Law Culture and Humanities Reply

I am at the Association for the study of Law, Culture and Humanities in Las Vegas this weekend. There is a lot to like here!

Let me point out a few presentations that I have attended yesterday and today:

There was a wonderful panel titled: To Kill a Mockingbird: Reflections on the film. Amongst the presentations Sue Heinzelman’s talk “We don’t have mockingbirds in Britain do we?” was a powerful reflection on the Mockingbird’s role in defining racism against the intuition that we might not think we are racist. Also on the panel were Austin Sarat’s and Martha Umphrey’s work “Temporal Horizons: On the possibilities of Law and Fatherhood in To Kill A Mockingbird;” and Ravit Reichman’s work “Dead Animals.”

Another great panel yesterday afternoon was titled Memory, Slavery, and Civil Rights, with presentations by Mark Golub (“Remembering Mass Resistance to School Segregation”); Mai-Linh Hong (“Get your ass-phalt Off of my ancestors!: Legal and cultural boundaries of slave cemeteries”); and SpearIt (“Criminal Punishment as Civil Ritual: Making Cultural Sense of Mass Incarceration”).

Also on the agenda yesterday was our own Allen Mendenhall presenting: “Holmes and Dissent.”.

More on today’s proceedings later today.

Simone de Beauvoir in Harlem, 1947 Reply

There are myriad ways one might celebrate today’s holiday in honor of Martin Luther King, Jr. On my Facebook page, for example, I suggested we learn about—or recall—the other remarkable leaders of the civil rights movement, some of whom were mentors to King and others of his generation, establishing institutions and informal communication networks that served as the socio-cultural and political seedbed for the germination and later flourishing of the civil rights movement. I mentioned in particular such individuals as Bob (Robert Parris) Moses, Ella Josephine Baker, and Fannie Lou Hamer, among those ably introduced in Robert Payne’s brilliant book, I’ve Got the Light of Freedom: The Organizing Tradition and the Mississippi Freedom Struggle (1995). I also had the impudence to ask that we take time to recall the life and work of Malcolm X as well, recommending Eugene Victor Wolfenstein’s Malcolm X and the Black Revolution (1981). Indeed, there’s a work that offers a provocative comparison of the lives and ideas of Malcolm X and King, James Cone’s Martin & Malcolm & America: A Dream or a Nightmare (1991). Alas, both the prize-winning biographer of Fannie Lou Hamer, the historian Kay Mills, and the (post)Freudo-Marxist social theorist and psychoanalyst Wolfenstein, recently passed away.

Here I thought I’d do something different and share a few passages from Simone de Beauvoir’s (1908-1986) journal that detailed her thoughts and feelings upon venturing into Harlem during a visit to America. Beauvoir came to the States in January of 1947, keeping a fairly “detailed diary of her observations which was published in France in 1948 as L’Amérique au jour le jour” and to little notice several years later in England, and in English, as America Day by Day. The book was published (by the University of California Press) yet again with a new translation by Carol Cosman in 1999 and an inviting foreword by one of our nation’s best and more prolific historians, Douglas Brinkley (which first appeared in the New York Times Book Review in 1996). Beauvoir was by now a well-known existentialist philosopher and writer with a public identity as a cosmopolitan French intellectual tied to yet distinct from her lifelong companion, Jean-Paul Sartre. She is also rightly regarded as one of the seminal theorists of contemporary feminism.

Brinkley writes that,

“with the passage of time, America Day by Day emerges as a supremely erudite American road book—that distinctive subgenre based on flight of fancy rather than flights from economic hardship, as in John Steinbeck’s Grapes of Wrath. In broader sociological terms, her critique outpaces William Least-Heat Moon’s Blue Highways: A Journey into America [1983]. In the realm of pure prose style, it easily transcends Henry Miller’s The Air-Conditioned Nightmare [1945]. And, for my money, in the field of European highbrow loathing of the cruder aspects of our democratic experiment, it is preferable to Charles Dickens’s haughty American Notes for General Circulation [1842]. [….]

A reader is struck not only by the meticulous descriptive passages on American history and geography but also by Beauvoir’s ability to encapsulate our national psyche (‘Optimism is necessary for the country’s social peace and economic prosperity’) and to comment so deftly on its shortcomings (‘even people of goodwill…refuse to articulate clearly the current conflict between justice and freedom, and the necessity of devising a compromise between these two ideas; they prefer to deny injustice and the lack of freedom’). [….]

Clearly a voyeur of America’s transient underbelly, Beauvoir’s able, like George Orwell in Down and Out in Paris and London [1933], to penetrate the haze and blue smoke of our nation’s tenderloin districts deeply enough to offer detached insights into desolation row. In Chicago with [Nelson] Algren as her guide, she learns firsthand about the world of morphine addicts and petty thieves, murderous gangsters, and midnight cops. ‘America is a box full of surprises,’ she writes, intoxicated by her walks on the wild side. [….]

Beauvoir’s peripatetic journey by automobile, train, and Greyhound bus took her from coast to coast and back, and illuminating sections of the memoir are devoted to Hollywood, the Grand Canyon, Reno, New Orleans, Las Vegas, and San Antonio. Always amused and exhilarated by the lapdog friendliness of urban and rural folk alike, she is also flabbergasted that these same good-natured people embody the volatile, schizophrenic mixture of ‘strictness and hypocritical license.’ An eternal rebel, she has an uncanny eye for the shallow extravagances of American culture and an abolitionist’s rage at the evil of segregation south of the Mason-Dixon line. While San Francisco and Chicago are celebrated in America Day by Day, other cities get scorched: ‘Williamsburg is one of the sorriest shams to which I’ve ever fallen victim,’ or ‘I dearly hope I’m never fated to live in Rochester.’ [….]

For women, and men, who want to experience vicariously Jack Kerouac’s open road with less machismo romanticism and more existential savvy, America Day by Day, hidden from us for nearly fifty years, comes to the reader like a dusty bottle of vintage French cognac, asking only to be uncorked.”

From American Day by Day:

“Of course, I want to get to know Harlem. It’s not the only black neighborhood in New York. There’s an important black community in Brooklyn, three or four areas in the Bronx, another called Jamaica in Queens, and few more on the city’s outskirts. In New York itself one finds neighborhoods here and there where black families live. Until 1900, other than the one in Brooklyn, the most important black community in New York was situated near West Fifty-seventh Street. Harlem’s apartment buildings were originally built for white tenants, but transportation was inadequate at the beginning of the century, and landlords had difficulty renting apartments in the eastern end of the district. At the suggestion of a black man, Philip A. Payton, who was involved in the rental business, blacks were offered the apartments on 134th Street. Two buildings were filled this way, and soon more. At first, the whites didn’t perceive this invasion of black people; when they tried to stop it, it was too late. Blacks gradually rented all the available apartments and began to buy the private houses that were going up between Lenox and Seventh Avenue. Whites then felt justified in moving; as soon as one black family was spotted in a block of buildings, all the whites fled as if they were running from the plague. The blacks soon took over the whole district. Social and civic centers were formed; a black community took shape. Harlem expanded spectacularly after 1914.

