The Devil and Tom Walker — A Property Tale 4


I want to thank Warren, Patrick, Allen and Mai-Linh  for having me here at the Table.

Washington Irving’s The Devil and Tom Walker has been exemplified as a an example of Irving’s use of folklore in constructing narratives of context.  Most writers and commentators focus on the karma-istic nature of the story, the faustian detail (devil story), or the role of greed.   But the Devil and Tom Walker is a property story.  Yes — its about, at its core, the capacity of property to shape relationships amongst people.  A few areas of intersection emerge in a property world.    We see the conflict between entitlements that are respected and those that are not. In fact, as the last assignment for the semester, I am having my students read the Devil and Tom Walker.  These are some of the things I want them to see.  Today I want to point out how landscapes and their surroundings in The Devil and Tom Walker are intertwined in the property world.

The beginning of the story tells us that there are two property conflicts that will shape the story.  We learn that the Pirate Kidd has stashed gold in the hills amongst the trees in an inland swampy area under the watchful “guardianship” of the devil, “as [the devil] always does with buried treasure, particularly when it has been ill-gotten.”  We also learn that Tom Walker and his wife lived in a state of conflict over the things that might be termed their “earthly treasures.”  The wife hid things as they were acquired (like the eggs laid by the hen) and Tom pried about to discover her secret hoards, causing fierce conflicts over what Irving tells us should have been “common property.”  These conflicts left their marks on Tom’s face from time to time, though no one ventured to interfere with their business.

We also get an early glimpse of the poverty in which they lived — poverty which was common amongst their peers.

They lived in a forlorn looking house, that stood alone and had an air of starvation. A few straggling savin trees, emblems of sterility, grew near it; no smoke ever curled from its chimney; no traveller stopped at its door. A miserable horse, whose ribs were as articulate as the bars of a gridiron, stalked about a field where a thin carpet of moss, scarcely covering the ragged beds of pudding stone, tantalized and balked his hunger; and sometimes he would lean his head over the fence, look piteously at the passer by, and seem to petition deliverance from this land of famine. The house and its inmates had altogether a bad name.

Their Property, it seems, began to mimic the desolate nature of their souls.  Their home, like them, was forelorn.  The story does not tell us that Tom or his wife had children, but their property reflecting their nature suggests they were sterile, producing no fruit.  Moreover, the house was unwelcoming — there was no warmth either by fire or welcoming nature and no “traveller stopped at its door.”  The house became anthropomorphasized, at least as it reflected its two inhabitants, similar to the House of Usher in Poe’s tales, or the House of the Seven Gables from Hawthorne.

As Tom went walking one day, through the land, he came upon an area known amongst the common people as a dim place. Tom stops for a rest amongst a great tree and uncovers an indian skull with an ax embedded within it.  The place was known to be one where Indians performed incantations and made sacrifices.  It was a place where the sacred and the profane met.  But Tom was not one to be trifled with such stories.   Here, the story tells us a couple of things.  First, Tom perceives himself differently from the common people.  Common people believe in the mystical nature of the place which shapes the entitlements of people to enter; but not Tom.  Tom’s view of property then is shaped by what we would term entitlements, rather than propriety.  This is exemplified when Tom encounters the devil after kicking away the skull he has unearthed.

“Let that skull alone!” said a gruff voice….

He scowled for a moment at Tom with a pair of great red eyes.

“What are you doing in my grounds?” said the black man, with a hoarse growling voice.

“Your grounds?” said Tom, with a sneer; “no more your grounds than mine: they belong to Deacon Peabody.”

In Tom’s view, the Devil has no right to exclude Tom from the property.  Its only Deacon Peabody, whose entitlement is legally proper — that is respected by the white community.  In this end, it does not matter that Tom does not have an entitlement to the property.  All that matters is that neither does the devil, and from where Tom sees the world, his entitlement is probably better anyway.  Similarly, when Tom learns that the Devil is hewing trees (which represent the souls of the great men of the town), Tom asks what right did the devil have to tear down the trees.  And the Devil responds: “”The right of prior claim,” said the other. “This woodland belonged to me long before one of your white faced race put foot upon the soil.”

