The Law and Sacred Spaces Part II: Monumentalism Reply


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


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

 

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


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

Langston Hughes: The Ballad of the Landlord 1


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!

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


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.

California Law Review – Circuit issue on Law and the Humanities in the Legal Curriculum Reply


If you have not yet seen the California Law Review – Circuit’s publication of the panel from the AALS annual section meeting on Law and the Humanities, it is well worth some time. The panel was titled ““Excavating and Integrating Law and Humanities in the Core Curriculum.”    I really enjoyed all of the pieces.  I particularly enjoyed Bret Asbury’s piece using humanities pieces to illustrate and expound on civil procedure for first years.  Likewise, Rose Cuison Villazor’s Teaching Property Law and What it Means to Be Human was also great.

Hat tip to Law and Humanities Blog for the pointer.

Panel on Deportation, Refugees and Exile Reply


This past week I participated in the Association for the Study of Law, Culture and the Humanities annual meeting.  Warren gave a great wrap up here, and Mai-Linh described the panel that we both participated on here. Below, I am posting the abstracts from my fellow panelists.  I will post a separate piece outlying my presentation.

The panel was chaired by Frank Snyder of Texas Wesleyan, who did a yeoman’s job of coordinating the panel.  It included myself presenting Re-Entering the Loneliness: Robert Penn Warren and the Exile;  Beth Caldwell of Thomas Jefferson Law School, presenting Clinging to Precedent in a Changing World: The Fiction that Deportation is not a Punishment;  and Quyen Vo, a very impressive student at UC Berkeley, presenting National Interest and International Legal Obligations in British Refugee Asylum.  Here are the abstracts in the order presented.

Beth Caldwell, Clinging to Precedent in a Changing World: The Fiction that Deportation is Not a Punishment

The Supreme Court decided that deportation is not a punishment in 1893. The decision was influenced by overt racism that characterized American society at the time. Since then, our societal norms have changed. However, the decision that deportation is not a punishment has remained the same. Although this core holding has not evolved over time, the Supreme Court reasoned in Trop v. Dulles that this characterization may be “highly fictional.” In 2010, the Court acknowledged that deportation may in fact be the most severe penalty resulting from a criminal conviction. The language the Court employs to discuss deportation seems to characterize deportation as a punishment. However, the Court has not explicitly reversed its 1893 decision that deportation is non-punitive. This paper explores the evolution of the case law and attempts to reconcile the Court’s evolving reasoning with its decision not to reverse or reconsider the ultimate question of whether deportation is a punishment. This inquiry is particularly important because deportation would be subject to review under the Eighth Amendment if it were defined as a punishment.

Quyen Vo, National interest and International Legal obligations in British Refugee Asylum, 1933-1951

 This paper considers how the British state’s refusal to acknowledge formally an asylum seeker’s refugee status affected the scope of British refugee asylum between 1933 and 1951; in the former year the first international refugee treaty emerged under the League of Nations, and in the latter a more comprehensive refugee convention was established under the United Nations. This paper argues that the British state sought to determine the entry of asylum seekers and rights of ‘refugees’ territorially present using primarily the national immigration law, which sought above all to protect and promote the national interests. By examining shifting boundaries between national immigration law and international refugee law, this paper highlights distinctions between citizen and alien, legal and illegal, and inclusion and exclusion that lie at the heart of British refugee asylum. More broadly, the analysis offers a richer historical understanding of the British state’s attitudes toward international refugee law.

Marc L. RoarkRe-entering the Loneliness: Robert Penn Warren and the Exile

How do exiles return to community? As Randy Hendricks has demonstrated, Robert Penn Warren uses as a principal literary figure the wanderer to describe his theories of racial relations, his concept of language, and his own place in the southern narrative. This paper explores Robert Penn Warren’s conceptions of the exile as tragic hero in the context of the law. Importantly, Warren’s wanderer’s always return home, a process that requires legal acceptance of the wanderer’s place in society

Race Nuisance and American Jazz 1


Today in Property we discussed how nuisance is shaped by racial attitudes of the day.  We are using Al Brophy, Alberto Lopez and Kali Murray’s Integrating Spaces: Property Law and Race case book as a supplement to Dukeminier.  One of the cases we covered today was Truehart v. Parker, 257 S.W. 640 (Tex. Civ. App. 1923).  The case involved an Jazz Hall in San Antonio, Texas and a white property owner adjacent to the operation.   As Amy Leigh Wilson suggests in her article A Unifying Theme or a Path to Degregation: The Jazz Influence in American Property Law, 55 Alabama L. Rev. 425 (2004), jazz was commonly feared.  As one writer said, Jazz was – among other things – a century-long political conversation between Black Americans and White Americans. It was a musical, intellectual and spiritual conversation within a highly politicized social context whose axes were language, race and power.  Thus, the court’s describes of the sounds emanating from the Jazz Hall is this fashion:

No self-respecting citizen with a home in which lives his wife and children could fail to be disturbed by the proximity of a place of assemblage at night of men and women, who to the accompaniment of screeching pianos, high keyed violins, and blaring saxophones, emitting the strains of barbaric jazz, more discordant than tom-tom or Chinese gong, transform rest and slumber into a nightmare, and render hideous the hours set apart by nature for their enjoyment.

