Associate Professor of Law, The Savannah Law School Teaches and writes about Property, Law and Literature, Commercial Law and other interesting intersections of interest. Author: Marc L. Roark

Associate Professor of Law, The Savannah Law School Teaches and writes about Property, Law and Literature, Commercial Law and other interesting intersections of interest.

All Posts by Marc L. Roark

Why We Should Still Read Ender’s Game in Spite of Orson Scott Card — Part II 1

Orson Scott Card, Teen Lit

Special Appearance by Zach Powers


SEER SUCKER PERFORMANCE

This is the second post the Literary Table presents by Zach Powers from SeerSucker Live discussing Orson Scott Card and his work Ender’s Game as a reflection of and distinctive from his identity. You can find his first post here  Like their Facebook page to stay up to date on performances here in Savannah and abroad.  (Because everything outside of Savannah is just abroad!). 

Zach is a writer that lives in Savannah, and his work has appeared in South Magazine, the Savannah Morning News, and other publications.   Welcome back Zach!

’m not so naïve to believe that a creative work is completely separate from its creator, but the disheartening fact is that even a jerk can create something full of humanity and compassion. The problem becomes more tangible when an author is still living, when it seems that to purchase a book is to put money directly into the pocket of a person with whom you strongly disagree.

But here’s the thing with Ender’s Game. There is absolutely none of Card’s hate within it. In fact, one of the main themes is empathy.

“I think it’s impossible to really understand somebody, what they want, what they believe, and not love them the same way they love themselves.”

So speaks our hero, Ender. I’ve carried that sentence with me for twenty years. It might be the very sentence that allows me now to stand in opposition to the opinions Card espouses.

The novel’s other themes include isolation, ostracization, and innocence, and all are handled with admirable compassion. Ender must learn, at once, to make friends and also fend for himself. He must face down personal demons while learning to accept them. He must battle against those who seek to define his existence. He must, above all else, prevail.

Ender is a creature of almost pure empathy, of crystalline understanding. Through this character, Ender’s Game explores and teaches a philosophy directly opposed to the arguments Card makes against LGBT rights. The young author argues against his older, commentator self.

My argument is this: The potential benefits from reading this book, especially for a teenaged audience, greatly outweigh the negative effects of indirectly supporting Card in his reactionary mission. For a young adult dealing with an emerging LGBT identity or any similar struggle, this would be one of the first novels I’d recommend. It shows how to face hatred, not just from the outside, but self-hatred as well. It teaches that being different is a source of strength.

What’s the broader benefit of depriving Card of a few more dollars? His rants reach only the choir, and nobody outside of that choir is giving his arguments weight. Buying a copy of the novel will not increase his stature. Renting the movie of the book will not elevate Card to the level of Ender’s would-be emperor brother, Peter. I picture Card shouting down one of the long, curving corridors of the Battle School, his voice echoing back only to his own ears. Eventually, he’ll shout himself out.

The book, however, will endure for people like me. Twenty years, thirty readings later. How many times have I invoked that one phrase, “love them the same way they love themselves,” instead of rushing to judge someone? So I won’t judge Card now. There are enough people doing that already, rightfully so.

I refuse to boycott a book that can mean something real to someone in need of that reality. Card’s book is better than he is, and it would be a shame to silence a great work in a futile attempt to shut him up as well. There is more good to be found in the book than any evil Card can actually enact, even if he pleads for such evil with all his strength.

If my approach still doesn’t sit well with you, let me offer a final compromise. After I saw the Ender’s Game movie, I donated twice the ticket price to the It Gets Better Project. That will provide significantly more for a good cause than any pennies Card might receive to indirectly fund his fringe ramblings. I prefer positive action to acts of negation.

The movie opens with a quote from the novel, a line that Ender speaks just before the one I quoted above:

“In the moment when I truly understand my enemy, understand him well enough to defeat him, then in that moment I also love him.”

When it comes to the issue of love, Orson Scott Card is my enemy. I have a hard time understanding him, though. I suspect that’s OK. He probably wouldn’t react well to a profession of love coming from another man, anyway.

If you want to hit Card where it hurts, share his book, and let it teach a new generation to accept and love all people in a way that Card himself can’t.

 

Zach can be contacted via his website http://www.zachpowers.com.  For the latest news and writings, follow his twitter feed @z_powers. 