There is an irony in the claim of first title that emerges in the discussion between Tom and the Devil.   Tom does not respect the right of the native American’s to occupy the land.   He believes the entitlement is only proper with Deacon Peabody — an opinion which was consistent with the prevailing worldview as title goes.  See Johnson v. M’cintosh for example.  Ironically, Tom seems to accept the Devil’s account when he learns that the devil is not merely native american, but rather absorbs the dark matters across all cultures.   At this, the Devil has trumped Tom’s view of entitlement drawing on a greater source of right, than that which Deacon Peabody claimed his right — the actual right of first occupancy.

Similarly, the question of who has the rights to the chattels on the property are shaped by how Tom and the Devil perceive the entitlement to the wooded area. The Devil tells Tom of the treasure that falls under his protection.   At first, Tom is skeptical of the Devil.  In fact the story tells us that Tom was a “hard-minded fellow” and did not at all fear the devil and asked for proof that what the devil said was true.”  As the story proceeds, we see Tom does ultimately deal with the devil (I am going to cover Tom’s and his wife’s encounters with the devil in part II) and takes possession of the gold.  But what is important is how Tom perceives the Devil’s entitlement to the gold.  The Devil tells Tom that the only way to find the gold is through the Devil, who has hidden it so that none may find it.  As Tom prospers with the Devil’s gold, he begins to think about how he can cheat the devil out of his gold.

Once again, Tom defers to entitlements. His solution is to appeal to the what he believes can conquer the devil — zeal and devoutness.   Once again, relating the property course to this work, we see the American perspective shaped by how entitlements are created.

Some Questions for Students from the Devil and Tom Walker

1. How does Tom’s perception of the entitlements to the forest land shape his interactions with “Old Scratch?”

2. Does Tom’s lack of respect for the entitlements shape the way he respects the things found on the land? Compare the Skull with the Trees, with the Treasure.

3. Considering the reasoning of Justice Marshall in Johnson v. M’Insosh, how should we understand entitlements to the property in the forest.  Could Johnson v. M’Intosh be consistent with Devil’s entitlement to the forest land?

4. How should disputes relating to various chattels be resolved in relation to the Skull, the Trees, the Treasure?  Consider Pierson v. Post, Ghen v. Rich, Popov v. Hayashi, Keeble v. Hickeringill, and NAGPRA.   Does it matter if the Devil’s entitlement isn’t legitimate?

5. How does Property shape the various relationships in the story?   Tom and the Devil; Tom and his wife; Tom and Deacon Peabody; the Devil and Mr. Peabody?

6. Are there entitlements we should respect, regardless of their legal enforceability?

Are there other things that you would ask?  Please post comments below.

Forthcoming — The Devil and Tom Walker: A Property Tale — The Relationships of People to Property.  

Hemingway to Pound: “If there was any justice in this world, you would have gotten the Nobel Prize. You’ll get it yet. I was damn sore.” Reply


 

Following yesterday’s correspondence between Melville and Hawthorne, today I am posting the reading of a letter by Ernest Hemingway to Ezra Pound.  The Yale Library gives a nice lead in to the letter here.   There is also a project titled the Letters of Hemingway.

As the story goes, Hemingway met Pound in Paris in the early 1920’s.   Hemingway taught Pound how to be a boxer, while Pound taught Hemingway how to write. Hemingway spoke of Pound on other occasions.  In 1925 he wrote: “He defends [his friends] when they are attacked, he gets them into magazines and out of jail. He loans them money. … He writes articles about them. He introduces them to wealthy women. He gets publishers to take their books. He sits up all night with them when they claim to be dying”

 

The Five Blessings of Reading 3


Thanks to the HogsHead Blog, I stumbled on this wonderful post by Jenna St. Hillaire reviewing a piece by former BYU Magazine Literary Reviewer Richard H. Cracoff titled No Good Place to Stop.  Both pieces are well worth your time in full.   I would like to comment on three points that are made across the pieces.

Cracoff lists five blessings of reading.  I am going to expound on three of these:

Books enable us to see outcomes where we presently see only possibilities; solutions where we presently see only dilemmas; direction where we presently see only impasse.

