The Law and Sacred Spaces Part II: Monumentalism Reply

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Yesterday, I posted about the anxiety that nineteenth century Americans felt while trying to understand their place in the world pecking order.   That across the Atlantic, European counterparts displayed the advantages of time — long-standing cathedrals, bridges, buildings and archways that testified to their society’s greatness.

So how does a country with less than one hundred years demonstrate to the world that it has the bona fides of a great society.  In the absence of great architectural wonders, Americans noticed their land was filled with natural wonders.

Susan Fenimore Cooper described the work of Monsieur-Agassiz, who asserted that “North America is, in reality, the oldest part of the earth.”  America did not have ancient coliseums or cathedrals, but held even holder “edifices of natural workmanship.”  Indeed, Cooper closes out her essays observations of the natural American landscape, but using terms of man-made edifices to describe the natural elements surrounding the village:

We had been indulging in the wish to have a view of the valley in the condition it would have assumed had it lain in the track of European Civilization during past ages; how in such a case would it have been fashioned by the hand of man?  To our amazement, the wish was now granted.  But it required a second close scrutiny to convince us that this was indeed the site of the village which had disappeared a moment earlier, everything was so strangely altered.  We soon convinced ourselves, however, that all of the natural features of the land-scape remained precisely as we had always known them; not a curve in the lake was displaced, not a knoll was misplaced…

And in further detail, Cooper concludes by placing the American Landscape side by side with the castle and cathedral spires, ancient watchtowers, and perfect Roman roads.  For Cooper, and others, the natural landscape was America’s response to a world looking to validate the young country against the culture of the older Europe.

With this sentiment moving forward, beginning as early as the 1860’s, Congress began carving out lands in the name of recreation, but with the dual purpose of protecting natural monuments from aggressive western expansion.   In 1864 Congress transferred an area in what is now the Mariposa Grove of Yosemite National Park to the state of California to preserve and protect as a place of recreation.    This transfer of land was just the first recognition that natural places formed the American identity.  Congress would act more directly and more purposefully towards protecting these areas from commercial exploitation.

In 1872, Congress carved out the area known as Yellowstone park in order to preserve its natural setting as a “great national park or pleasure ground for the benefit and enjoyment of all people.”  The park described by legislators and supporters contained “wonderful falls, hot springs, geysers” along with “the most beautiful lake in the world, set like a gem among the mountains,” and “one of the most remarkable water-sheds on the continent” which give origin to three of the largest rivers in North America.  Congressional writers writing about Yellowstone could hardly contain their amazement at the natural opulence that the natural world had laid within the American borders. Closing out the annual geographic survey of 1872, the report states about Yellowstone :”from any point of view which we may select to survey this remarkable region, it surpasses in many respects, any other portion of our continent.”

Alfred Runte has argued that these statements together with other statements regarding the land’s lack of economic usefulness resulted in a monumentalism/ worthless lands dichotomy.   Indeed, at many places in Congressional documents, the argument is articulated that the lands pose no serious economic usefulness for the young country.  For instance, in the Report by the Committee on Public lands on the Yellowstone reservation, the the questions of weather exposure, geological suitability and isolation were raised as problems in the sustainable marketability of the land:

 We have already shown that no portion of this tract can ever be made available for agricultural or mining purposes. Even if the altitude and the climate would permit the country to be made available, not over fifty square miles of the entire area could ever be settled. The valleys are all narrow, hemmed in by high volcanic mountains like gigantic walls.

The withdrawal of this tract, therefore, from sale or settlement takes nothing from the value of the public domain, and is no pecuniary loss to the Government, but will be regarded by the entire civilized world as a step of progress and an honor to Congress and the nation.

This worthless lands hypothesis has been criticized by the failure to recognize the economic resources of the land as prompting tourism and travel, even if the lands themselves were not suitable to traditional forms of economic use, such as agriculture, manufacturing, or mineral extraction.  Indeed, Congress well recognized the potential economic attraction of places like Yellowstone:

Persons are now waiting for the spring to open to enter in and take possession of these remarkable curiosities, to make merchandise of these beautiful specimens, to fence in these rare wonders, so as to charge visitors a lee, as is now done at Niagara Falls, for the sight of that which ought to be as free as the air or water.