Those among the French who get down on their knees to worship all-powerful America adopt all its prejudices even more obsequiously than Americans do. One of them says to me, ‘If you like, we’ll go through Harlem by car; you can go through Harlem by car, but you must never go on foot.’ A bolder Frenchman declares, ‘If you’re determined to see Harlem, in any case stick to the larger avenues. If something happens, you can always take shelter in the subway. But above all avoid the small side streets.’ And someone else tells me with a shiver that at dawn some whites were found in the gutter with their throats cut. In the course of my life, I’ve already come across so many places where right-thinking people declare you could not go that I’m not too impressed. I deliberately walked toward Harlem.

I walk toward Harlem, but my footsteps are not quite as carefree as usual; this isn’t just a walk but a kind of adventure. A force pulls me back, a force that emanates from the borders of the black city and drives me back—fear. Not mine but that of others—the fear of all those whites who never take the risk of going to Harlem, who feel the presence of a vast, mysterious, and forbidden zone in the northern part of their city, where they are transformed into the enemy. I turn the corner of one avenue and I feel my heart stop; in the blink of an eye, the landscape is transformed. I was also told, ‘There’s nothing to see in Harlem. It’s a corner of New York where people have black skin.’ And on 125th Street I indeed discover the movie houses, drugstores, stores, bars, and restaurants of Forty-second or Fourteenth Street; but the atmosphere is as different as if I had crossed a chain of mountains or the sea. Suddenly, there’s a swarm of black children dressed in bright shirts of red-and-green plaid, students with frizzed hair and brown legs chattering on the sidewalks. Blacks sit daydreaming on the doorsteps, and others stroll with their hands in their pockets. The open faces do not seem fixed on some invisible point in the future but reflect the world as it is given at that moment, under this sky. There is nothing frightening in all this, and I even feel a new kind of relaxed gaiety that New York hasn’t yet given me. If I suddenly came upon Canebière [in southern France] at the corner of rue de Lille or Lyon, I would have the same pleasure. But the shift from my usual surroundings is not the only vivid aspect. Nothing is frightening, but the fear is there; it weighs on this great popular festivity. Crossing the street is, for me, like crossing through layers and layers of fear filling those bright-eyed children, those schoolgirls, those men in light suits, and those leisurely women.

One Hundred Twenty-fifth Street is a border—there are still few whites in evidence. But on Lenox Avenue, not a face that isn’t brown or black. No one seems to pay attention to me. It’s the same scenery as on the avenues of [downtown] Manhattan, and these people, with all their indolence and gaiety, seem no more unlike the inhabitants of Lexington Avenue than the people of Marseilles seem unlike the residents of Lille. Yes, one can walk on Lenox Avenue. I even wonder what it would take to make me flee, screaming, toward the protective entrance of the subway. It seems to me I would have as much difficulty provoking such an attack as I would provoking murder or rape in the middle of Columbus Circle in broad daylight. There must be some image of orgies going on in the heads of right-thinking people; for me, this broad, peaceful cheerful boulevard does not encourage my imagination. I glance at the small side streets: just a few children, turning on their roller skates, disturb the lower-middle class calm. They don’t look dangerous.

I walk on the big avenues and in the small side streets; when I’m tired, I sit in the squares. The truth is, nothing can happen to me. And if I don’t feel entirely secure, it’s because of that fear in the hearts of people who are the same color as I am. It’s natural for a wealthy bourgeois to be afraid if he ventures into neighborhoods where people go hungry: he’s strolling in a universe that rejects his and will one day defeat it. But Harlem is a whole society, with its bourgeois and its proletariat, its rich and its poor, who are not bound together in revolutionary action. They wan to become part of America—they have no interest in destroying it. These blacks are not suddenly going to surge toward Wall Street, they constitute no immediate threat. The irrational fear they inspire can only be the reverse of hatred and a kind of remorse. Planted in the heart of New York, Harlem weighs on the conscience of whites like original sin on a Christian. Among men of his own race, the American embraces a dream of good humor, benevolence, and friendship. He even puts his virtues into practice. But they die on the borders of Harlem. The average American, so concerned with being in harmony with the world and himself, knows that beyond these borders he takes on the hated face of the oppressor, the enemy. It’s this face that frightens him. He feels hated; he knows he is hateful. This thorn in his conciliatory heart is more intolerable than a specific external danger. There are fewer crimes in Harlem than on the Bowery; these crimes are only symbolic—not symbolic of what might happen but of what is happening, what has happened. Minute by minute the men here are the enemies of other men. And all whites who do not have the courage to desire brotherhood try to deny this rupture in the heart of their own city; they try to deny Harlem, to forget it. It’s not a threat to the future; it’s a wound in the present, a cursed city, the city where they are cursed. It’s themselves they’re afraid to meet on the street corners. And because I’m white, whatever I think and say and do, this curse weighs on me as well. I dare not smile at the children in the squares; I don’t feel I have the right to stroll in the streets where the color of my eyes signifies injustice, arrogance, and hatred.

It’s because of this moral discomfort, not timidity, that I’m happy to be escorted this evening to the Savoy by Richard Wright; I’ll feel less suspect. He comes to fetch me at the hotel, and I observe that in the lobby he attracts untoward notice. If he asked for a room here, he would surely be refused. We go eat in a Chinese restaurant because it’s very likely that they wouldn’t serve us in the uptown restaurants. Wright lives in Greenwich Village with his wife, a white woman from Brooklyn, and she tells me that every day that when she walks in the neighborhood with her little girl, she hears the most unpleasant comments. And what’s more, while we are looking for a taxi, men dart hostile looks at this black man with two white women. There are drivers who deliberately refuse to stop for us. After this, how could I claim to mingle peacefully in the life of Harlem? I feel myself stiffen with a bad conscience. While Wright buys tickets at the door of the Savoy, two sailors speak to Ellen and me, the way all sailors the world over speak to women at the doors of dance halls. But I’m more embarrassed than I’ve ever been before. I’ll have to be offensive or ambiguous—my very presence here is equivocal. With a word, a smile, Wright sets everything in order. A white man couldn’t have found just this world, this smile, and I know that his intervention, so simple and natural, will only aggravate my embarrassment. But I climb the stairs with a light heart: this evening Richard Wright’s friendship, his presence at my side, is a kind of absolution.”

[cross-posted at the Ratio Juris blog]

