Suggestions for American judges: ten books that merit reading.

• Date: 22 September 2009
• Author: Berring, Robert C.

Writing about books is pure joy for me. Little in life can match the experience of falling into a good book. The private space that the author and the reader occupy can be delicate and powerful. The totemic power of books is fading in our world, but that is all the more reason to celebrate the power that they retain. I come to praise books, not to bury them.

But taking on the task of recommending ten books for American judges to read is at once delightful, and deranged. How can one resist the opportunity to pontificate on what others should read, especially when those others occupy judicial office? When it comes to telling judges what they should read, the timorous should stay at home. (I, however, am still here.)

In a situation like this one, it is tempting to compile a list of guaranteed heavyweight titles. One of my friends advises that when working on a list such as this one, the safest course is to choose books that are so thick that no one has ever actually read them. That way, no one can criticize. This fail-safe suggestion put me in mind of David Lodge's delightful novel Changing Places, (1) in which a group of graduate students and faculty in the English department of a great university, play a game requiring each to admit to a classic book that he or she has not actually read. It is a scary exercise. And yet most of it rings so true that I can't bring myself to follow my friend's advice. My resolution, then, is not to produce a list of books that is safe in pedigree, but that contains volumes one would read only under threat of punishment. To be sure, there are classic titles on this list, but I include only books that I find both edifying and readable. No ornamental shrubbery is allowed.

Each book that appears below is still in print, and easily purchased through the good offices of Amazon.com. All are surely in any good academic law library, and a few would be in general collections as well. (How sad that I do not send you to a local book store. The reader may be so fortunate as to live in a place where a fine used book store survives, but independent bookstores of all types are on the ropes. There is no point in failing to face the truth.)

A couple of last thoughts before the list begins: First, Frederick Hicks, a law professor and law librarian at Yale in the middle of the last century, wrote a charming book, Men and Books Famous in the Law. (2) Professor Hicks chose for it a few legal works that he judged to be classics, and then wrote about why each is important, where it fit into the legal universe, and who the author was. Many of those books are too old for this list, but if you want to see a master working the same territory as I cover in this piece, browse through his book. Second, a list like this is totally subjective. It is an expression of my experience and it reflects my intellectual life. Though I have asked others for thoughts and suggestions, and while I have debated these titles at length with friends, it is a very personal endeavor. If I leave off a title that you love, or include a title that you loathe, I at least take pleasure in the fact that the list made you think about books.

SERIOUS BUSINESS: THE BEGINNING

Oliver Wendell Holmes, The Common Law (Little, Brown & Co. 1881)

The first entry on the list is the most challenging for the reader. This classic work by Justice Holmes is not an easy read, but it is still approachable, and it is the foundation stone for so much that follows. As Grant Gilmore noted, when Holmes wrote this book he probably knew more about legal history and the common law, to say nothing of his deep knowledge of other legal cultures, than any other living person. (3) The book is still in print, and, though much of it has been assailed over time, it is the root from which much has come. Since I teach Contracts, I love the chapter on that subject...