In a few years this region will be a place of resort for all classes of people from all portions of the world. The geysers of Iceland, which have been objects of interest for the scientific men and travelers of the entire world, siuk into insignificance in comparison with the hot springs of the Yellowstone and Fire-Hole Basins. As a place of resort for inV valids, it will not be excelled by any portion of the world. If this bill Vails to become a law this session, the vandals who are now waiting to enter into this wonder-land will, in a single season, despoil, beyond recovery, these remarkable curiosities, which have required all the cunning skill of nature thousands of years to prepare.

What made the land worthless was not their potential to create any economy, but their usefulness in creating traditional forms of economy derived from land use.   But perhaps the opposite could also be claimed.  That it was the potential for economic exploitation that drove Congress to declare these lands valueless, and therefore fictionalize the lack of value that these lands contained.  As one scholar well stated, due to the “materialistic bent of the populace, Congress needed to be assured in 1872 that the first National Park, Yellowstone, was unfit for cultivation, stock raising, or settlement and that the establishment of the park infringed upon neither “vested rights of settlers.”

Next Post — Conflict and Compromise in Political Consensus.

The Law and Sacred Spaces Part I: America in the Face of European Time Reply

by • Creation Narratives, Property, Susan Fenimore Cooper • Tags:

I have been working on some scholarship for the past two years on Property Law’s interactions when law does not apply — a very social science view of law’s reach.  But part of the quest for how the law reaches into areas in which it does not apply requires us to understand how law accomplishes certain things.   For example, how is it that law purports to define purposes for space — whether those purposes are sacred purposes, economic purposes or what have you.   Over the next few posts, I want to look at the National Parks and how American law was defined by the purposes underlying the parks creation.   Particularly, I will pay heed to the writings of Susan Fenimore Cooper and her views of the National Parks as necessary to a broader American identity.

One way that we define purposes for space is through a process of political consensus.   The political process in creating the national monuments established by legislative action the cultural significance of certain natural areas – significance that did not have the benefit of time honored reverence by the culture itself. Such protection of organic spaces begins in the period that Alfred Runtes calls monumentalism, a period in which deep seated insecurity about the lack of national monuments, such as found in longer standing European countries pervaded the American psyche.   Attempting to establish itself as a peer with the older European nations, Americans could not look to man-made things of antiquity to claim cultural bona fides.  Instead, Americans would look to something not-man-made to fills its psyche and sights to strike awe as a country worthy of inclusion with the older historical, and castle laden countries of old Europe.   For the young country seeking to validate its existence to the world, it could not look about to find ancient structures that have stood for hundreds of years.  Existing American architecture was new, compared to cathedrals, castles and columned statehouses of France, England and Spain.  And the structures that America did have seemed temporary.  Instead, Americans looked to the natural wonders around it, particularly those west of the Rocky Mountains – land though virtually worthless for its economic use, could be quite bountiful as a place to strike an identity for the still young country.

Susan Fenimore Cooper described the tension between comparing the present and the struggle for American identity.  She begins her commentary by describing the effect of man over time in a land:

“The monuments of the succeeding age, raised by a more skillful people are much more prominent.  Indeed it would seem as if man had no sooner mastered the art of architecture, than he aimed at rivaling the dignity and durability of the works of nature, which served as his models.”

Of course as Cooper would go on to say, America, though holding an abundance of the later, lacked the former edifices that testify to man’s ingenuity and wisdom.  But it was not just the aesthetics of the ancient buildings that forced Americans like Cooper to look around and wonder about their own landscapes in comparison to their European counterparts, it was their age that defined the structures as emblematic of a thoughtful culture:

The durability of their architecture still remains to the present day one of the most remarkable characteristics of those ancient ages.  Such is the wonder excited in the minds of the most skillful architects of the present day at the sight of the immense masses of stone transported and uplifted , apparently at will, by those ancient nations that some have supposed them to have possessed mechanical power of their own, lost to succeeding ages and not yet regained by ourselves.  Certainly if would appear a well-assured fact, that the oldest works of the first great architects have been the most enduring and the most imposing of all that human art has raised.