Law & Literature: A Basic Bibliography 7

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  • Weisburg, Richard H. Poethics, and Other Strategies of Law and Literature. New York: Columbia University Press, 1992.
  • White, Edward J. Commentaries on the Law in Shakespeare. Honolulu, HI: University Press of the Pacific, 2002.
  • White, James Boyd. When Words Lose Their Meaning: Constitutions and Reconstitutions of Language, Character, and Community. Chicago, IL: University of Chicago Press, 1984.
  • White, James Boyd. Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law. Madison, WI: University of Wisconsin Press, 1985.
  • White, James Boyd. Acts of Hope: Creating Authority in Literature, Law and Politics. Chicago, IL: University of Chicago Press, 1994.
  • White, R.S. Natural Law in English Renaissance Literature. Cambridge, UK: Cambridge University Press, 1996. 
  • Williams, Melanie. Empty Justice: One Hundred Years of Law, Literature and Philosophy. London: Cavendish, 2001.
  • Wilson, Luke. Theaters of Intention: Drama and the Law in Early Modern England. Stanford, CA: Stanford University Press, 2000.
  • Winter, Steven L. A Clearing in the Forest: Law, Life, and Mind. Chicago, IL: University of Chicago Press, 2001.
  • Wishingrad, Jay, ed. Short Fictions: Short Stories About Lawyers and the Law. New York: The Overlook Press, 1992.
  • Woodmansee, Martha and Peter Jaszi, eds. The Construction of Authorship: Textual Appropriation in Law and Literature. Durham, NC: Duke University Press, 1994.
  • Wright, Nancy E., Margaret W. Ferguson, and A.R. Buck, eds. Women, Property, and the Letters of the Law in Early Modern England. Toronto: University of Toronto Press, 2004.
  • Yoshino, Kenji. A Thousand Times More Fair: What Shakespeare’s Plays Teach Us About Justice. New York: Ecco/HarperCollins, 2011.
  • Ziolkowski, Theodore. The Mirror of Justice: Literary Reflections of Legal Crises. Princeton, NJ: Princeton University Press, 2003 ed.
  • Zomchick, John P. Family and the Law in Eighteenth-Century Fiction: The Public Conscience in the Private Sphere. Cambridge, UK: Cambridge University Press, 2007.
  • Zurcher, Andrew. Spenser’s Legal Language: Law and Poetry in Early Modern England. Woodbridge: Boydell & Brewer, 2007.

I welcome suggestions for additional titles. And I will send along a Word doc. version upon request. (At a future date this compilation will be made available at the Ratio Juris blog for download as a Word doc.)

William Bartram’s Travels and the Erotica of Nature 1

I’ll limit my discussion of Bartram’s cognitive originality to some finer points made by Michael Gaudio, whose article, “Swallowing the Evidence,” is a mostly on-the-mark interrogation of Bartram’s persistent use of metaphor.

Gaudio writes that Bartram’s Travels, with its imagery of swallowing, mouths, and voids, calls into question Enlightenment aesthetics while signaling glaring absences in the putatively public sphere. Although Gaudio argues convincingly that Bartram’s imagery signifies an “Enlightenment view of the cosmos in which the natural and the social operate according to the same rational principles,” he privileges a political over an erotic reading, thereby reducing the text to a series of subversive patterns of visual perception. In fact, Bartram’s text is less about movement politics than it is about scientific or social politics (I’m strategically essentializing here—these spheres are neither mutually exclusive nor categorically absolute).

Travels describes a journey lasting from 1773 to 1777, arguably the most intense moment in American political history, yet Bartram makes no mention of the Revolution, the Continental Congress, the Declaration of Independence, or any other political signifier. As the war between Britain and America raged, Bartram rummaged through woods recording data and collecting specimens. He might have been interested in undermining Enlightenment ideals, as Gaudio suggests, but he probably was not keen on likening sink holes to doubts about the democratic project. A better reading would treat Bartram’s concave, hollow, and gaping imagery as vaginal and his nature aesthetics as sexual. Such a reading not only sheds light on Bartram’s aesthetic facility but also gives rise to a better reading of Bartram’s politics as understood through depictions of Natives, black men, or property-owning colonials. Gaudio is right to argue that, for Bartram, “the work of the naturalist is the recording of not only the visibility of nature’s surfaces but also the struggle that leads to that visibility,” but he is wrong to ignore the language of penetration and other pseudo-sexual insinuations. Attending to this sexual language might have allowed Gaudio to enlist Bartram in the “anti-Enlightenment” project in other, more interesting ways—for instance, by contrasting Bartram’s observations of Indian tribes with the unwarranted assumptions of Enlightenment thinkers who dismissed Natives as mere barbarians or worse.

Gaudio submits that because Bartram’s aim was to “exhibit the self-evidence of nature” and to “set the full presence of its surfaces before the viewer,” Bartram’s appeals were necessarily visual. That much, I think, we can grant. But Gaudio goes too far when he contrasts Bartram with Bacon by claiming that the latter employed “rhetoric of penetration” to peer beneath nature’s surfaces whereas Bartram looked precisely to nature’s surfaces because he preferred architectural forms to dissected taxonomies. Gaudio suggests, in other words, that Bartram seeks out rational forms, which share a visual logic, to show nature’s uniform and universal manifestations. Nevertheless, Bartram’s rhetoric (like Bacon’s) is rich in references to penetration. Gaudio’s formative analogy therefore does not stand up to close examination.

“Having some repairs to make in the tackle of my vessel, I paid my first attention to them,” Bartram says of a particularly cheerful morning, adding, “my curiosity prompted me to penetrate the grove and view the illuminated plains.” Similarly, Bartram speaks of “penetrating the groves,” “penetrating the Canes,” “penetrating the forests,” penetrating the “first line” of alligators, “penetrating a thick grove of oaks,” and penetrating “the projecting promontories.” All of this penetration flies in the face of Gaudio’s argument that Bartram’s “voids” signal the limits of Enlightenment thought. Rather than avoiding vocabulary of penetration, Bartram embraces it. Bartram may be interested in surfaces, but he is also interested in—one might say seduced by—what lies beneath. He even employs sexual innuendo and other erotic lexica to portray what lies beneath.

The sexual language in Travels serves to eroticize nature, which seduces with its enchanting if virginal charms. In a brilliant essay, Thomas Hallock speaks of botanic men (including William Bartram’s father, John) who turned “genteel ladies into fascinated subjects.” For these men, plants “served as a shorthand for intimate relationships that were transacted across vast space.” According to this logic, it follows that any “individual who interacts with the natural world takes on an ‘ecopersona,’ an identity or costume of manners that locates consumption of the natural within a given cultural code.” By ignoring the eros pouring forth from Bartram’s nature writings, Gaudio overlooks a very telling association between Native women, whom Bartram eroticizes, and nature, itself a sensual “organism.” More to the point, he misses Bartram’s odd constructions of eco-personae for Native women. Indeed, Bartram forges an association between nature and Native women in his “sylvan scene of primitive innocence,” which was “enchanting” and “perhaps too enticing for hearty young men long to continue idle spectators.”

In what Bartram calls a “joyous scene of action,” nature (read: passion) prevails over reason and European men are drawn helplessly—as if by Sirens—to the Native “nymphs” guarded by “vigilant” and “envious” matrons. The Native women are sensual and seductive because they seem in tune with Nature and the “Elysian fields.” In light of this analogy, Bartram speaks of Natives as “amorous topers,” “amorous and bacchanalian” dancers, amorous singers, and amorous and intriguing wives, just as he speaks of the “sweet enchanting melody of the feathered songsters” in their “varied wanton amorous chaces,” or of the “soothing love lays of the amorous cuckoo.” That is to say, Bartram effectively ties Native women to the carnal cravings of animal lust. For this reason, the desire to penetrate takes on a much stronger meaning than the one Gaudio describes vis-à-vis Bacon—it becomes not just about examinations of exterior surfaces but about the physical need and urge to thrust right through surfaces.

The land on and adjacent to a particular river “appears naturally fertile,” Bartram declares, “notwithstanding its arenaceous surface.” Surfaces can be deceiving, so Bartram digs deeper, so to speak, and identifies their sexual and reproductive possibilities. Similarly, he likens “many acres of surface” to a “delusive green wavy plain of the Nymphae Nelumbo,” a plant that represents sexual purity or virginity. In these and other instances, Bartram renders nature as a playground of erotic spaces for male pleasure. Simply put, Bartram’s nature is fertile and stimulates sexual arousal.