This passage draws on a larger point made by Lawrence Levine in his article Jazz and American Culture, published in The Journal of American Folklore (Vol. 102, No. 403 1989).  There he argues that the words Jazz and Culture became at the turn of the twentieth century negative referents for each other:

One could understand what culture was by looking at the characteristics of jazz, and reversing them.  Jazz was, or at least seemed to be, the new product of a new age; Culture was, or at least seemed to be, traditional — the creation of centuries.  Jazz was raucous, discordant; Culture was harmonious, embodying order and reason.  Jazz was accessible, spontaneous; Culture was exclusive, complex available only through hard study and training.

Jazz was openly an interactive, participatory music in which the audience played an important role, to the extent that the line between audience and performers was often obscured.  Culture built those lines painstakingly, establishing boundaries that relegated the audience to a primarily passive role, listening to, or looking at the creations of true artists.  Culture increased the gap between the creator and the audience; jazz narrowed that gap.  Jazz was frequently played in the midst of noisy, hand-clapping, foot-stomping, dancing and gyrating audiences.  Those who came to witness culture in art museums, symphonic halls, opera houses, learned what Richard Sennett has called “silence in the face of art.”

Jazz obtained a particular association as dissident music.  From Wilson’s comment:

 In 1931, F. Scott Fitzgerald dubbed the twenties “the Jazz Age,” a title that succinctly expresses the post-war revolt which typified the decade. This revolt occurred primarily in the homes of middle-and upper-class white Americans, where jazz was drawn on to cope with evolving lifestyles.  More specifically, white youths used this music to champion social rebellion and critique stringent adult standards.  While this movement eventually changed Americans’ identity and values, it did not go unchallenged. The prohibition of liquor sales in 1920 signaled that reactionary opponents would counter the “jazz movement” throughout the decade. Fearful of the emerging behavior of emboldened youths, Americans “condemned jazz as a symbol of the violation of tradition and morality.”

Jazz’s appeal to the white youth of the 1920s coupled with its aggressively irreverent and suggestive sounds made it a topic of controversy. Jazz music “was condemned by conservatives as the downfall of America’s white youth.” Newspapers, magazines, and outspoken leaders of the day made quite a case for the corruptive effects of jazz: A minister declared that “in 1921-22 jazz had caused the downfall of 1,000 girls in Chicago alone.” Henry Ford attacked “the waves upon waves of musical slush that invaded decent parlors and set the young people of this generation imitating the drivel of morons.” John McMahon, writing in the Ladies Home Journal, condemned “The Jazz Path to Degradation,” asked “Is Dance Ruining Our Youth?” and yearned for a return “Back to Pre-War Morals.”
Today, Jazz has reached a cultural affinity, being described by one writer as like simultaneously hearing all the footsteps on the sidewalk of a city – feet shuffle, run, stroll, trip, and strut.  Its unordered and unruly.  And for people accustomed to order and ruliness, its, perhaps, a nuisance.
So what are we to make of cases like Truehart and the role of nuisance.  In the Truehart case, it is difficult to perceive the court in anyway other than Jazz-hostile.   Here the court evaluates claims by the plaintiffs and the evidence posed by the defense:
The dance was known as the Silver Leaf Club. No one swore that the music and voices in the hall could not be heard in the home of appellant.  Several witnesses swore that they could be heard., and there was ample testimony to show that the street in front f appellant’s house was nightly almost blocked by automobiles  and that their honking and other noises were very disagreeable and disturbing. All of the witnesses for the [dance club] were either patrons of the dance hall, or women there to control the female dancers and others interested in the affairs of the dance hall.  They were not disturbed of course.  They went there to dance, to hear the roar of the drums, and the music of the fiddle and the saxophone.   It was either their business or their pleasure to be there and they were not disturbed.  The people who lived in their homes in the immediate vicinity , however, swore, and no one contradicted them, that until the din and noise had died out because the dancers had dispersed, sleep was driven away and the night robbed of its rest and comfort.  To those that business or pleasure had lured to the dance, it was a terpsichorean dream of pleasure, while to the unfortunate denizens of the homes nearby, it was a terrible nightmare, and while the dancers chased the fleeting hours with flying feet to the sensuous strains of dance hall music, the residents tossed upon sleepless beds.
Notice that the court unquestionably accepts the testimony offered on behalf of the homeowners, while suggesting that the testimony on behalf of the club is somehow less than reliable.   There is no perception that the homeowner’s have any stake at all in this matter, other than the stakes that we would all find acceptable — preserving the night for the natural confines of rest. Moreover, the opinion seems to highlight cultural elitism — referring to Jazz and dancing as a “terpsichorean dream of pleasure” seems to suggest a nefarious role for Jazz and dance hall adherents.   It also speaks to the political presumptions made about Jazz regardless of who was there — white or black.   The progressive leanings of Jazz adherents bucked directly against and were counter-cultural to the primary activity of the culture — quiet, rest and sleep.  Part of the fear of Jazz stemmed from the fear of the unknown — which was highly symbolic given the way Jazz is played.  “Jazz,” observed Louis Armstrong, is music that’s never played the same way once….”