I think the way we teach law leads to the conclusion that the law is imagination-limited.   Lawyers out there, let’s be honest — we train you to stop using your imagination early on, from the way we teach you to write, to the procedural role that precedent plays to the procedural process of separating facts from law.  I think its quite obvious to say, there is just not a lot of room for imagination to flourish.  Imagining outcomes where there were only possibilities requires the capacity to see the world as it is, and then turn it just a hair to alter the perspective a bit.  Literature’s capacity to highlight this imaginary problem solving capacity is something that the law curriculum needs more of.  This is one reason why students love the course — it asks them to do what is instinctual — to imagine a different possibility.

Books help us to process, order, and understand our personal experience and gain perspectives on others’ lives.

I have written other places that the law school process is as much about inward inspection as it is about learning how to be a lawyer – the ability to put miles on one’s soul and to encounter different ideas.  One stereotype of legal education is that we create conflict oriented lawyers.  I’m not sure that this stereotype is accurate — but I am also willing to concede it might be.  Law schools certainly create individuals who are more comfortable with conflict than other disciplines.  I think the greater problem is that we do not spend enough time harnessing empathy and understanding — key traits necessary to diffuse conflict.  Literature does so naturally.

 Books enable us to live more lives than the one allotted and allow us to experience impossible adventures.

Finally, one thing that literature accomplishes is it allows us to be cultivated to our potential as humans — it allows us the opportunity to be better people. I have talked in the past about the destructive allure that the garden in the rear view mirror poses.  That the bulk of the biblical narrative is moving away from the garden in the wilderness, and moving towards the city.    We get, by reading literature, to choose — are we more like a Willie Stark, a Judge Irwin, or a Jack Burden; A Severis Snape, Belletrix LeStrange or a Lucius Malfoy;  a Jay Gatsby, Nick Carroway, or a Tom Buchanan.  We get to choose the garden, the city, or a city with a garden in its midst.  Literature presents us choices of humanity, to shape our own existence after.   Largely we do so through the formation of empathy in conversation with other people. From St. Hillaire’s post:

[The blessings of reading are] about empathy, self-ordering, and finding solutions all bring quite a bit of weight to bear on our interpretations of Harry Potter. Much of fan discussion and literary interpretation has focused on the ways in which Harry helps us become better people (John Granger’s comments about being “trained in the stock responses” come to mind) and on understanding and loving the Other; also, Rowling’s own Harvard address spoke of “the power to imagine better” primarily through empathy.

May we read well for the lessons that continue to cultivate our imaginations and humanity.

Memory, Sluts and Barbers — How we talk about…. Reply


Yesterday, I posted a comparison of the role that labeling plays in the Handmaid’s Tale and the current contraception debate.  A few days ago, I posted on Flannery O’Connor’s short story The Barber.  Today, NPR posted a new story  Slut: The other four letter word, that connects these two posts in a way I had not originally imagined — the role of memory in associating language.  (Is it possible that someone at NPR reads the table?).    From the story:

And like other dirty words, “slut” besmears whomever it’s applied to in earnest, particularly when it’s simply ridiculing or discrediting someone. It trails all those repellent associations, along with sister words like “hot,” “cheap” and “trashy” that populate the titles of porn videos.

Whether you’re somebody who rejects the very idea of that stigma or somebody who takes it very seriously, it’s disturbing to hear it evoked so wantonly. And however we think of the word now, we can’t help recalling the casual cruelty of the middle-school lunchroom where we first learned how vicious it could sound, even though we had only the vaguest idea of what it was about.

I suspect that that memory is another reason why people found Limbaugh’s remark so offensive. It told us more than we needed to know about what he was thinking. “What does that make her? It makes her a slut, right?” — as if we were all back in eighth grade, sneaking a smoke with him in the stairwell.

The writer is dead on.  There are certain words that are used because they have the innate ability to travel back in time, thereby bringing to the current discussion all of the context and anxiety that the past has brought.  Whether the word is Mother hubbard, slut, prostitute, mud-blood, or other, there is a way in which language somehow becomes a means of incorporating the past.