If, for Bartram, Native women were in harmony with nature and so were fertile and seductive—if they were hypersexualized—then Gaudio could have done far more with the vaginal motifs in Travels. Like countless others, he could have called into question the tropes, male gazing, and sexual power plays at work in the book and thereby achieved a “political” reading actually supported by the text. Gaudio is at his best when bringing to light metaphors that would seem easy to overlook, but his analysis fails for disregarding the obvious sexual and vaginal connotations evoked by these metaphors. At worst, his analysis fails for pivoting on a major assumption—that Bartram limited his analysis to surfaces and exteriors without regard to “the insides.” If anything, Bartram seems even more interested in “the insides” given his sexual renderings of a nature that invites penetration and carnal exploration.

–Allen Mendenhall

See the following articles for more reading:

Abrams, Ann Uhry. The Pilgrims and Pocahontas: Rival Myths of American Origin. Boulder: Westview, 1999.

Fischer, Kirsten. “The Imperial Gaze: Native American, African American, and Colonial Women in European Eyes,” in A Companion to American Women’s History. Blackwell Publishing, 2002.

Fleming, E. McClung. “The American Image as Indian Princess.” Winterthur Portfolio. Vol. 2 (1965: 65-81).

Gaudio, Michael. “Swallowing the Evidence: William Bartram and the Limits of Enlightenment.” Winterthur Portfolio. Vol. 36, No. 1 (2001: 1-17).

Hallock, Thomas. “Male Pleasure and the Genders of Eighteenth-Century Botanic Exchange: A Garden Tour.” The William and Mary Quarterly 62.4 (2005): 32 pars. 13 Oct. 2009 .

The Travels of William Bartram. Ed. Mark Van Doren. New York: Dover Publications, 1928.

Schoelwer, Susan Prendergast. “The Absent Other,” in Discovered Lands, Inventing Pasts. Yale University Press, 1992.

Thinking about the True History of the Kelly Gang: Billy the Kid, Jesus and Us. 4

So I have been feverishly working away on a Copyright article, but looking up from behind a starbucks table, I read with great interest Andrew’s post on the True History of the Kelly Gang.  How true it is that outlaws capture our imagination and do shape the law.   Eduardo Penalver and Sonia K. Katyal make this point brilliantly in their monograph Property Outlaws:  How Squatters, Pirates and Protestors improve the law of property.

But besides improving the law of ownership (which I agree it does), outlaws have different conceptual points of view for Americans.  Outlaws tell us quite a bit about what our culture thinks about the law. Two particularly telling outlaws are Billy the Kid and Jesus of Nazareth.

In Stephen Tatum’s Inventing Billy the Kid, the author notes that the Kid’s elusive character may render his subject almost indiscernible for historians.  Making the matter more difficult is the role Billy the Kid has played mirroring the American social dynamics of the time.  For instance, Tatum shows that in the earliest representations of Billy the Kid, the American need for order amidst changing industrial upheaval was reflected in a “satanic” kid hunted down and killed by a valiant law man. When America was unhinged by Government scandals and economic collapse  in the 1920’s and 1930’s, Billy the Kid was a defiant, individualist set amidst a tragic backdrop.  And in the 1950’s, Billy the Kid was used to reflect upon the distemper of collective middle class conformity, placing him “at odds with a society not worth redeeming.”  Indeed, Billy the Kid represents for America the perfectly ambiguous character — defiant when he has to be, oppressive when we need him to be, and all the while able to do so without necessarily articulating these traits.   Unfortunately Tatum’s analysis ends in 1981, leaving out the classically 1980’s Bon Joviesque Billy the Kid in Young Guns and Young Guns II. (Bon Jovi did play a part in the sequel, besides penning the movie’s anthem in true hair band style — “Blaze of Glory”).  Though I believe that the Young Guns movies perfectly identify the Kid with American Society — wandering, unsure of its identity, seeking to be known for something — (Just ask  Gen-X or Baby Boom fellows what its like to follow the Greatest Generation…).

In a fascinating way, Stephen Prothero makes the same points about Jesus of Nazareth in his book American Jesus: How the Son of Man became a Cultural Icon. From Thomas Jefferson’s wisdom-loving, parable saying nomadic purveyor of sayings, or its protestant’s desire to humanize Jesus by making him a moralist as opposed to a miracle worker following the Civil War, to the 1960’s free-love hippie LSD Jesus Christ Superstar, we seem to culturally appropriate narratives onto the life of Jesus which may or may not be accurate. But accuracy is not so much the point as identity.  Indeed, as Prothero shows, Jesus has been reimaged by virtually everyone –” protestants, catholics, pentecostals, jews, muslims, Hindus, gays, blacks, feminists, hippies, atheists, rappers; while Christian insiders have had the authority to dictate that others interpret Jesus, they have not had the authority to dictate how these others would do so.”  But more importantly, according to Prothero (and I agree) it probably does not matter that these images are accurate in regards to Jesus — a mystical figure who we will probably never truly know everything about– what’s more important is that they are accurate reflections of us.

In the same way that The True History of the Kelly Gang forces us to ponder the role of historical narrative in our search for cultural meaning, Billy the Kid and Jesus of Nazareth forces us to ask central questions of believability — this time, the question is whether we can believe ourselves and the cultural narratives we are telling rather than whether we believe their stories that we tell.

What other outlaw stories are there in Literature?   And please, enjoy the Bon Jovi Blaze of Glory Video — To have hair like that…. again…

Some Advice (and Demands) of New Law Students 3

I have decided that this year, I am going to include some advice and demands of my law students beyond the normal variety.  I have prepared a letter describing that advice.  What do you think? What would you add?  What would you take out?

As you begin your law study (and law career) things are moving quickly around you.    You are building new relationships, continuing old ones that will have to adapt to your new surroundings, and engaging in a life-altering, rigorous study of the legal discipline.  Some of you chose to be lawyers because of family.  Some of you chose to become lawyers for the money.  Some of you chose to be lawyers because of some meaningful interaction with the law some years ago.  Some of you chose to become lawyers to pursue justice.  Some of you had other reasons.  Whatever was the basis for your decision, I am glad you made it.   It shows that you are willing to take up a challenge.

Let’s be honest for a moment.  Some of you that start will not finish law school.  Some of you will decide that you would rather do something else.  Kudos to you for making that decision!   You came and tried the law and decided that it just wasn’t for you.  Frankly all of you come to law school without significant personal experience being a lawyer.   Its ok to decide that you do not want to be a lawyer.  Some of you will not be able to handle the rigors of law school’s academics.  Don’t get me wrong — we think you are capable.  But some of you will decide that other things are more important than engaging in the type of study that law school requires.  Some of you will face insurmountable obstacles that just don’t allow you to devote yourself to legal study.  Let me say right now: that’s ok too.   Some people are just not meant to be lawyers.   It may be because they have more important work ahead of them.  Or it may be that the timing is just not quite right at this moment.   Seasons of life change slowly, and often we do not obtain the perspective necessary to know whether we should have stayed with something or not until years down the road.  Don’t worry.   Do your best and make the best decisions you can.

Now for some advice and demands, if I may.