And, from many Americans view point, these great creations have passed to all nations but America.  Cooper notes that Egypt has the great pyramids and India has her ancient temples.  The Roman and Grecian civilizations produced “architectural labors which for excellence and beauty” American struggles to find a comparison. And the civilizations of Europe, thanks to the Gothic architecture of the middle ages, are endowed with Cathedrals, castles and bridges, “which with a few exceptions here and there, [shall] outlast modern works of the same nature.”

Indeed, looking across the American landscape, persons such as Cooper were certainly remiss to find edifices that lasted the test of time.  But the test of time, was not merely showing the technological capacity of individuals to create lasting structures, but inspired the modern ages architecture to do likewise in these places.  America suffered with few architectural examples to follow and therefore know which ones to keep:

How different from all this is the aspect of our own country!…. The fresh civilization of America is wholly different in aspect from that of the old world: there is no blending of the old and the new in this country; there is nothing old among us.  If we were endowed with ruins we should not preserve them; they would be pulled down to make way for some novelty.  A striking instance of this tendency will be found in the fact that the last Dutch house in New York has disappeared.  For a long time a number of those historical way marks existed in the older parts of the town, but now, we understand that the last high gable, the last dutch walls, have disappeared from New Amsterdam.

Indeed, without a past that reveals itself in the sights of the American landscape, the American experiment might be deemed to be like its architecture – slight and fugitive.  America needed something different to claim as establishing its antiquity.

Next Post — Natural Monumentalism

 

Some Illusions in Hunger Games and Initial thoughts Reply

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I spent the last two days reading the Hunger Games — here are some initial thoughts on the book (with an attempt to avoid spoilers).

On the dystopian element…  This book had a lot of elements that reminded me of Margaret Atwood’s classic dystopia The Handmaid’s Tale:

  • The first person narration;
  • The role of obvious biblical symbolism (more on that in a moment);
  • The tension  between the main character and a person she is not sure she can trust (which happens to also be a romantic interest);
  • The presence of another Romantic character outside the Dystopic environment (but who has also been subjected to the dystopia in a different way);
  • The separation of the main character from both the life and environment she is accustomed to; etc…

I am curious to see if the author continues these elements in the second and third book (to be read this week).

On the Biblical Symbolism… The book is filled with biblical symbolism:

  • The twelve districts — the twelve tribes of Israel — The twelve disciples.
  • Formerly thirteen districts, until one betrayed the Capital — thirteen total disciples in the Bible, including Judas Iscariat, until Judas hangs himself after betraying Jesus;
  • Soooooo many references to fishes and bread as sustenance (the Country is Panem — the Latin word for bread) – Jesus’ greatest miracle the feeding of the 5000 with fishes and loaves of bread;
  • The Character Peeta — sure sounds like Peter;
  • The Character Cato  – a perhaps a reference to the statesman and General Cato the Elder serving under the reign of Nero, a notoriously anti-christian Roman emperor.  These are the obvious ones… (P.S. I am resistant to find the overall theme “Christian” in nature.  Perhaps, I am more likely to find the Biblical story to be dystopic — perhaps I will post on this sometime).  Nevertheless, there is an interesting write up on the Christian themes present here .

On Rhu…  In my opinion, the best character in the book.  She is mysterious, thoughtful, and trusting.

That’s all for now.


Law School Debt: A Frolic of our own or a Leviathan that can be tamed? Reply

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Law school debt has been rising for some time.   Students graduating from American Law Schools with ever increasing debt loads, do not seem to match the earning ratio that would make law school debt a wise investment.  Over at Balkinization, Brian Tamanaha reports:

The average indebtedness figures for 2011 law graduates are stunning. Last year, 4 law schools had graduates with average debt exceeding $135,000. This year 17 law schools are above $135,000. Last year the highest average debt among graduates was $145,621 (Cal. Western); this year the highest average debt is $165,178 (John Marshall).

Tamanhana continues:

What’s remarkable is that the majority of graduates from these law schools–with the exception of Northwestern–do not obtain jobs with salaries sufficient to make the monthly loan payments due on the average debt. At some of these schools 90% or more of graduates with debt do not earn enough to make the loan payments on this level of debt (not all indebted students will carry the average debt).

Tamananha reports the twenty schools with the highest average debt per student.  One of the interesting problems raised by Professor Tamananha’s post is the number of California schools on the list.  Of the twenty schools on the list, seven of the schools are California law schools — four of the six lowest ranked schools in the State of California are on the list.   OF course, California is a place where nothing is cheap.