 

 

Minutes from the last faculty meeting at Hogwarts — Online Classes edition Reply

Faculty Stuff, For fun, Nerd Fights, Uncategorized • Tags: , , , ,

 

 

Headmaster McGonagall called the meeting to order

Old Business:
Appointments

Headmaster McGonagall noted that Despite the report from prior headmaster Snape that forced buyouts were on the horizon, the recent events as a result of the battle of Hogwarts means that we will be able to retain all remaining faculty. Faculty expressed satisfaction at this news.  She also reported that there is a possibility that we gained a few faculty lines though that is still to be determined. Despite great efforts to identify the fifty other unidentified deaths we have been unable to uncover news of professor deaths.

Professor Trelawney, chair of the appointments committee reported that it appears that school may be able to hire a tenure line for the Dark Arts position rather than using podium visitors since the death of Voldemort.

There was discussion whether Hogwarts should consider Harry Potter as a professor.  Despite favorable reviews from remaining professors and his acclaim for having saved the school and the world, it was suggested that the discussion be tabled until he at least completed his seventh year.

Capital Campaign.

Headmaster McGonagall indicated that the school may need to undertake a capital campaign due to massive damage done to the school. Professor Slughorn asked whether we really needed to raise money for building repairs and pointed out that he has not received a salary increase in the two years since he has returned to Hogwarts. Professor Sprout suggested that perhaps their wizarding prowess could be used to rebuild the school instead of raising funds. Professor Flitwick indicated that maintenance and building projects were not apart of his faculty contract and that he already sacrificed much to be a faculty member at Hogwarts.

New Business
Professor Pomfrey asked about a recent report appearing in Slate and CNet that Hogwarts would begin to offer courses online. Much discussion was had. Professor McGonagall indicated that the capital campaign from the last meeting had not gone as efficiently as planned due to the prevailing question why they could not rebuild with magic. She also said lots of great universities had begun offering online courses, particularly in America  and that this was just the way education was moving.At this point there was much angst at the American way.

Professor Slughorn said that Hogwarts would be a laughing stock for the counterparts at Durmstrang Institute — which already looks down on Hogwarts as accepting what they call inferior students.

Professor Slughorn asked about faculty stipends for the summer. Headmaster McGonagall pointed out that Slughorn hasn’t produced any real scholarship for the last fifteen years and that if he would like a research grant he should begin showing an interest in scholarship. Professor McGonagall did indicate that professors may be able to earn extra money through teaching an online class. Faculty agreed to consider this measure at the next faculty meeting.

The meeting was adjoined.

Why We Should Still Read Ender’s Game in Spite of Orson Scott Card — Part I Reply

Orson Scott Card, Teen Lit

Special Appearance by Zach Powers


SEER SUCKER PERFORMANCE

The Literary Table is proud to present Zach Powers from SeerSucker Live discussing Orson Scott Card and his work Ender’s Game as a reflection of and distinctive from his identity.  Like their Facebook page and twitter feed to stay up to date on performances here in Savannah and abroad.  (Because everything outside of Savannah is just abroad!). 

Zach is a writer that lives in Savannah, and his work has appeared in South Magazine, the Savannah Morning News, and other publications.  Welcome Zach! 

In the original version of Orson Scott Card’s award-winning novel Ender’s Game, the insect-like alien enemy was called the Buggers. I remember being a little offended with the release of the “author’s definitive edition,” in which this term was replaced by the supposedly-scientific Formics. What I perceived to be Card’s oversensitivity—his PG-ifying and PC-ifying of the text—annoyed me. So what if the word was connected to the British term buggery? Isn’t Bugger exactly what the collective we would call an enemy who looked like an anthropomorphic ant? I never once thought the term was representative of Card’s actual stance on sexuality. Sometimes art contains ugliness. The contents of his book remained unconnected with the values of the man.

It turns out that the contents of the book are disconnected from the man, but in the other direction. Card’s opposition to LGBT rights in recent years has been well-documented. Even more, I sense a simmering hate underneath any of Card’s writing on the subject, but this tone is so completely absent in his early fictions that I have a hard time believing they were produced by the same hand.

I need to disclaim my personal biases. Ender’s Game is one of my favorite books, and probably the most important book I ever read in terms of shaping who I am. I purchased my first copy—sitting beside me right now—at a 7th grade book fair. It was the first book I ever bought with money out of my own pocket. It was the first book I ever stayed up all night to finish. I read it about thirty times between 7th grade and the end of college. I used to play an online computer game set in the book’s Battle School space station. I still daydream of one day writing the Ender’s Game prequel that has been simmering in the back of my brain for years. Because of my love for the book, Orson Scott Card was, for a long time, someone I admired.