First, be diligent in your work. Law school can feel overwhelming.  Trust me, it is overwhelming.  But you can make it and you can succeed.   What you can’t do is just coast by.  Remember that you are sitting next to people every bit as smart and talented as you are.  For every minute that you are not working, someone else is working and gaining.   Maintain a discipline of devotion to your studies – force yourself to work hard and not accept shortcuts.   Treat this like a job.   Designate reading hours for each week and keep to your schedule like you are being paid to do so.

Every year, students ask me what supplements I recommend. And every year, my answer is the same: your textbook is a supplement to our class periods; your notes are a supplement to the textbook; and my lectures are a supplement to your inquiry into both.   Class supplements train your brain to be lazy in the disciplines of the primary things we do as lawyers – thinking.   When you purchase a supplement you are allowing someone else to think for you.   That will short-circuit your brain over time and leave you impaired. If you do choose to engage supplements, do so cautiously and in a very limited form.

Along those lines, don’t wait to begin your fidelity to diligence. Begin now with setting out the plans for how you think you will attack this course of study.  Two things about that.  First, don’t expect those plans to remain the same.  Be flexible and allow them to change as they need to in order to meet your study demands.  Second, don’t think that intelligence or other factors will make up for a lack of discipline.  There is a fable of a boy who owned a corn field.  Everyday he would wake up and say, I’ll hoe the corn tomorrow.   Finally, the corn grew up so tall that rot began to set in.   Still, the boy said, I will hoe my corn tomorrow.  In early September, an early frost came and wiped out the boy’s corn crop.   The moral of the story is start developing your work discipline now.  I can assure you, December will be here before you know it.

In maintaining your discipline, don’t assume that you will be taught anything. This sounds odd doesn’t it?  After all, you entered law school to learn from people, like me, who have had successful careers in the law.  Notice I did not say that you would not learn.  But law school is not a process in which you are given information to digest.  Rather, you must engage actively in the learning process.  Thus, expect that you will do a lot of self-learning, self-reflecting, and gain some understanding from that process.  When you come to class, we will challenge your learning and understanding, and hopefully refine it in a way that forces you to reenter your textbook and re-examine what you thought you learned. Thus, class can be at times a demoralizing and often frustrating time.  Be open to understanding and allow your Professors to challenge your knowledge.  Let me say, I know this is an exhausting process.  However, you will be a better law student, a better lawyer, and a better person by engaging in the type of discipline that assumes that you have created a base level of knowledge to work from.

Second, in your devotion to being diligent about work, communicate with those in your lives about what you are doing. Trust me, they do not want to hear it all.  Trust me, they will tell you to stop very often.  Rather than communicate about what you are learning, communicate about the process.  Be honest with them about what you like, what you hate, what you are scared of, and what you expect to be coming out of this process.  We often assume when we take on life-altering processes that everyone in our lives are on board for the change as well.  That’s not always the case.   Remember: You are the one that is in law school.  You are the one that is changing.  And you are the one with responsibilities and obligations to your professors and classmates.  Your significant other, your partner, or your family may not be on board completely.  You will find out soon enough.   The most important thing you can do is communicate with them about this process and what you expect all along the way.

Finally, don’t assume that law school is only about learning the law. It’s not, though a great deal of our time is spent doing so.  Law school, as part of the liberal education tradition, has a role in shaping you as a human being.  We are also a professional school in that you are being trained to enter a profession.   Part of being an engaged, and learned human, and being a member of the legal profession, is the ability to critically assess your knowledge and experiences against other people’s knowledge and experiences.  On a personal level we call this self-awareness.  When applied to the law, we call it policy.   Let’s be clear about both.  In order to do well at being both a human being and at being a lawyer, you have to both know the subject and be able to assess where it is going and where it should go.  As a human, you have to know yourself to understand how to adapt.  In the law, you have to know the “black letter law” before you can assess where the black letter law will go.  Law school will do its share of teaching you not only the law, but how to critically analyze the law (and hopefully yourself too).  Don’t resist either part, and don’t assume you can do one without the other.

To that end, be engaged!  You will enjoy law school more, do better, and become a better thinker, and therefore a better lawyer.  You will be thrust into classrooms where there are people from many many different backgrounds and experiences.  Embrace those people, particularly the ones who are different than you.  Learn from them.   Allow your own beliefs and thoughts to be challenged, even the sacred ones.  Particularly the sacred ones! Trust me, if they are meant to stand the test of time, not even law school will overcome them.    Remember, law school, like every other hard venture you undertake will help you put miles on your soul – some of those miles include laughter, some include crying, and some, just are hard!

Because law school puts you in contact with so many different people, remember one key piece of advice and a demand if you are in my class – be courteous to everyone. Remember, your faculty, fellow students, and the staff that make this wonderful law school work are entitled to, and deserve your respect.   As trying as law school is, there is no excuse for discourteous behavior.   Little things matter – being on time to class, being prepared, saying thank you to staff members who assist you, speaking in proper tones – these things are very important.  As an NYU business professor has said, these things in and of themselves will not make you successful – but failure to master them will certainly hold you back and prevent you from achieving the great possibilities that no doubt your talent and intellect prepare you for!  As Ralph Waldo Emerson said: “There is always time enough for courtesy.”

And don’t confuse your Professor’s attempt to frustrate you or challenge your thinking as discourteous behavior. The same is true when we may show intolerance for laziness, lack of preparation, or inartful expressions.  All of these things are for your benefit.   Your Professors are interested in your development and success.   That should be the default assumption regarding any actions that your Professors take towards you.   Until there is evidence to the contrary (and I don’t mean your grade in a particular class) you should assume that your Professors (each one of them) are vitally committed to do whatever it takes to develop you as a law student, lawyer, and more importantly a human being.

And along the lines of courteous interactions, be helpful to everyone – including your fellow students. Share outlines and notes with each other.  Be a resource for each other.  Discuss together.  In short, be a community for each other.   I learned the most by helping friends understand.

Finally, a word of advice to those of you who are more successful than your peers.  Be humble about your accomplishments. Don’t brag.  Be measured and restrained in your accomplishments.  Trust me, there will be many opportunities to celebrate your well-deserved accolades.   However, boasting of your own accomplishments creates an atmosphere of distrust and disdain.  As Ralph Waldo Emerson once said, “The louder he spoke of his virtue, the faster we counted our spoons.”  Decide to believe that everyone, yourself included, are smart capable people.  Do not discount anyone.   Instead resolve to do your best and allow your successes, whether measured or great, to speak for themselves.

You are an accomplished group.  Welcome to the next phase of your life.  Embrace it.  Enjoy it, as hard as it may be.  Allow it to put miles on your soul.

Great Blog on Confederacy of Dunce’s Locales Reply

Check out this great blog I stumbled upon describing locations in John Kennedy O’Toole’s Confederacy of Dunces. I will have more to say about O’Toole’s masterpiece later, but I had to pass this on (particularly since I have spent the last twenty minutes immersed in Ignatius’s Ghost.  Enjoy.


On the “Environmentalists’ Dilemma” Reply

I’m grateful to Allen for bringing these thoughts to the table for discussion.