I admit as a Professor in a fourth tier school in California, I worry very much about the debt our students incur.    I began thinking about this problem when the occupy Wall Street protests began.  One of the unifying cries of the occupy Wall Street movement was a very sincere question — why give Wall Street bail outs instead of students.  At the time I thought that while this felt like a  just solution, if carried out, it would merely  place a bandaid over a problem that needed greater attention.   My perception at the time, and still, is we needed to approach the problem in both a macro and micro way — both institutionally and systematically.    We should not consider law school debt as a unique problem in American education – student debt is rising across all educational sectors.   This is not merely a problem of debt  to income ratio — though that is certainly one piece of the puzzle.

But we should not absolve institutions from responsibility either.  The responsibility of the law school to think critically about how it can put its graduates in the best position to obtain meaningful legal employment (besides passing the bar exam) seem integral to the evolving nature of the law school.  Different schools have taken unique approaches.  For example Northeastern has long used a quarter system so that the bulk of its students would be free to take on extern opportunities during normal academic year (instead of the summer when they find themselves competing with top 15 law schools for the same opportunities).  I think this strategy has been successful for Northeastern’s graduates.

Indiana University – Bloomington incorporated career services strategizing as a part of its PR class — forcing students to think about professional responsibility as a development program rather than a requirement for admission to the bar.  It seems that Fourth Tier schools in complex markets need to be similarly creative in thinking about how to maximize opportunities for students.  (This is not to say that the Career services people in various institutions do not work very hard for their students — but institutionally, career services receives, I believe, less attention than it deserves.

One solution might be to require  schools (at all levels) that accept Federal Student Aid to accept 50% of the student loan burden for students that are either not employed or enrolled in a graduate program eighteen months after graduation and until that student is employed and or in graduate school.   This would do a couple of things — first it would force schools to be more selective in the persons that they admit to their programs.   But the down side to this solution is that schools would then become risk adverse in the admissions process – -they would only admit the students that they are certain would be successful in both the job and the bar market.  This might be a harder point to gauge, than say bar success; but as risk averse as institutions tend to be, some metric would become a defining point for determining who is likely to be a “good risk” and who is likely to be a “bad risk.” It perhaps might also increase first year attrition rates, with law schools and other programs increasing class sizes to offset financial losses from lower class sizes in the second and third year.  Perhaps the burden to schools could be reduced by schools demonstrating that they (1) took active measures to enhance the marketability of its graduates at graduation; and (2) continue offering on-going support to graduates in their pursuit of employment opportunities.

Another additional solution would be for the ABA to require long-range reporting of student debt to income burdens of graduates.  Perhaps Jim Chen’s ratio of one-third tuition to first year salary is a starting point.  But then again, I am not sure that average debt ratios at graduation tell us a whole lot about the debt problem.   What we really want to know is what the debt to income ratio is during specific windows of time — one year, three years, and five years after graduation. We might be willing to live with higher debt if there is evidence suggesting a higher return.  That would also allow financial institutions to frame repayment plans in a manner that works for graduates.   Reporting this data and making it publicly available (through U.S. News) would create market pressure on schools.   Additionally, forcing schools to report debt information for all admitted students would again force schools to carefully monitor its admissions offices. Of course, this might also have the same impact as above — perhaps forcing schools to be more careful about its admission decisions, reducing the number of opportunity admits a school makes, or increasing law school attrition after the first year.

I think the most important point here is a broader conversation of all of the potential problems and risk outcomes we are not comfortable with.  While the law school (and educational bubble) points to weaknesses of American education, to craft a solution based only on the bubble would be as foolhardy as ignoring the problems that the bubble creates.

What are your thoughts?

Good Commercial Faith and the City: What Adam Smith really would say… Reply

by • Adam Smith, Book Reviews, Commerce, Property, Ralph Waldo Emerson

In teaching a Property Seminar,I have asked students to write response essays to books that have property themes.  One student, Jim Dickinson (employers out there, hire this guy now), decided to take on Milton Friedmon’s Capitalism and Freedom.  In doing so, I suggested he read Deirdre McCloskey’s Bourgeous Virtues: Ethics in an Age of Commerce.  James wrote back this past weekend and said: “I began reading it this morning, and it is very helpful.  The author is brilliant and hits on points that Friedman leaves out.  McCloskey brings to light the other side of the capitalism, the side of exercising personal virtue, that Friedman omits.”

