Grab the Nearest Book

Posted on February 11, 2008 by Michael Froomkin

Eszter does it right. Rather than participate in the electronic equivalent of a chain letter and “tag” five people to spread a dare, she open sources it at Grab the nearest book.

As far as I know, no one has tagged me with this blog meme, but I’m still going to participate as it looks fun.

Instructions:
1. Grab the nearest book (that is at least 123 pages long).
2. Open to p. 123.
3. Go down to the 5th sentence.
4. Type in the following 3 sentences.
5. Tag five people.

Of course it helps that her book is cool.

Nearest book as I sit at my coffee table at home: The Chocolate Connoisseur by Chloé Doutre-Roussel.

…

Since I wasn’t tagged for this meme, I guess I don’t have to tag anyone else either although I invite people to grab the nearest book and post the specified three sentences here or on their own blogs.

Mine is much less cute. The nearest book to hand as I read Eszter's invitation was a collection called Rediscovering Fuller (Willem J. Witteveen and Wibren van der Burg, eds.). It is an impressive set of thoughtful essays by the likes of David Dyzenhaus, Frederick Schauer, David Luban, Joseph Vining and many others. I'm reading it because my Jurisprudence class is heavily influenced by Fuller's work and has several of Fuller's essays among the readings. So far, Rediscovering Fuller is impressively clear, which is never a given in jurisprudence.

Page 123 happens to fall on the concluding page of “Fuller's Faith” by Paul Cliteur. The essay helps flesh out what Fuller was doing in The Morality of Law, characterizing it as a modest but persuasive attempt to deal with the difficulty (impossibility?) of describing a full theory of justice by instead describing what systemic features tend very strongly to injustice. Cliteur paraphrases Fuller as saying, “I do not know exactly what justice is, but I have a clear idea about what it is not. There are some values we have to incorporate in every legal system. If we fail in this respect, justice fails and the system crumbles down.” (p. 115) Some people find this sort of thing to be thin gruel. I find it to be true. (These are not necessarily inconsistent positions.)

The fifth-seventh sentences of page 123 take us within one sentence of the end, so I've included a bonus sentence too. But I have to say that because the ending is in no way a summary, but just a final thought, it fails to capture the spirit of the essay,

He [Bentham] believed that a legislature chosen by the broadest possible electorate was the institution most likely to produce laws that served the public welfare. This would leave judges and commentators little discretion in their interpretation and application.

So everybody has his own faith. I believe that faith as expounded in Fuller's work is certainly neither the most naive nor the least promising as far as the search for the principles of good government is concerned.

Feel free to post yours in the comments, or elsewhere. But don't 'tag' anyone, please.

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11 Responses to Grab the Nearest Book

  1. Matt Lister says:
    February 11, 2008 at 9:50 am

    The book on Fuller sounds very interesting, Michael. Would you consider posting the table of contents? Amazon doesn’t allow “look inside” for it and though it gives a partial listing of the contents doesn’t give the whole thing. It’s too expensive for me to buy now and I have only limited library access right now so I doubt I’ll get it soon but it sounds interesting enough that I’d like to know all of what’s in it. I, at least, would certainly apprecaite that, if it’s not trouble.

  2. Michael says:
    February 11, 2008 at 12:31 pm

    TABLE OF CONTENTS

    Philip Selznick
    Preface to Rediscovering Fuller

    Acknowledgments

    List of abbreviated publications by Lon L. Fuller

    List of contributors

    Willem J. Witteveen
    Rediscovering Fuller: An Introduction

    I. Beyond the Fuller-Hart Debate

    Kenneth I. Winston
    Three Models for the Study of Law

    David Dyzenhaus
    Fuller’s Novelty

    Paul Cliteur
    Fuller’s Faith

    Frederick Schauer
    Fuller on the Ontological Status of Law

    II. Moralities of Law

    Pauline Westerman
    Means and Ends

    Wibran van der Burg
    The Morality of Aspiration: A Neglected Dimension of Law and Morality

    David Luban
    Rediscovering Fuller’s Legal Ethics

    III. Implicit Law

    Peter R. Teachout
    “Uncreated Conscience”: The Civilizing Force of Fuller’s Jurisprudence

    Gerald J. Postema
    Implicit Law

    IV. The Art of Institutional Design

    Roderick A. Macdonald
    Legislation and Governance

    Willem J. Witteveen
    Laws of Lawmaking

    John W. F. Allison
    Legal Culture in Fuller’s Analysis of Adjudication

    Marc Hertogh
    The Conscientious Watermaster: Rediscovering the Interactional Concept of Law

    Karol Soltan
    A Social Science That Does Not Exist

    V. Law’s Dialogue

    James Allan
    Lon Fuller’s “The Case of the Speluncean Explorers”

    Francis J. Mootz III
    Natural Law and the Cultivation of Legal Rhetoric

    Joseph Vining
    Fuller and Language

  3. Michael says:
    February 11, 2008 at 12:34 pm

    Significant chunks appear to be online at Google Books

  4. Matt says:
    February 11, 2008 at 12:47 pm

    Thanks! (Since the closest book to me is 148 F.3d I decided not to take part in the game.)