I suspect the portrait of the “environmentalist’s dilemma” is a bit exaggerated on both sides. It reminds me of the first vociferous “debate” in the environmental movement between so-called “Deep Ecology” and “Social Ecology” Greens (the latter largely the acolytes of Murray Bookchin). This debate was perhaps more imagined than real (insofar as it took place among a handful of writers and intellectuals and was less apparent ‘on the ground’), although it did reflect underlying tensions and questions within the Green movement having to do with the kinds of worldviews that inspired and motivated those engaged in environmentalist/ecological politics in the broadest sense. On one side, the more (loosely) spiritual-oriented folks were busy canvassing if not rummaging through the globe’s various worldviews for philosophical perspectives they believed evidenced a more holistic and harmonious metaphysical and ethical picture of mankind’s relation with the natural world; on the other side (and again, loosely), were those of Left and New Left vintage who understood the new ecological politics to emerge from within a tradition that was more beholden to the likes of Marx and Kropotkin or the Wobblies and the SDS, and thus were prone to carcicaturing their ecological counterparts as New Age whackos with irredeemably bourgeois sensibilities afflicted by historical amnesia utterly lacking in “true” socio-political and economic sophistication when it came to social analysis and understanding the dynamics of social change. There were truths to be learned from both camps, although egos and polemicizing served to obscure that fact (in time, both sides began to dismantle their character armour somewhat and the debate itself virtually vanished).

Robert E. Goodin’s book, Green Political Theory (1992) helps us to understand some of the reasons that animate the above debate as well as a more significant divide within “green political theory” and praxis. Goodin writes of a “green theory of value” that, in short, “provides the unified moral vision running through all the central substantive planks in the green political programme.” Conceptually and politically distinct but thought by many to strictly follow from this green theory of value is a “green theory of agency” that tells us how to go about pursuing the green theory of value(s). Goodin points out that part and parcel among those who concentrate their energies on the “agency” aspect of green politics are a belief in and commitment to the propogation of views revolving around choices of personal life-style, questions of New Age cosmology, and the desire for transformations of consciousness, views that tend to trivialize or crowd out more pragmatic and practical orientations and strategies that rely on conventional politics for the realization of the green theory of value. Those cleaving to such views make the price, so to speak, for subscribing to or endorsing a green politics too high for the vast majority of citizens and thus, in the end, prolong the realization of a green theory of value(s). Some years ago I wrote that while I thought Goodin was a bit hard on some of the “agency” folks, he made a compelling argument. On the other hand, he may not have sufficiently appreciated the very real obstacles presented by conventional politics for the realization of green values (this would be the position, say, of the late Rudolf Bahro or even the late Arne Naess).

The “economists” of the post would therefore be identical with or at least similar to the practical or pragmatic folks (including those willing to ‘dirty’ their hands in conventional politics) Goodin believes better capable of implementing green moral values, in other words, more likely than those “moralists” who, fewer in number, can be a bit too self-righteous or unrealistic in their advocacy of wholesale lifestyle and worldview (‘belief’) changes of the sort that could not, it seems clear, occur anytime soon, a fact with dire consequences if one is convinced of the necessity and urgency of the green political program.

In several respects, I think Goodin’s argument provided a way out of the impasse, in any case, it addressed questions of a more down-to-earth sort than those intrinsic to the theoretical and rarefied debate that took place between the deep ecology and social ecology greens and it made the larger point that “being green” did not strictly entail adopting wholesale the idiosynractic or unfamiliar worldviews of green intellectuals and movement leaders, nor did it mean adopting a radically new lifestyle on the order of the hippies and countercultural devotees of an earlier era.

It often seems to be the case that those who provide the vision and leadership of the green movement are more toward the “moralist” and “agency” end of the spectrum, for what has motivated their own idealism, activism and politics is often a conversion of some sort, to a new worldview (or the radical transformation of an existing one) and or a new lifestyle, the presumption or assumption being that it’s changes of THAT sort that are necessary for others to begin the turn toward ecological and environmental thinking and praxis. But to support and vote for green politics rarely requires such dramatic and wholesale changes among the masses. For us, the changes are more likely of a piecemeal kind (e.g., recycling, buying a more fuel-efficient car, less wasteful consumption decisions generally) and often at the ballot box (voting for a more environmentally sound politics that facilitates the progressive and wider adoption and realization of green values). And with regard to worldviews, this more often that not means people will come to simply modify their existing belief systems in ecological and environmentalist ways (see, for instance: Thus, in effect, we overcome the “environmentalists’ dilemma” on the ground, not unlike, at least in some measure and certain respects, Thoreau himself did.

With a brief nod to a literary dimension, it bears noting that “social ecologists” rightly took to task the ideas and tactics of those in the environmental movement who belonged to groups such as Earth First! (and the early writings of its co-founder, David Foreman), that wing of the movement farthest from a Gandhian-like practice of nonviolence (some would claim their praxis was nonetheless a species of nonviolence). These radical ecologists were avowedly inspired by the writings of Edward Abbey (e.g., The Monkeywrench Gang, 1975) who, while not accountable for their actions, most notoriously “eco-sabotage” (or ‘monkeywrenching’), seems to have endorsed them. Insofar as these actions were ‘underground’ (i.e., intentionally not public), and involved destruction of property or possible harm to living beings, they were understandably anathema to others in the environmental movement. Earth First! philosophy or political theory, such as it was, came dangerously close to if not actually espousing an ecological version of Malthusian Social Darwinism, the fundamental or representative ideas of which are enshrined in Paul Ehrlich’s writings (e.g., The Population Bomb, 1968) as well as Garrett Hardin’s formulation of “Tragedy of the Commons” idea (incisively critiqued by Partha Dasgupta, among others), alongside his later and more disturbing notion of “lifeboat ethics” (for a nice discussion of this variation on Malthusian themes, please see Robert C. Paehlke’s Environmentalism and the Future of Progressive Politics, 1989).

The environmentalist “economists” cited in the post are of course constrained in part by conceptual and value presuppositions and assumptions that heretofore have helped define their discipline (cf. S.M. Amadae’s Rationalizing Capitalist Democracy: The Cold War Origins of Rational Choice Liberalism, 2003, and works by Philip Mirowski), especially insofar as they are trained in and beholden to essential tenets of neo-classical economics. Alas, this kind of economics has become increasingly obtuse when it comes to forthrightly addressing questions of ethics or morality (environmentalist or otherwise). Amartya Sen details some of the historical and conceptual shortcomings of the discipline in his book, On Ethics and Economics (1987). In addition to informing his colleagues of how economics  can benefit from a more intimate relation with ethics, Sen makes a subsidiary point regarding the benefits that follow from ethical thinking being informed by a basic knowledge of economics. Another important work by way of addressing the moral shortcomings of contemporary economics as a social science discipline and thus useful for environmentalists of an economics suasion, is Daniel M. Hausman and Michael S. McPherson’s Economic Analysis, Moral Philosophy, and Public Policy (2nd ed., 2006). A book I believe sets the standard for a morally and ecologically sensitive economics, is Partha Dasgupta’s Human Well-Being and the Natural Environment (2001). Finally, a fine example of the  increasing sophistication of environmentalist reasoning and praxis is Moral and Poltical Reasoning in Environmental Practice (2003), edited by Andrew Light and Avner de-Shalit. The entry on “environmental ethics” in the online Stanford Encyclopedia of Philosophy (SEP) is helpful by way of ascertaining to what extent our “dilemma” may afflict environmentalists as well as thinking though these topics more generally.