So I decided to dig through the archives and find a post I wrote about three years ago for Commercial Law blog.   Enjoy!

This post appeared on Commercial Law Prof Blog March 18, 2009

I want to talk about commercial virtues. One of the troubling aspects of commercial dealings today is the focus on ethics. Truthfully, I despise the topic (perhaps because I was never very good at the subject in either theological classes or law classes — like professional responsibility for one). But the real reason I despise ethics, my own discordant academic performance in the subject aside, is I think we are often times asking the wrong questions. We assume that by ethics, we mean some form of social responsibility, but more often than not, that responsibility is defined by communities of interest, rather than greater social values. Consider the problem with UCC 1-201 and the definition of good faith. Do we really mean good faith is “honesty in fact” when we combine that with the observation of “reasonable commercial standards of fair dealing”. Which takes precedence — clearly the latter. The secured lender that tells only part of the story to his debtor (your income statement is a mere formality) has not been completely operating with “honesty in fact” though his actions may well fit within the constraint of reasonable commercial standards of fair dealing — after all, fudging your income was hardly the act of just a few bad apples. The subjective element of good faith gives way to the relevant community that defines what good faith means.

Deirdre McCloskey in her defense of capitalism, aptly named, the Bourgeois Virtues, makes many debatable claims that Capitalism makes the world better (many of which I will not attempt to defend). But what McCloskey does get is that commerce (and commercial law) urges the continued development of social structures for the betterment of the individual within a community that is itself working to be better. Her perspective is that capitalists, like Adam Smith understood that capitalism was constrained by a quite powerful force — the internal virtue of the individual.  Quoting Rabbi Starks, McCloskey writes:

It is the market — the least overtly spiritual of contexts — that delivers a profoundly spiritual message… The free market is the best means we have yet discovered… for creating a human environment of independence, dignity and creativity.

McCloskey’s message of capitalism as a movement of social ingenuity is at its core the spiritual message of hope we find in some of our best religious literature. The prophet Jeremiah admonished the Israelites in Captivity:

This is what the Lord Almighty, the God of Israel says to all those I carried into exile from Jerusalem to Babylon: ‘Build houses, settle down; plant gardens, eat what they produce, Marry and have sons and daughters; find wives for your sons and give your daughters in marriage so that they too may have sons and daughters. Increase in number there do not decrease. Seek the peace and the prosperity of the city to which I have carried you into exile. Pray to the Lord for it, for if it prospers, you too will prosper

Ralph Waldo Emerson also saw that hope comes from capitalist engagement but only when the mind is able to reflect upon its work. Emerson distinguishes between the Brute Economy, in which labor and strength build vast empires of material longing only (i.e. its good to spend money to relieve us of the pain of 911), with the capitalist economy which employs intellect in an analytical expansion of labor, material and wealth. What Emerson says the Capitalist lacks is the moral and spiritual wisdom of the poet – “who acts upon nature with his entire force — with reason as well as understanding.”

The virtue of McCloskey’s work is that Commerce (and capitalism) share a common goal of enhancing our social order, instilling the hope that we might reshape “the city” into an image that is not of ourselves as we currently stand, but of the selves that we might one day hope to be, both individually and collectively. And that actions should be weighed and measured against both of these standards. Whether we segregate capitalists from capitalist poets, we nonetheless, come to the same conclusion as Emerson and McCloskey — that commerce creates the potential for humans to be good.

Which brings me back to 1-201. Do we really want good faith to be watered down by community constraints or is there a moment for reflection of the aspirational norms that commercial dealings might adhere to? I was much happier when good faith was simply “honesty in fact” without the burden of community differences, whatever that might mean — even if the aspirational view of good faith was nearly impossible to enforce.