  5. Jon says:
    February 11, 2008 at 1:52 pm

    I reached for the closest book (Merriam-Webster’s Dictionary of English Usage), and the results weren’t that interesting. The second-closest book was Adrian Vermeule’s Mechanisms of Democracy; ditto. But the *third*-closest book was Aleinikoff et al.’s Immigration Law casebook, and the excerpt there is timely. Speaking of a person involuntarily deprived of citizenship, Chief Justice Warren writes (in dissent, but later vindicated):

    His very existence is at the sufferance of the state within whose borders he happens to be. In this country the expatriate would presumably enjoy, at most, only the limited rights and privileges of aliens, and like the alien he might even be subject to deportation and thereby deprived of the right to assert any rights. The government was not established with power to decree this fate.

    And a smidge further down the page:

    But the citizens themselves are sovereign, and their citizenship is not subject to the general powers of their government. Whatever may be the scope of its powers to regulate the conduct and affairs of all persons within its jurisdiction, a government *of* the people cannot take away their citizenship simply because one branch of that government can be said to have a conceivably rational basis for wanting to do so.

  6. Michael says:
    February 11, 2008 at 4:02 pm

    Matt- you missed a golden opportunity. It just so happens that page 123 of 148 F.3d is the key holding of a decision by Judge Calabresi in DIAMONDSTONE v. MACALUSO, 148 F.3d 113 (CA2 1998).

    The headnote says:

    Motorist who was subject of 12 traffic stops by same state trooper over 16 month period, most of which were for suspicion of lack of insurance, sued trooper, his supervisors, and state of Vermont. Motorist alleged claims under § 1983, as well as various state law claims. After defendants were granted summary judgment on § 1983 claim, the United States District Court for the District of Vermont, J. Garvan Murtha, Chief District Judge, entered judgment on jury verdict finding for trooper on all state law claims except defamation claim, with respect to which jury awarded motorist no damages. Motorist appealed. The Court of Appeals, Calabresi, Circuit Judge, held that: (1) trial judge was not required to recuse himself; (2) state of Vermont may require motorists to provide proof of insurance and may draw adverse inference from motorist’s refusal to do so, without infringing Fifth Amendment; (3) motorist’s refusal to provide proof of insurance first two times he was stopped by state trooper did not give that trooper probable cause or reasonable suspicion to believe that motorist thereafter drove without insurance; (4) jury instruction on malicious prosecution was reversible error; and (5) defendants were not entitled to summary judgment on qualified immunity grounds.

    Affirmed in part, reversed in part, vacated and remanded in part.

    And here’s the quote from p. 123:

    The fact that Vermont may order citizens to provide proof of insurance in conjunction with a valid traffic stop or when they apply for their annual state inspection sticker does not, however, mean that the state police may pull motorists over without probable cause for the sole purpose of asking them to provide proof of insurance. See Delaware v. Prouse, 440 U.S. 648, 663, 99 S.Ct. 1391, 59 L.Ed.2d 660 (1979) (police may not stop motorists simply to ask for license and registration). In terms of the impact on liberty, there is a fundamental difference between being asked to answer questions in certain well-defined settings and being subjected to random detentions by government officials seeking information. See id. at 657, 99 S.Ct. 1391 (contrasting stops of individual motorists, which generally entail “an unsettling show of authority,” “interfere with freedom of movement, are inconvenient, and consume time,” and which “may create substantial anxiety” for the driver with traffic checkpoints where every motorist is stopped and individuals are “much less likely to be frightened or annoyed by the intrusion”).

  7. Andrew DW says:
    February 11, 2008 at 7:04 pm

    From “A Conrad Argosy” (collection) p. 123 – “The Nigger of the ‘Narcissus'”

    Mr. Baker could not speak, but found his voice to shout; and under the goad of his objurations, men looked to the lashings, dragged out new sails; and thinking themselves unable to move, carried heavy blocks aloft – overhauled the gear. They went up the rigging with faltering and desperate efforts. Their heads swam as they shifted their hold, stepped blindly on the yards like men in the dark; or trusted themselves to the first rope at hand with the negligence of exhausted strength.

  8. Mojo says:
    February 11, 2008 at 7:58 pm

    The nearest book just had a map of Somaliland on page 123 so I grabbed the next one.
    “By October, the Soviet defenses had been split into four shallow bridgeheads, with the front lines only 600 feet from the riverfront. The 187th Rifle Division moved into a riverfront factory with orders to hold it at all costs. Within three days, 90 percent of the division was dead or missing, a gruesome achievement for which it was redesignated as a Guards unit.”

    When Titans Clashed by Glantz and House
    (Just at the point when the whole war turned around)

  9. Buce says:
    February 12, 2008 at 12:51 am

    Find another non-response here.

  10. Michael says:
    February 12, 2008 at 8:31 am

    Bruce – I can’t get that link to work, it seems to be asking for your personal login?

  11. obfuscati says:
    February 13, 2008 at 1:41 am

    last year

    this year the two dictionaries have been joined by —

    – a phone book
    [pg 123, names start with g],

    – the audubon society field guide to north american birds, eastern region
    [page 123 falls in the un-numbered pages of color plates, approximately in the duck-like birds; plate 123 is the lesser scaup], and

    – step-by-step tai chi
    [page 123 has only 6 sentences on it, describing the moves for the ‘bring the tiger and return to the mountain’ section of the small circle form]

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