This semester, I am teaching a seminar on Property law.   We started by discussing the foundations of property entitlements, and have considered what I have termed the aroma of property — things that we want to treat like property, but are reluctant to call property.   Starting next week, we will read three short books in a section I have called “How we talk about Property” with a focus on memory.   It seems that the way we remember things often is a more powerful referent than the way they actually were.  Language is critically involved in that process.  Labeling, as a primary act of language, is one way of remembering the past by creating large categories of agreeable or disagreeable referents.

“You ever tried to argue with a barber?” 1


Flannery O”Connor had a way of writing irony.   She, like other southern writers like Warren, Faulkner, and Clancy, understood that Southern relations are rarely only about authority or correctness — they are about ironic structure, which may raise issues of authority or correctness, but exists as a distinctive ptolemaic of the Southern mind.  Irony — like the lonely companionship in Warren, or the role of poor authority in Faulkner.  This tension of southern ironic structure is best exemplified in southern race relations — where class structure dictates ones capacity to speak.  We have seen this tension in the past as well as our present.  Consider the following clip posted by my friend Eric Fink.

The shouts in the audience “go home,” the threat that any other outburst would result in an arrest…”   all point to this ironic structure.   Individuals are given a voice as long as they are a part of the structure.  If they are not a part of the structure, then no matter how loud their voice may be, its unheard.   And therefore has no capacity for challenging the structure.  Thus, the structure is only challenged from within — an impenetrable quagmire asking citizens to place financial concerns below justice and rightness.

This ironic structure shows up in O’connor’s short story The Barber.  There,  a college professor (probably in Georgia) finds himself embroiled in a dialogue over several visits about the impending Governor’s election.  The discussion of the candidates is centered around race – one candidate is perceived by the audience to be a racial progressive, while one candidate is a status quo candidate.   The story though, is threaded around two people who are entitled to debate the merits of the structure, and one person who is impacted by the structure, but has no voice (nor appears to want one).  The Barber and his friends are foils that are responding sharply against the candidate that challenge the status quo.

Clearly, the Barber and his companions represent the types of people that educated persons like O’Connor (and I presume most people that read this blog) struggle to engage.  The Barber and his companion’s believe that the progressive candidate represents change.  They ask the college professor “are you a Mother Hubbard?” — an allusion to one that seeks to change the status quo.  [Old Mother Hubbard is a nursery rhyme  believed to refer to King Henry VIII's desire to divorce his wife Queen Katherine of Aragon so he could marry Anne Boleyn -- a significant change in social and property relations if allowed.  As the story goes, the King is the Dog, the Cupboard is the church, and the bone is the divorce.   Thus, "Old Mother Hubbard, went to the Cupboard to get her poor doggie a bone.  When she got there, the Cupboard was bare, and so the poor doggie had none."]  The Barber’s companions also refer to the progressive candidate as a “Boy Blue” another nursery rhyme reference, this time to someone that gloats or toots one’s own horn — ["Little Boy Blue, come blow your horn..."].  Thus, two sticking points in general for the literati — people that avoid change for change sake, and people that accuse those seeking change of merely boasting about their own worth or being braggarts.

This story is where O’Connor is at her best.   Throughout the story, its the college professor (and not the Barber and his companions) that plays the fool.  He finds himself arguing with an audience that won’t listen.  He is corrected by his audience who seem to understand the economic stakes he has up for grabs with the election better than he does.  And in other places its the Barber that reminds the college professor to “think” and to use his “horse sense.”  Finally, though, we understand how obtuse our College Professor is when he is confronted by his own useless task.  Having spent the night writing a “systematic analysis” for why voting for his candidate is a good idea, he presents his work to a colleague — Jacob, referred to throughout the story as a thoughtful yet elusive figure [characters think they see him, but can't seem to find him, and his opinion is referred to as, well, inexact].   Jacob, having read our professor’s analysis says:

“Well,” Jacobs said, “so what. What do you call yourself doing?”

“Defending myself against barbers,” he said. “You ever tried to argue with a barber?”

“I never argue.”

“That’s because you don’t know this kind of ignorance…. You’ve never experienced it.”

“Oh yes I have,” Jacobs snorted.

“What happened?”

” I never argue.”

“But you know you’re right.”

“I never argue.”

“Wel, I am going to argue.  I’m going to say the right thing as fast as they can say the wrong.  It’ll be a question of speed.  Understand, this is no mission of conversion; I’m defending myself.”