ZACH’S POST CONTINUES ON TUESDAY APRIL 22!

Zach can be contacted via his website http://www.zachpowers.com.  For the latest news and writings, follow his twitter feed @z_powers.

Louisiana’s Bible Reply

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Louisiana legislators are attempting to revive the old times – back to 1611.  House Bill 503 proposed to declare that “Louisiana should have a state book,” and the state book shall be the “Holy Bible.” 

Such a curious choice!  Louisiana traces its roots back to French and Spanish settlers, particularly french missionaries that established mission posts along the Louisiana delta plains.  More likely to make the journey into the early Louisiana territory was the French Catholic Bible published at Leuven in 1550.  Certainly, at least early on, the various French translations of Catholic Bibles had more influence than the King James Bible.  

So what should the state book of Louisiana be.  I will offer my top five choices of books:

1.  The Louisiana Civil Code. This book has had the most influence on individuals, society, and the state in general.  It springs from the positivist tradition of a civil society, while blending spanish and french influences on the legal regime. It has been updated and revised as the years have passed. Indeed there is no more “Louisiana” book than the Louisiana Civil Code. 

2.  All the King’s Men.  This is an obvious choice given the influence of Louisiana politics and setting on Robert Penn Warren’s best known book.  It is, without a doubt, Louisiana’s book. 

3. Solomon Northup’s Twelve Years a Slave.  Solomon Northup spent twelve years enslaved in the Cane River area of Louisiana’s plantations.  His enduring memoir continues to shape historical dialogues on slavery, society, and memoir.  

4. Laussat’s Memoirs of My Life.  Pierre Clement de Laussat was a french bureaucrat assigned to the Louisiana post. He held posts in Martinet and Guiana, but was the last French provincial governor of the territory before the Louisiana Purchase.  HIs memoirs contain interesting reflections on the purchase from the french perspective.   Additionally, much of his memoir is concerned with life in the Louisiana Territory.  

5. A Confederacy of Dunces. John Kennedy Toole’s only published novel and winner of the Pulitzer Prize for fiction, the novel is set in Louisiana’s cultural capital New Orleans, and depicts life from the perspective of a modern Don Quixote of the French Quarter.  

What other books should be considered?  

Image from Albert Pike and the Louisiana Civil Code: An Unfinished Epic…

Robert Penn Warren and Southern Exceptionalism Reply

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RPW ImageOver the next few days, I want to deliver a paper I presented at the Conference on the Novel in Salt Lake City, Utah last weekend. The theme of the Conference was Land and the Novel.  I had the pleasure of joining friends that delivered wonderful papers on the Picaresque form in Spanish and American Literature, and the role of Native American and western discourses on Sovereignty and Conquest. Today I will introduce the paper I presented titled Robert Penn Warren’s Southern Exceptionalism in Place. Over the next few days I will add sections.  Comments are always welcome.

Robert Penn Warren’s preeminent subject was the American South.[1] Born in Kentucky and living in various southern states, including Louisiana, and Tennessee Warren once reflected, “The South never crossed my mind except as an imaginative construct before I left it.”[2]  Later, Warren claimed “he became a Southerner by not being there.” [3] His novels reflect the tension felt by the author whose characters, like him, are at once out of place in their environment, while at the same time in the only place that seems best suited for their identity.

Through these characters, Warren performs the tension of southern identity – wrestling with the problem of not belonging, while also being in the only place where one belongs.[4]   Warren’s reflections of feeling isolated in a place he calls home has led to some scholars describing Warren’s view of southern identity as hallmarked by a perception of loneliness. [5] While loneliness is a theme that Warren’s work captures, another more prevalent theme emerges from Warren’s characters and places – that of Southern Exceptionalism.