To buy a copy of the Bourgeous Virtues, click the link:

http://rcm.amazon.com/e/cm?t=thelittab-20&o=1&p=8&l=as1&asins=0226556638&ref=tf_til&fc1=000000&IS2=1&lt1=_top&m=amazon&lc1=0000FF&bc1=000000&bg1=FFFFFF&f=ifr

Clearing the Table: Remember to like us on Facebook Reply

by • Announcements

A few links of interest this week:

Langston Hughes: The Ballad of the Landlord Reply

by • Book Reviews, Critical Race Theory, Property

One of the sad epithets of Property is the way claims to entitlements are used to shape human relations — particularly racial human relations.   Langston Hughes wrote about the unfair inequality between black tenants and white landlords in his poem, The Ballad of the Landlord published in 1940.  He tips us off as to who is ultimately victorious in societies eyes with his poem – the lazy landlord who collects rent without taking care of his property.  There has been a traditional thought that racial minorities negatively impact property values. This traditional belief was captured in the law’s reluctance to force property owners to financially improve the living conditions that minority groups lived in.  The ballad suggests that the landlord is victimized when the tenant takes out his aggression on him in the end.  Ironically, the landlord is victor in all things — the courts, the avoidance of basic human responsibility, etc…., while merely suffering a slight bruise at the hands of the person he has inflicted arguably more harm to.    Moreover, notice the response of the landlord when assailed — the assault by the tenant is not merely a response to protect his property; its a challenge to the basic security of the nation.  How little times have changed.

It was not until the 1960′s that the courts began slowly recognizing a remedy in the form of a warranty of habitability. One of the earliest expressions was from the Wisconsin Supreme court in a case titled Pines v. Perssion, 111 N.W. 409 (1961).  The case involved four University of Wisconsin students who leased a house that they later discovered had electrical, plumbing, and heating defects.  They later vacated the premises and brought suit to recover money already paid.  In the case, the court said:

To follow the old rule of no implied warranty of habitability in leases would, in our opinion, be inconsistent with the current legislative policy concerning housing standards.  The need and social desirability of adequate housing for people in this era of rapid population increases is too important to be rebuffed by that obnoxious legal cliche, caveat emptor. Permitting landlords to rent “tumble-down” houses is at least a contributing cause of such problem as urban blight, juvenile delinquency, and high property taxes for conscientious land owners.”

We know that the housing market (particularly the leasing market) tends to impact racial minorities with issues of adequate housing more than white people.  Part of the impact is certainly due to household economics.  For example Brophy et al, point out the disproportionate  number of minority households affected by lead poisoning in a note of their case book Integrating Spaces.  We’ve blogged about Integrating Spaces before here.  Brophy writes about disproportionate treatment of minorities in led poisoning cases:

According to a survey conducted from 1999-2002, “non-Hispanic blacks and Mexican Americans had higher percentages of elevated blood lead levels (1.4% and 1.5% respectively) than non-Hispanic whites (0.5%).  Among subpopulations, non-Hispanic blacks aged 1-5 years  and aged [greater than] 60 years had the highest prevalence of elevated blood lead levels (3.1% and 3.4% respectively).

These facts only make Langston Hughes’ poem The Ballad of the Landlord all the more relevant.

Landlord, landlord,
My roof has sprung a leak.
Don’t you ‘member I told you about it
Way last week?Landlord, landlord,
These steps is broken down.
When you come up yourself
It’s a wonder you don’t fall down.Ten Bucks you say I owe you?
Ten Bucks you say is due?
Well, that’s Ten Bucks more’n I’l pay you
Till you fix this house up new.What? You gonna get eviction orders?
You gonna cut off my heat?
You gonna take my furniture and
Throw it in the street?Um-huh! You talking high and mighty.
Talk on-till you get through.
You ain’t gonna be able to say a word
If I land my fist on you.Police! Police!
Come and get this man!
He’s trying to ruin the government
And overturn the land!

Copper’s whistle!
Patrol bell!
Arrest.
Precinct Station.
Iron cell.
Headlines in press:
MAN THREATENS LANDLORD
TENANT HELD NO BAIL
JUDGE GIVES NEGRO 90 DAYS IN COUNTY JAIL!

Epilogue

This poem made the news when a Virginia teacher requested an African American student read the poem “blacker.”  Kudos to the young man for refusing!