A word of caution: I think some environmentalists who are making their argument within the parameters of economics, try too hard to demonstrate their capitalist bona fides, thereby unnecessarily constricting the imagination of prospects and possibilities for a more ecologically and environmentally sustainable tomorrow. In short, and by way of a conclusion, we might say that the “Environmentalists’ Dilemma” arises in the first instance because the profession of economics is morally impoverished, a conceptually contingent and remediable state of affairs, foreshadowed in fine fashion, as Allen helps us see, in Thoreau’s Walden.

Readers may also be interested in a compilation from several years ago of titles on “environmental and ecological worldviews:”

Thoreau, Environmentalism, Economy 5

Turning to the works of Henry David Thoreau might provide a “third way” and go some length toward resolving debates about the Environmentalists’ Dilemma.  I borrow the words “Environmentalists’ Dilemma” from Bryan G. Norton, who uses the phrase to refer to the competing discourses of two environmentalist camps: the economists and the moralists.  These camps would, Norton submits, provide very different answers to the question, “What is the value of biodiversity?”  Economists would emphasize “the actual and potential uses of living species” whereas the moralists “do not believe our obligations to protect nature can be traded off against other obligations” (Norton 29-30).  Economists would state the value of biodiversity in quantifiable, utilitarian, and anthropocentric terms whereas the moralists “insist that we have an obligation to protect all species, an obligation that transcends economic reasoning and trumps our mere interests in using nature for our own welfare” (Norton 30).  The dilemma for the environmentalist is which of the two realms, economic or moral, to heed.  Norton’s argument is that the two realms are not in fact mutually exclusive and that Henry David Thoreau supplies proof of their mutual reinforcement.  That Thoreau titles the opening chapter of Walden with one simple if unsuspecting word, “Economy,” is no coincidence.  The Environmentalists’ Dilemma, for Thoreau, is no dilemma at all: “most commentators have assumed that we should give one answer or the other,” but an absolute, totalizing separation is neither necessary nor accurate (Norton 31, my italics).  I agree with Norton and would like to extend his reasoning in this brief post, which draws its analysis from Thoreau’s Walden.

If economists first measure value “as contributions to human welfare” and then promise “an aggregation of values”—i.e., if they promise a calculation of “the contribution of nature to human welfare” as “commensurable and interchangeable with other human benefits”—then Thoreau was something of an economist (Norton 30).  As implied by the title of his opening chapter, Thoreau uses nature as an occasion to opine about human affairs, often in purely economic terms; he transforms the humble, small, and common scenes of nature into grand meditations about labor and profit.  “When my hoe tinkled against the stones,” he says of a day in the bean field, “that music echoed to the woods and the sky, and was an accompaniment to my labor which yielded an instant and immeasurable crop” (247).  Here, Thoreau’s profit—his “yield”—is not quantifiable in monetary terms but in vague moral insight:  “It was no longer beans that I hoed, nor I that hoed beans; and I remembered with as much pity as pride, if I remembered at all, my acquaintances who had gone to the city to attend the oratorios” (247).  Thoreau appreciates the value of labor (minimal physical input for cost-effective output—free food) while recognizing that such value goes far beyond the fiscal benefit of planting crops rather than purchasing food at a store: the labor becomes valuable for what it teaches about solitude, individualism, and freedom from materialism, and not just for its potential for monetary savings.  In this respect, Thoreau marries economics and morality.  Or, as Norton, looking elsewhere in Walden, puts it, “Thoreau describes the benefits of the transformation to higher values in terms of human maturation and fulfillment of potential, as improvements within human consciousness, not in terms of obligations to nature and extrinsic to human consciousness” (32).  In other words, in his celebration of nature, Thoreau takes pains to privilege human economy over natural aesthetic, although the former is dependent upon the latter for its “proceeds.”  Nature is a vehicle for arriving at virtue, thrift included.  It is good—and a good—but humanity is essentially of higher importance.

The merger, as it were, of economics and morality finds its most obvious expression in Thoreau’s various price listings: the costs of building a house; the profits turned from harvesting corn, potatoes, turnips, and beans; the expenses of food and clothing; and the overhead in maintaining a self-sufficient lifestyle.  Of these, John Updike writes,

The long opening chapter, “Economy,” joyously details just how to build a house […] down to a list of expenses totaling $28.11 1/2.  Briskly marketing to the world his program of austerity and self-reliance, he itemizes the few foodstuffs he paid for and the profits he obtained from his seven miles of bean rows.  (xiv, my italics)

Updike’s choice of the word “marketing” is important, revealing as it does that Thoreau’s economics did not stop at savings and cutbacks, but actively advertised a lifestyle at once economic and environmentalist.  Thoreau sold his routine and persona to a curious public, a few of whom bought—and bought into—the ultimately published and publicized form (the book). 

On the one hand, Thoreau’s frugality is a lesson about simplicity and prudence; on the other hand, it offers a more environmentally friendly approach to architecture and construction while simultaneously warning about the destructive effects of what today we might call “the tragedy of commons.”  I have neither the time nor space to fully hash out my ideas about the tragedy of commons.  I will, however, quickly supply Steven C. Hackett’s definition for the term and then offer a short justification for my reference to it.  According to Hackett,

The tragedy of the commons is most likely to occur under the conditions of open-access or other poorly designed and enforced property rights regimes.  The tragedy of the commons outcome results from strategic behavior—behavior that an individual takes based on how other people are expected to behave and respond.  At the heart of the tragedy of commons is the belief that if one were to conserve the CPR, others will take what was conserved, and the CPR will degrade (116). 

Thoreau’s worries about the tragedy of commons are evident in a few abrupt asides.  Take, for instance, these lines regarding hunting: 

Almost every New England boy among my contemporaries shouldered a fowling piece between the ages of ten and fourteen; and his hunting and fishing grounds were not limited, like the preserves of an English nobleman, but were more boundless even that those of a savage.  No wonder, then, that he did not oftener stay to play on the common.  But already change is taking place, owing, not to an increased humanity, but to an increased scarcity of game, for perhaps the hunter is the greatest friend of the animals hunted, not excepting the Humane Society (329).

It seems abundantly clear that Thoreau refers here to the phenomenon—now known as the tragedy of commons—whereby people acting in their own self-interest use up a limited shared resource, in this case animal prey, despite their knowledge that doing so will be bad for everyone.  [Consider this point in light of another sentence by Thoreau: “By avarice and selfishness, and a groveling habit, from which none of us is free, of regarding the soil as property, or the means of acquiring property chiefly, the landscape is deformed, husbandry is degraded with us, and the farmer leads the meanest of lives” (257-58).]  Perhaps the tragedy of commons motivates Thoreau’s declaration that “if all men were to live as simply as I then did, thieving and robbery would be unknown” (269-70).  After all, thieving and robbery “take place only in communities where some have got more than is sufficient while others have not enough” (270).    