In the next few posts I will describe what I mean by Southern Exceptionalism and then describe how that theme emerges in Warren’s novels All the King’s Men and Flood.  All the King’s Men follows the workings of Jack Burden and Willie Stark through the political machinery that reveals identities as against place and time.  Jack Burden, thought to be the character that Warren most closely aligns with[6] finds himself torn between the Jack Burden that existed in the past at Burdens landing, and the Jack Burden of the present – a journalist lackey of Governor Stark — who seems to have a knack for “making things stick” and “uncovering the past.[7]  Both Burden and Willie Stark find themselves at one in the same time in and out of contradictions.[8]

Likewise, Warren’s novel Flood : A Romance of our Time, tells the story of Bradwell Toliver a novelist and screenwriter returning to his home town Fiddlersburg to tell its final story. Fiddlersburg is set to be flooded by the Army Corp of Engineers TVA Project in Middle Tennessee leaving as the preeminent question for everyone in the town – can Fiddlersburg residents be themselves without Fiddlersburg.  Like Burden and Stark, Tolliver and other characters find themselves living out contradictions, whether its Toliver’s inability to write about Fiddlersburg while in Fiddlersburg.[9]

I argue in this seriesthat loneliness itself cannot answer that question of Southern identity, but rather is one piece of a broader identity question in the south.   For Warren, the collective action of being “lonely together” helps explain certain aspects of the south.  It may also explain why characters like Burden, Toliver, and Stark move through the south the way they do -able to  both associate and disassociate themselves from their actions and physical surroundings, while others do not.  But it does not necessarily explain the south, despite the claim by Warren’s characters and scholars alike. Loneliness is a description for a people that invoke a state of mind about their surroundings – the choices to embrace or not embrace their surroundings. Exceptionalism, on the other hand is defined by the irony of living with the contradiction.  For the characters, it’s the various contradictions of moral purpose, outcomes and identities that present contradictory moments.  For the region, Warren describes the ability to balance the surroundings with its narrative of superiority.   The constructs of place and time provide boundaries by which characters in Warren’s work navigate the central notion of those ironies.

[1] Warren’s works in both fiction and Non-Fiction detail a fascination with the American South.  His nonfiction works,  John Brown: The Making of a Martyr (1929) Segregation: The Inner Conflict of the American South (1956); Who Speaks for the Negro ?(1960); The Legacy of the Civil War (1961); and Jefferson Davis Get’s his Citizenship Back (1980); and his fictional works All the King’s Men, Flood, Time and World Enough, Night Riders, Meet me at the Green Glen, At Heaven’s Gate, … all are set in the American South.

[2] Watkins, Floyd C., et al., Talking with Robert Penn Warren 383 (U. Ga. Press 1990).

[3] Id. at 374.

[4] Warren himself described this tension personally reflecting about a farm he considered buying in Tennessee later in life.  Though the Middle Tennessee area where the farm was located was the place he claimed to know best, he also said he felt if he bought the farm he’d be isolated. “ A lot of friends are dead and gone, but I also felt a real change in the whole nature of the world. And I felt it would be an idle dream for me to go back there. It would be ridiculous.” Id.

[5] Randy Hendricks, Lonelier than God: Robert Penn Warren and the Southern Exile (2000) (suggesting that Warren more than any other writer has dealt with the southerner as exile); Lewis Simpson, Robert Penn Warren The Loneliness Artist, 99 Sewanee Review 25 (1991) (“describing the autobiographical connections of personal exile in Warren’s various works).

[6] Simpson, supra note 5, at ___ (suggesting that Warren can no more disclaim Jack Burden than Shakespeare can Hamlet).

[7] See Martin Lumpkin, Jack’s Unconscious Burden: A Psychoanalytic Interpretation of All the King’s Men, in Dennis L. Weeks, “To Love thee So Well the World: A Festschrift in Honor of Robert Penn Warren, 197 (1992) at 197 (describing Jack Burden’s tensions as between “denying his past and living with his cynical present without alms”).

[8] See Lumpkin, supra note 7, at 207 (rejecting Burden’s tale as mere tragedy, for its failure to account for “ambiguities, conflicts, complexities of the human personality); Robert Feldman, Responsibility in Crisis: Jack Burden’s Struggle in All the King’s Men, in Weeks, supra note 7, at 105 (arguing that Burden’s contradiction is the temptation to avoid versus confront the burden of guilt and responsibility); Steven D. Ealy, Corruption and Innocence in Robert Penn Warren’s Fiction, Modern Age (Spring 2005) (describing Willie Stark as an Idealist turn pragmatist with an idealist bent).

[9] Bradwell Toliver can’t seem to understand himself in the town of Fiddlersburg.  This emerges in two ways through out the novel.  First, Toliver’s best selling novel is based on Fiddlersburg but is written when Toliver is away from the town.  The second is the movie script that he writes while in the town, but which, according to Yasha Jones, does not capture the essence of Brad in Fiddlersburg.