Our fool, on his errand is disappointed and reverts to violence at the end, shoving the barber away — and foolishly runs out of the barber shop with his cape flapping and shaving cream dripping off of his face.

The ironic structure is the presence of one who is persistently in the shadows of the ignorance, and does not seem to give any indication of caring. George is the african american shop-boy that cleans up for the barbers.   George, unlike our Professor, is profoundly impacted by these larger social issues.   Asked at one point who he’d vote for, George says “I don’t knows if they gonna let me vote.”  And then says, “I’m gonna vote for Hawkson,” the candidate the Barbers supported.  George is a character the none of the white participants respect.     In another exchange, the Barber asks our college professor if he would like to teach both white and black students.   When the professor says he’d teach everyone, the question is then given to George:

“How’d you like to go to a white school, George?” the Barber shouted.

“”Wouldn’t like that,” George said.  We needs sommo powders.  These here the las in the box.”

The Barber and his companions treat George as a fools foil, asking George to validate their opinions and contradict the professor, and then satisfactorily sitting back as George does so.  Ironically, so does the professor.  But George understands the social dynamic better than anyone.  He understands that disobedience means not having a job — from his perspective, going to a white school is not better than fetching white powders.  He understands that going to white schools, while probably better, makes him no better off and likely results in greater violence to him.  And George, understands that people like the professor, whether well-intentioned or not, have less at stake than he does.

Which brings us back to the video of the protestors in North Carolina.  These young people understand the stakes.  They appreciate the risks.   They engage the ironic structure with a voice that does not want to be heard .  Kudos.

Reading Twice or Thrice or more Reply


What books do you read over?  There are a handful of books that I turn back to now and again, like old friends.   I’ve read All the King’s Men (7); The Great Gatsby (3); The Hand Maid’s Tale (2) ; Billy Budd (3);  and a handful of short stories that never fail to captivate my attention.   I am also rereading right now The Hobbit and plan to reread Crime and Punishment, A Confederacy of Dunces, and the Harry Potter Series.

So what books do you reread?   What makes a book the kind that you want to reread over and over again?  Post your comments below.

“What would a night student want with Law and Literachure?” or Law and Literature’s Virtue Reply


I have been wrestling with something for a while.   The question is often raised in my environment, do lawyers need law and literature, law and religion, or law and…. to be good lawyers?  For that matter does Law and Literature actually foster better lawyers?   The simple answer is “I don’t know.”

Oh we can talk about the nature of reading and writing (which we do).  We can hypothecate upon cultural dimensions of law that are reflected in literary traditions (which we do).  We can work on their writing skills (which we do quite a bit).  But, I can’t tell you that a single lawyer that has crossed the thresholds of my law and literature class ever was a better lawyer because of it.  But what I can tell you is that making them better lawyers is not my primary goal.

A few years ago, I interviewed with a law school in the South and during the interview one of the faculty members asked me “What would a night student in [insert Southern city] want with a course like Law and Lit-er-a-chure.” (Spelling intended to mimic the pronunciation).  I was frankly taken aback and responded (and can remember my response word for word): “I don’t know.  I mean I don’t know why a night student would want to take law and literature.  But they should.   Because law and literature challenges the basic presumptions upon which we build our daily existence by allowing our imaginations to freely function.”  (That answer did not get me a job). So let me explain further.

Law and Literature’s virtue is the rest of the legal curriculum’s down fall.  As students memorize the rule against perpetuities, or try to decipher the battle of the forms in contracts, law school constricts their imaginary capacity — leaving them with the distinct belief that every problem has a distinctive legal solution.  I shutter to say this but I worry that we actually create human beings who are less capable of engaging in human endeavors after a few years of law school than had we never gotten a hold of them in the first place.

Law and Literature’s virtue then, is a reminder to our imaginary roots — to the return to literature about human relations, rather than literature that governs human relations.  Law and literature teaches us to question the basic suppositions of life — that questions may be hard, and answers may be hard to come by.   Law and literature teaches us that ambiguity is not such a bad thing, and that every problem does not deserve an answer, but rather deserves simply time — like time turning the pages of a book, or time writing prose that seems plain and mystical at the same time.  That would be my answer today to the question — night students need Law and Literature because their imaginations have stopped, and they need time to allow them to grow. (And I am still certain this answer would definitely not get me a job).