Economics and morality also apply—albeit more tenuously—to what Michael Berger calls Thoreau’s “study of ecological dynamics in forests,” a “vigorous program of research” about seed dispersal and its spontaneous generation (381-82).  Although Berger does not explicitly say so, he implies that Thoreau’s scientific forays lend authority to his literary works.  This authority allows Thoreau to promote himself and his philosophical vision.  Berger analyzes Thoreau’s The Dispersion of Seeds, which was not published until 1993.  Nevertheless, Berger’s observations apply almost as aptly to various passages in Walden.  Setting out to show that Thoreau’s somewhat Darwinian ideas were not only sophisticated but also pioneering, Berger posits, “Thoreau’s seed dispersal ecology was […] rich in significance regarding the various kinds of complicated mechanisms, principles, and patterns by which species of plants succeed one another in local ecosystems” (382).  To substantiate this point, Berger quotes the following from The Dispersion of Seeds:

In this haphazard manner Nature surely creates you a forest at last, though as if it were the last thing she were thinking of.  By seemingly feeble and stealthy steps—by a geologic pace—she gets over the greatest distances and accomplishes her greatest results.  It is a vulgar prejudice that such forests are ‘spontaneously generated,’ but science knows that there has not been a sudden new creation in their case but a steady progress according to existing laws, that they came from seeds—that is, are the result of causes still in operation, though we may not be aware that they are operating. (383)

This passage recalls Thoreau’s claim in Walden that “where a forest was cut down last winter another is springing up by its shore as lustily as ever” (302).  Thoreau’s point, at any rate, is, in both cases, that forests (in all their various manifestations—trees, plants, etc.) will spring up as if on their own: independent of the botany or vegetation that preceded them.  In the “big picture,” the economics and morality at issue have to do with Thoreau’s ability to market himself and his ideas.  If he could pit himself as both scientist and writer, his writings would gain both cultural and actual currency as well as popular credibility.  This coupling of scientific sophistication with moral sensitivity produces, in Updike’s words, Thoreau’s thinginess: “the thinginess of Thoreau’s prose […] still excites us, the athleticism with which he springs from detail to detail, image to image, while still toting something of Transcendentalism’s metaphysical burden” (xxii).  Without science, Thoreau is little more than a gushing nature enthusiast; without science or the metaphysical burden, he “comes close to being merely an attentive and eloquent travel writer” (Updike xxii).  Fortunately, Thoreau recognizes the need to economize while moralizing, and to do the former well required a certain scientific literacy.  Norton is more generous than I because he casts Thoreau’s scientific observations about the forest as having nothing to do with self-promotion and everything to do with the Environmentalists’ Dilemma.  Thoreau’s self-promotion notwithstanding, Norton’s praise does tend to demonstrate the manner in which Thoreau yoked science to economics and morality:

Thoreau quite explicitly recognized that the forest, a dynamic system, had a ‘language of its own, and that the transition form the immature state was both literary and scientific. […]  He saw that one learns more important things by relating an organism to its environment than by dissecting an organism into parts.  This indicates that Thoreau was on the right track, seeking the secret of life and its organization in the larger systems in which species live.  Especially, he thought we learn more important things about human behavior, and the evaluation of it, by observing organisms in environments.  He believed that if he could unlock the code of nature’s language, it would provide the key to a new, dynamic and scientific understanding of nature.  The key prerequisite for this change to a more contemplative consciousness was development of a new ‘language’ of human values based on analogies from the ‘language’ of nature. (40)

If Norton is right, as I believe he is, then the Environmentalists’ Dilemma is not so paralyzing as some would suggest.  Indeed, Thoreau’s Walden shows how economy and morality can participate with each other in unique and even scientific ways. 

–Allen Mendenhall

For further reading, see the following:

Berger, Michael.  “Henry David Thoreau’s Science in the Dispersion of Seeds.”  Annals of Science.  Vol. 53 (1996:  381-397).

Hackett, Steven C.  Environmental and Natural Resources Economics:  Theory, Policy, and the Sustainable Society.  M.E. Sharpe, 2001.

Norton, Bryan G.  Searching for Sustainability:  Interdisciplinary Essays in Philosophy and Biology.  Cambridge University Press, 2003.

Thoreau, Henry David.  Walden.  Houghton Mifflin Company, 1893.

Updike, John.  “Introduction.”  Walden.  Princeton University Press, 2004.

Dear Diary.. Memoirs and Law and Literature — Part I 2

In this series of posts, I will begin to explore the role of memoirs in the law and literature class.
I have always assigned memoirs in Law and Literature. This year, in my Law and Literature class, I am assigning four sets of memoirs and several autobiographical essays — more than ever before. In fact the course is bookended by reading memoirs of two independent women, at vastly different points in time — Abigail Abbott Bailey, a Congregationalist woman suffering abuse at the hands of her husband and Patricia Williams, the Columbia Law Professor.

When I took law and literature as a student, the first work we read was The Words by Jean Paul Sartre. Memoirs, I think, are fairly standard fares in law and literature. Memoirs, in a powerful way, force us to ask a central question of literary criticism: “Do you believe the author?” Believability and the law force us to consider several viewpoints of the works: did the author openly lie? did the author stretch the truth? and was the author deceived by his own artistry and construct a different world view than their reality suggests? Examining the author’s credibility impacts the way we perceive the role of legislatures and judges in assigning reasons for their decisions — “Do we really believe their rationale?” Like the Church Theology class that requires Augustine’s Confessions , law and literature should include personal tales, both from those powerfully impacted by the law, and those that are instrumental in shaping the law.

Memoirs also exist in historical settings that are not immediately clear to the reader. The writer, as it were, enveloped by historical circumstance writes from a perspective that can be judged as to its sincerity to the historical setting. Slave narratives fall into a category of providing distinctive personal experience enveloped by the historical circumstances of time and place. (For example Twelve Years a Slave: The Tale of Solomon Northup uniquely considers slavery from the perspective of one wrongfully deported under the Fugitive Slave Act.)

This semester I am assigning a new memoir that I believe captures perspective in historical setting quite well: Religion and Domestic Violence in Early New England: The Memoirs of Abigail Abbott Bailey, edited by Ann Taves. (We are actually kicking off the course with the work). Bailey’s memoir is a stunning treatment of law, religion and social norms. Bailey, an 18th Century Congregationalist (translation: puritan descendent) woman suffers at the hands of her controlling husband. The devout woman suffers her husband’s infidelity (occasioned by rape), incest with their daughter, and power plays. Abigail resolves to divorce her husband and settle their property. At one point, Bailey’s husband (Asa Bailey) convinces Abigail to go with him to settle their property affairs by selling their home to an unknown person some miles away. On the journey, Asa Bailey tells Abigail in effect that they were not going to settle their affairs, but rather, had just crossed over the boundary between New Hampshire and New York and that New York was a “better jurisdiction for dealing with women like you.” New York at the time did not allow divorce and so Asa Bailey transported his wife to a jurisdiction where negotiating a property settlement worked better for him.

The memoirs present an opportunity to discuss a number of themes such as: law as power; access to law and law as morality.

I hope that my students can critically examine Abigail’s memoir and that it can begin to shape the course. (We are also reading that week Young Goodman Brown by Nathaniel Hawthorne and several other perspective pieces).

What memoirs do you assign in Law and Literature? What other Memoirs should law and literature classes consider?

Other Memoirs that assign (and which I will talk about at a future date):
Patricia Williams’ Open House: Of Family, Friends, Food, Piano Lessons, and the Search for a Room of My Own
Jack Henry Abbott, In The Belly of the Beast: Letters from Prison
Henry David Thoreau, On Walden
Barbara Kingsolver, Various Essays