Two Book Reviews Reply

by • Book Reviews

Reflections of a book addict posted a review of Mr. Fitzwilliam Darcy: The last man in the known world by Abigail Reynolds. Here is a brief summary from the blog:

We find ourselves following Elizabeth and Darcy immediately after his initial proposal of marriage to her at Rosings Park. We all know of her famous rejection, perhaps the most stinging line in the entire novel, “”I had not known you a month before I felt that you were the last man in the world whom I could ever be prevailed on to marry.” It carried all the bubbling resentment that Elizabeth held against Mr. Darcy once she learned of his involvement with Bingley’s abrupt separation from Jane. However, what if she never got to utter those famous words? What if mistaking Elizabeth’s silence for acceptance, Darcy kissed her? What if this kiss was witnessed by Colonel Fitzwilliam? How would their marriage work with a complacent Elizabeth and a deeply in love Darcy? Thanks to the imaginative prose of Ms. Reynolds, we can see just that.

Bookpeople’s Blog posted a review of Jennifer Dubois’s A Partial History of Lost Causes. Again, from the blog:

Aleksandr’s story begins in Leningrad in 1979, where he dreams of becoming a chess champion. Irina initially knows of Aleksandr because her father, an avid chess player, was a fan. We’re with Aleksandr as he moves into the world of Cold War era chess matches, and beyond into underground politics and the dangerous world of Russian politics under the reign of Vladimir Putin.

Nerd Fight! Nerd Fight!: The Bizzaro World Battle of Constitutional Interpretation Reply

by • Comics, Constitutional Law, Nerd Fights, Scholarship

Mike Post and Saul Cornell are having a nice round about with each other.  Over at the Faculty Lounge, Saul Cornell critiqued Mike Post’s Constitutional originalism; Post responded in his post Historian Cure Thyself; finally Cornell responded back by referring to the type of scholarship as belonging in the Bizzaro world of Superman Comics.

Cornell wrote:

This is a model of scholarship that belongs in the Bizzaro world of   Superman comics.   Although the amount of   deeply researched and intellectually sophisticated legal scholarship continues to grow and vastly out numbers  this type of  Bizzaro  originalist scholarship, the legal academy is clearly in crisis and Rappaport’s post is a symptom.    Originalism has become a vast scholarly echo chamber.  Originalists cite each other’s work as authority, invite each other to conferences largely dominated by other originalists, publish each other’s papers in their own student edited journals without peer review, and then blog about the paradigm shifting quality of their own work and that of their friends!   I am sorry if my posts have seemed unduly harsh or not collegial, but the system is broken and it will never be fixed unless we acknowledge that “something is rotten in the state of Denmark.”

While I love academic nerd fights as much as the next guy, I am really intrigued by the reference to Bizzaro world as a referent to Post’s scholarship.  (I know, I just upped the nerd ante significantly).   I wonder if Mark White has any thoughts on Bizzaro world as an referent to interpretive principles.

Pikes Creek and Twain’s The Dandy Frightening the Squatter Reply

by • Uncategorized

In my Property Seminar, we have been considering property entitlements in various frameworks.  Part one of the Seminar we considered the way we think property entitlements are formed — looking at Constitutional traditions of entitlements, natural philosophy, and utopian narratives, amongst other sources.  Part two of the seminar considered entitlements that sound (or smell) a lot like property, but which we are reluctant to call property — the aroma of property as I called it.  Yesterday, we started Part three which I have titled “The way we talk about Property.”  The first selection of our three week discussion will be Willard Hurst’s classic Law and the Conditions of Freedom in the Nineteenth Century United States.  

As you know, Hurst begins his discussion with the Pikes Creek Settlers:

One day, in February of 1836, in the scarce born village of Pike Creek on the southeastern Wisconsin shore of Lake Michigan, Jason Lathrop – Baptist Minister, school teacher, boarding house proprietor, and civic leader — set up on a stump a rude press of his own construction and with ink, which he had made himself printed a handbill setting for the record of the organization meeting of “The Pike River Claimant’s Union… for the attainment and security of titles to claims on Government lands.

The settlers whose union this was had begun to move into the lands about Pike Creek beginning in the summer of 1835.  They were squatters; put less sympathetically, they were trespassers.  They might not lawfully come upon the lands before the federal survey was made, and this was not completed in this area until about February 1, 1836; they might not make formal entry and buy until the President proclaimed the sale day, and Presidents Jackson and Van Buren withheld proclaiming these newly surveyed lands until 1839; they might not establish claims by pre-emption, for the existing pre-emption law expired by limitation in June 1836, and was not immediately renewed because of objections to speculator’s abuse.  These were formidable legal obstacles.