De-Politicizing the Terrorist Through an Apology Reply

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NPR this morning posted the story of a Syrian terrorist issuing an apology for a man who was wrongfully beheaded:  

“Militant Islamist rebels in Syria … have asked for ‘understanding and forgiveness’ for cutting off and putting on display the wrong man’s head.” NPR quoting the Guardian.  

This is not conventional, but there is something deeply meta going on here.  Apologies require a form of remorse — some sense that the order of the world has been offended and for which one must account.   Thus, the very idea of an apology emanating from someone labeled a “terrorist” should give us pause to reconsider what being a terrorist means.   We conventionally think of those acting outside of any political or moral order.  We think about the zealots who have so twisted their own belief system that they now justify the destruction of others for the better good.  Individuals (even innocent persons) are often swept up into the chaos of horrible acts that are justified for the greater good.   

That someone would apologize for actions that cause injury to “an innocent” should force us to reconsider how we label political groups waging war — particularly when we presume that the groups we’ve labeled as terrorist has not conception of “an innocent.”   It should force us to reconcile that the way we use the term terrorism and terrorist are more often conclusions than they are meaningful identities.   

Interpretive Imagination: seeking the power of illustration rather than the dogma of instruction Reply

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Lets be clear, interpretation of difficult texts requires imagination.

When I teach Law and Literature, it seems every class turns to the same topic:  whose lens do we understand the text through, author or reader?  That question becomes particularly charged when God is the purported author.  Sacred texts have the unusual benefit of being endorsed as having a special relationship to the reader — a relationship that implies an authority to be heard – to say something that is meaningful – or to extol some virtue that the reader should pay attention to.

This problem of the sacred text and the reader’s dilemma increases as the text becomes more murky.   That is, a sacred text which is clear and consistent often requires fewer heuristics to justify its authority.   But those texts which lack clarity or which send contradicting messages often require an interpretive mechanism for the text to maintain its sacred authority.

In the Christian tradition, two mechanisms have been employed in this interpretive effort —  either the traditions of the church or the fiction of the inerrant Word. (I would argue that the law uses similar mechanisms to justify the stasis that the law maintains or the sudden change that the law undertakes — Justice Cardozo’s penchant for claiming the law has always approached problems in certain ways calls on a tradition (albeit one that does not exist) to support the new legal regime he created).

Those interpretive mechanisms (whether by tradition or inerrancy) tend to lead readers of the Christian sacred text on a search for its instruction, rather than its illustration.  For example tradition often binds the reader to only understand the text by the processes and order that was pre-established.   Inerrancy seeks to validate problematic texts by a mysterious unknown factor.  But interestingly, neither of these interpretive mechanisms limit individuals from claiming an instruction: that God wants you to do something; or that God is disappointed in some behavior.  For the inerrant, the biblical text is filled with land mines of inconsistency. For every command to not do something, there is an example of one exonerated who did that very thing.   In fact, I argue (indeed, I challenge anyone to prove me wrong) that the only norm that is not contradicted in the biblical text is the norm of fidelity to God and to to other human beings as being the highest order norm.  Problematically, the other norms of behavior have often been seen as supporting this fidelity to God — a point again refuted regularly throughout both the Old and New Testament as the narrative only sometimes attributes behavior with Fidelity to God.

So then what are we to do with an interpretation like Jay Michaelson proposed at the Huffington Post last week, titled “When Jesus Healed a Same Sex Partner.”  (To be clear, Michaelson is not the only or the first to proffer this argument).  Michaelson describes (convincingly) that Jesus’s healing of the Centurion’s servant was likely the healing of a same-sex partner (at least same-sex partner as the First Century would have understood the interaction).  Michaelson goes on to say:

If I and dozens of other scholars (some of whom are listed below) are correct, this is a radical act. Jesus is extending his hand not only to the centurion but to his partner, as well. In addition to Jesus’ silence on homosexuality in general (he never mentions same-sex intimacy, not once, despite its prevalence in his social context), it speaks volumes that he did not hesitate to heal a Roman’s likely same-sex lover. Like his willingness to include former prostitutes in his close circle, Jesus’ engagement with those whose conduct might offend sexual mores even today is a statement of radical inclusion, and of his own priorities for the spiritual life.
It also sets up a useful distinction for those who may be struggling with same-sex marriage as a religious act, but who nonetheless want their gay and lesbian family members, friends, and community members not to be discriminated against. Jesus is not conducting a same-sex marriage here. Yet he is recognizing a socially accepted same-sex relationship. Likewise, Christians and Jews today who may not be ready to celebrate same-sex weddings in their own churches and synagogues can and should endorse civil marriage equality in the public sphere. In a very different context, this is exactly what Jesus did 2,000 years ago.

