasm. Posner’s book struck me as a very broad defense of the Bush Administration’s policies (with a few exceptions) and as advocating a balancing between civil liberties and national security in which national security will nearly always win out. Posner is masterful in his rhetoric, though, and manages to sound judicious and measured even though the implications of what he is arguing often are rather extreme.

Posner begins by arguing for a “living Constitution,” which means that the Constitution should not be rigidly interpreted but should evolve with the times. In this respect, he agrees with Justice Brennan and other liberal jurists. Some reviewers, such as Michiko Kakutani of the New York Times attacked Posner’s living Constitution argument:

This willingness to bend the Constitution reflects Judge Posner’s archly pragmatic approach to the law and his penchant for eschewing larger principles in favor of utilitarian, cost-benefit analysis. Efficiency, market dynamics and short-term consequences are what concern Judge Posner, not enduring values or legal precedents.

One result is a depressing relativism in which there are no higher ideals and no absolute rights worth protecting. . . .

I agree with Posner on the point about the living Constitution. Posner’s point is that like it or not, the Constitution is already a living Constitution: “So much of the constitutional text is vague or obsolete that a great deal of judicial patchwork is required for the Constitution to remain serviceable more than two centuries after it was written.” (p. 19). The problem with Posner’s arguments, however, is not in his embracing of pragmatism, balancing, and an evolving Constitution but in the way he goes about his balancing.

Posner argues for judicial restraint because “when in doubt about the actual or likely consequences of a measure, the pragmatic, empiricist judge will be inclined to give the other branches of government their head.” (p. 27). Why? It is not self-evident at all that the executive branch has made the most wise decisions on national security throughout history. More importantly, it is not clear why the executive branch is better at balancing civil liberties and national security. If anything, it seems to me that the executive branch might weigh national security too much.

Posner argues that the threat of terrorism is very grave: “The research that I have been conducting for the past several years on catastrophic risks, international terrorism, and national security intelligence has persuaded me that we live in a time of grave and increasing danger, comparable to what the nation faced at the outset of World War II.” (p. 3). Really? As I’ve argued before, perhaps the dangers of terrorism are being weighed too heavily. Regardless of whether I’m wrong or right, Posner does little to question and analyze the dangers of terrorism, which he largely assumes.

Posner makes a straw man out of civil libertarians, who he claims “are reluctant to acknowledge that national emergencies in general, or the threat of modern terrorism in particular, justify any curtailment of the civil liberties that were accepted on the eve of the emergency.” (p. 41). Why not take on the more nuanced civil libertarians, who don’t have such an absolutist view? Most civil libertarians are not absolutists but are arguing that certain programs that curtail civil liberties do not provide sufficient benefits in addressing the risk of terrorism (which they don’t assess at such a grave level as Posner does) to justify the costs. They are just engaging in a different cost-benefit analysis, but Posner seems to paint anybody who doesn’t engage in his particular cost-benefit analysis as unpragmatic and absolutist.

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