Everyone needs a stop in Rivendell, every now and then… Reply


A bit of introspection, if you will this morning…

I find myself immersing in a strange topic lately: exiles.  Really, its not so strange.  After all, one of my name sakes perceived the world in which he grew up as one filled with exiles — wanderers who were cut off from the world they occupied while never really entering another.  But notably, its not just my namesake’s work that draws me to the exiles dilemma.  In about two weeks, I will chair a panel gathered to discuss the import of the exile in foreign literature; I will also present a paper considering Robert Penn Warren, the Southern Exile and the law in a paper I have tentatively called Re-entering the Loneliness.  And in a few months, I will leave the west, and return to my home in the South, permanently I hope, though one can never tell these days.

I waffle between feelings of excitement and worry.   Returning home is always exciting, and yet as a good student of the Bible knows, the prophet never can quite go home.  He’s learned too much on the outside.  He’s like Cass Mastern after Louisiville, Jack Burden after California, OfFred after the discovering the Latin writing on the wall…  Things happen that render people exiles in the familiar places they occupy.  And home never quite feels like home felt before you left.

A few days ago, I picked up the Hobbit.   Its been twenty years (or more) since I read the Hobbit and I determined to read the book again before the movie comes out later this year.  I am struck by the presence of Rivendell — at the beginning of the epic quest and at the end.  It is a place that affords unmitigated rest against the impending tide of uncertainty — uncertainty entering upon an adventure, and uncertainty in coming home.  Rivendell is a place where both the edges of fear are perceived, but not confronted or recalled. In the words of Tolkien:

Now it is a strange thing, but things that are good to have and days that are good to spend, are soon told about, and not much to listen to; whiles days that are uncomfortable, palpitating, and even gruesome, may make a good tale, and take a good deal of telling anyway.

I’m not sure if my queries and endeavors into exiles (and my returning to a home that doesn’t quite feel like home) will afford a stop in Rivendell.  I sure hope so, though I doubt there will be very many words used to describe it.  Most likely, my words will describe the things along the way, and Rivendell will remain a quiet moment – a sanctuary in the tumultuous life of an exile.

Call for abstracts: Edited volume on law and social economics Reply


Call for abstracts for edited volume

Law and Social Economics

To be edited by Mark D. White, College of Staten Island/CUNY

Planned for inclusion in the “Perspectives from Social Economics” series from Palgrave Macmillan

By its very nature, law is a social enterprise concerned with values such as justice, dignity, equality, and efficiency, but the economic approach to law (or law and economics) focuses on the last goal to the exclusion of the rest. Social economics emphasizes the importance of ethical values to economic theory, practice, and policy, but it has engaged very little with legal studies (or law and economics).

In 1993, Steven Medema published his article “Is There Life Beyond Efficiency? Elements of a Social Law and Economics” in the Review of Social Economy, in which he laid out various ways in which social economics could contribute to the economic analysis of law. In the twenty years since his article appeared, however, few have picked his baton, much less run with it.

This book is an attempt to rectify this situation. Proposals for chapters are welcome on any aspect of law-and-economics on which social economics can make a contribution, and are welcome from economists, legal scholars, and scholars from related disciplines.

Possible topics include:

  • Social-economic approaches to the various categories of legal studies, such as
    • Private law (tort, contract, property)
    • Criminal law
    • Procedure
    • Jurisprudence
  • Methodological critiques of mainstream economic approaches to the law, such as
    • Maximizing conception of individual choice
    • Efficiency criterion for evaluating laws and institutions
    • Application of game theory, behavioral economics, or experimental economics to legal issues
  • Examination of the history of law-and-economics scholarship
  • Suggestion of topics neglected by mainstream law-and-economics

Proposals should include name and affiliations of all authors, tentative chapter title, and abstract, and should be sent to Mark D. White at profmdwhite@hotmail.com by April 30, 2012. Tentatively, first drafts of chapters will be expected by November 30, 2012, with final drafts due by February 28, 2013.