Hurst goes on to describe how the settlers’ set up “governments” in the form of claims associations, with elected officials to resolve conflicts amongst themselves, since the United States government did not recognize their presence in the space.  From the Pike’s Creek association, Hurst draws several conclusions about the tenor and direction of policy and the role of law thereunder. Hurst’s narrative suggests that the squatter was not necessarily an outlaw, but rather an additional force that helped shape the movement of law through its path in the nineteenth century.  In this period, Mark Twain wrote his first published short story, The Dandy Frightening the Squatter.  To be sure this is not a major story, but, as we know, focus only upon the major stories and characters often cause us to miss much.   Here is the story:

About thirteen years ago, when the now flourishing young city of Hannibal, on the Mississippi River, was but a “wood-yard,” surrounded by a few huts, belonging to some hardy “squatters,” and such a thing as a steamboat was considered quite a sight, the following incident occurred:

A tall, brawny woodsman stood leaning against a tree which stood upon the bank of the river, gazing at some approaching object, which our readers would easily have discovered to be a steamboat.

About half an hour elapsed, and the boat was moored, and the hands busily engaged in taking on wood.

Now among the many passengers on this boat, both male and female, was a spruce young dandy, with a killing moustache, &c., who seemed bent on making an impression upon the hearts of the young ladies on board, and to do this, he thought he must perform some heroic deed. Observing our squatter friend, he imagined this to be a fine opportunity to bring himself into notice; so, stepping into the cabin, he said:

“Ladies, if you wish to enjoy a good laugh, step out on the guards. I intend to frighten that gentleman into fits who stands on the bank.”

The ladies complied with the request, and our dandy drew from his bosom a formidable looking bowie-knife, and thrust it into his belt; then, taking a large horse-pistol in each hand, he seemed satisfied that all was right. Thus equipped, he strode on shore, with an air which seemed to say “The hopes of a nation depend on me.” Marching up to the woodsman, he exclaimed:

“Found you at last, have I? You are the very man I’ve been looking for these three weeks! Say your prayers!” he continued, presenting his pistols, “you’ll make a capital barn door, and I shall drill the key- hole myself!”

The squatter calmly surveyed him a moment, and then, drawing back a step, he planted his huge fist directly between the eyes of his astonished antagonist, who, in a moment, was floundering in the turbid waters of the Mississippi.

Every passenger on the boat had by this time collected on the guards, and the shout that now went up from the crowd speedily restored the crest-fallen hero to his senses, and, as he was sneaking off towards the boat, was thus accosted by his conqueror:

“I say, yeou, next time yeou come around drillin’ key-holes, don’t forget yer old acquaintances!”

The ladies unanimously voted the knife and pistols to the victor.

What do we make of Twain’s story, one which has been suggested is steeped in factual occurrence.   First, notice the two juxtapositions of the characters.  The Dandy we might say represents ordered society.   Twain gives us some hints of his disposition, stating he strode towards the squatter with “an air that seemed to say the hopes of a nation depend on me.”  He is equipped with the tools that enable order.  Yet, the Dandy engages in an act specifically designed to create disorder — he engages in a violent act.   The squatter, on the other hand, seems rather complacent, even passive at first, when confronted by the Dandy.   But, when faced with the option of fleeing or asserting his right to stand his ground, he asserts it meeting violence with violence.

Second, the words used by the Dandy demonstrate his belief in his power and authority — even when used for personal gain. Moreover, the words of the Dandy are subject to nonsensical illusion — when ever has a barn door required a key hole?  The squatter’s only words, on the other hand are used to remind the Dandy not to tread on areas without his friends.   Perhaps this line is used to intimate the government’s relationship with squatters.

Finally, there is a narrative of progress versus non-progress.  The Dandy, as a city slicker as one commentator has referred to him, against the squatter, or a hick bumpkin.  The bumpkin winning at the city slicker’s own game suggests the continued importance in the emerging republic of honesty and justice prevailing.

Its an interesting story and the context helps build the library of materials we think about in the formation of legal systems.Image curtesy of UNC Library American South Digitalization Project, Twain’s life on the Mississippi.