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A few links of interest this week:

Langston Hughes: The Ballad of the Landlord 1


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

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

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

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

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

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

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

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

Epilogue

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

Two Book Reviews Reply


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

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

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

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

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


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

Cornell wrote:

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

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

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


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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

Hat tip to Law and Humanities Blog for the pointer.

Panel on Deportation, Refugees and Exile Reply


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

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

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

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

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

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

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

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

Race Nuisance and American Jazz 1


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

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

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

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

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

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

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

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

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

Image curtesy of MassCommons.

The Most Powerful Women in Literature 3


Flavowire has a list of the ten most powerful female characters in literature.   The list is populated with recent works, which I think is a problem: Jane Eyre (Jane Eyre);  Hermione Granger (Harry Potter); The Wife of Bath (Canterbury Tales); Katniss Everdeen (The Hunger Games); Hester Prynne (The Scarlett Letter); Eowyn (The Lord of the Rings); Lyra Silvertounge (His Dark Materials); Janie Crawford (Their Eyes were watching God); Hua Mulan (The Ballad of Mullan); and Lisbeth Salander (The Girl with the Dragon Tatoo). Some have argued that the character Bella from the Twilight series also should be included.   Obviously, the word powerful is high suggestive and obviously the choices all reflect the various author’s view of power.  Nevertheless,  I wonder why these characters were left off:  Offred (The Handmaid’s Tale); Lady MacBeth (MacBeth); Sofya (Crime and Punishment); or Elizabeth Bennett (Pride and Prejudice)?

So what make’s a female character “powerful.”   Is it her voice in the midst of a context that otherwise would mute her? (Offred)  Is it the conflict that she engages in? (Lady MacBeth) Or, is it adhering to traditional female virtues while having a voice or demonstrating strength?  (Hester Prynne).  The list referred to from Flavowire seems to place the most emphasis on physical strength.   What do you think?   What makes a female character powerful?

Vote for who you think is the most powerful female character in literature.  Post comments below.

Post comments below.

Mark Twain to Walt Whitman: “Happy Birthday” Reply


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

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

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