So perhaps, nuisance, like culture is merely a referent for the things we accept or don’t accept.   One student this morning described nuisance as “anything I don’t approve of, as long as enough people agree with me.”  That does not seem to be too far off.

Image curtesy of MassCommons.

Mark Twain to Walt Whitman: “Happy Birthday” 1


Continuing our linking to Yale Library’s podcasting of letters from American Authors, today we post Mark Twain’s letter to Walt Whitman on his 70th Birthday.  To celebrate, many of Whitman’s close acquaintances wrote to him to commemorate.  A copy of the transcript of the letter is here.

One of the interesting statements that Twain makes is the expectation that things will be developing rapidly very soon.  He writes to Whitman: “Yes, you have indeed seen much — but tarry yet a while, for the greatest is yet to come. Wait thirty years, & then look out over the earth! You shall see marvels upon marvels added to these whose nativity you have witnessed; & conspicuous above them you shall see their formidable Result — Man at almost his full stature at last! — & still growing, visibly growing while you look.”  Twain was correct — thirty years from the letter would see technology like the world never knew.  Unfortunately, that technology was that of war.

Image of letter, sent to Whitman from Twain.   Hat tip to The Centered Librarian.

Magic and Muggle Toys as Metaphors of Translation: How Harry Potter makes a case for Literature inclusion in the legal curriculum Reply


Last week, Warren wrote about the blessings of reading as a dialectic navigating imaginations within the law school curriculum; and I wrote two pieces describing how at least one short story could be used to better explain property — See Devil and Tom Walker I and Devil and Tom Walker II.  Today I want to draw on metaphors from Harry Potter to further this case that the law curriculum needs literature infused within it.

Throughout the Harry Potter series there is divide between muggles, muggle things, and the magical world.  For example, the ministry of magic has an office for the misuse of muggle artifacts in which muggle things are confiscated when they have been bewitched.  Similarly, muggles (or non magical folk) are not permitted to use magical things, at the cost of having their memories wiped in the event they do stumble onto magical things.  And yet, despite these stark separations, we see instances in which muggle things are used in the magical world.  Radios are used to communicate with members of the order in the final book to advance a magical agenda.  The passage way to one’s magical education begins at a muggle train depot (King’s Cross), though again with a separate platform secured behind the veil of a wall.  And Magical folk wear muggle clothes, in different degrees of success to blend into the larger  muggle culture.  See for example, Harry, Hermione, and Ron in the last film, compared with Bob Ogden, the ministry official from the chapter House of Gaunt in the Half Blood Prince.

Whatever these various commingling are in the series, they stand as tools of translation between two different groups that respect divisions, even though individual members might prefer toleration.  What exactly is to be translated?  John Granger suggests that the magical world helps translate for the reader (ironically a muggle world) the basic and transcendent characteristics of love, mercy, forgiveness, fear, etc…).  JK Rowling made this point in an interview with the Atlanta Journal Constitution when she said Witchcraft is just a metaphor for this other world of possibilities, beyond convention, that the mind can reach. As said by one Harry Potter Commentator,

This is a summary of a central premise in Granger’s work, that the “symbols, themes, and meaning touch the human heart with eternal verities and realities for which contact the human heart is designed and hungers” (234). I think you can understand the idea pretty easily. Harry Potter gets to some kind of Truth (Love, forgiveness, fear, etc) that we are all designed to long for.

Two worlds normally separated are joined by their ability to translate through the various interactions that do not necessarily involve their individual members.

So what can we learn from this lesson of metaphor translation in the law school curriculum. Those of us in the law and literature movement have long thought about the process of learning law as a process of translation.  There is, though, a tendency to treat the leaning of legal skills as distinctive from the learning of perspective skills.  Most agree both are important — but not important enough to merge together.

One of the prevailing themes underlying law students’ entry to law school today is the unpreparedness to understand the art of translation.  The ability to identify metaphors in a text, understand their relevance to context and meaning, and then cull out the underlying authorial meaning is directly relevant to what we ask students to learn how to do beginning in their first substantive courses.  One way of helping students understand that the process is one that relates to their prior work is to include works of fiction in the substantive courses as a means of bridging their legal education with their undergraduate training. Thus, the process of working through a legal text draws upon familiar modes of interpretation that students have been exposed to prior to entering law school.

Likewise, many works draw implicitly on legal themes as underlying conflict in their stories.  Courses like Property draw on theories of possession and entitlement that did not first originate in law, but in philosophical texts — texts which were as influential in literature as they were in law.  History and context afford background materials for texts like William Gaddis’ A Frolic of his Own, which implicitly raise critiques of the torts system.  As Warren has written in the past, Roger Malvin’s Burial forces students to confront norms in a context outside of law — norms of fairness, just deserts, and equality.   In other words, fiction translates the law not only through process but through substance as well.

These materials may serve as means of translating dense subjects to students who are not yet prepared to translate law accurately.  Perhaps, muggle radios sending messages of magical occurrences could be just as helpful to transmit messages of legal translation.