Frankly, this type of interpretation creates some problems for both the tradition ladened interpreter and the inerrant interpreter.  For the traditionalist, its poses the possibility that the church misunderstood Jesus.  For the inerrant, it posses the possibility that the cannon is flawed.  But Michaelson’s interpretation need not be so limited:

What both tradition and inerrancy require is a third more powerful heuristic — imagination.   The ability to see beyond the text to the illustration, rather than stopping at the supposed instruction, allows one to treat the sacred text with authority, while acknowledging that difficult passages require more than just fictions or traditions to resolve.  It also allows the reader to imagine how the text might shift in light of its new surroundings (a limitation for both the inerrant and the traditionalist).

Thus, one might view the passage in the minimalist way as Michaels has suggested — that Jesus’s act of kindness is one that at the very least should be extended to similar folk.  Or, one can let the imagination take us where the normative message of the sacred text might — that whatever relationship one is in, be it heterosexual or homosexual, the virtues that Jesus affirms are loyalty and fidelity.

Follow up to Harry Potter and Cultural Property: Goblins as Allegory 1

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In yesterday’s post, I postulated that Rowling’s treatment of copyright was similar to Goblin’s treatment of their creation.  I said:

in the latter case of copyright, Rowling seems to take the disposition of the more calculating goblin Griphook, claiming her entitlement to own, and therefore prevent others from claiming an interest in her cultural property.

Today’s inbox welcomed a message from a friend that teaches at the University of Tennessee-Knoxville School of Law, Gary Pulsinelli, pointing me to a paper he wrote in 2008 drawing a similar analogy.  The article titled: “Harry Potter and the (Re)Order of Artists: Are we Muggles or Goblins?” appeared in volume 87 of the Oregon Law Review, page 1101 et seq.  I am posting the abstract below with a link to where you can get the article:

In “Harry Potter and the Deathly Hallows,” author J.K. Rowling attributes to goblins a very interesting view of ownership rights in artistic works. According to Rowling, goblins believe that the maker of an artistic object maintain an ongoing ownership interest in that object even after it is sold, and is entitled to get it back when the purchaser dies. While this view may strike some as rather odd when it is applied to tangible property in the ‘muggle’ world, it actually has some very interesting parallels to the legal treatment of intangible property, particularly in the areas of intellectual property and moral rights. Because of the way these parallels have been developing and growing, we seem to be becoming more goblinish in our willingness to recognize ongoing rights in artistic objects, including allowing the artist to collect a commission on subsequent resale of the work. Practical and social considerations suggest that we are unlikely to go as far as recognizing a permanent personal right in the creator that lets him or her reclaim such an object after a sale or other transfer is made. However, we are moving closer to recognizing some forms of the collective right that the goblins actually seem to demand, a cultural moral right in important cultural objects that enables the descendants of that culture as a group to demand the return of the object. Thus, we muggles may not be as far from the goblins as we may have at first believed. 

Please feel free to send me more references or drop them in the comments.

MR

The Subtle Irony of Cultural Property in Harry Potter and Cultural Property IN Harry Potter 4

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One of the many projects I have been working on this summer is writing a paper on the Property theory present in the Harry Potter novels (titled When Chattels Choose).  One of the truly interesting things about property represented in Harry Potter is the ambiguous relationship of ownership to the property. In the legal world, we see ambiguity in property most visually resolved in torts landscape — nuisance as the ever developing tool of property allocation.   We could even argue (as I will later this year) that nuisance theory is quite akin to intellectual property disputes.

For now, lets turn to how property disputes are resolved in the Harry Potter world.  Consider all the property that is described in the magical world — just about every piece of property may be reoriented to new ownership, even without the express consent of the “owner” — a choice of the chattel, we might say that alleviates the need for disputes. Let me offer just a few examples:

  •  After Sirius Black dies and Dumbledore informs Harry that he is the heir of 12 Grimmauld Place, Dumbledore considers it questionable whether Harry is actually entitled to Grimmauld place and asks Harry to perform a simple test to determine his legitimacy.   The property orients itself to its proper frame of ownership, regardless of the will of the previous owner and notwithstanding the acts or non-acts by the party actually entitled to ownership.  See Harry Potter and the Half Blood Prince
  • Wands “choose” the master.   And wands may be reoriented if “captured” properly.  Consider the distinction between Harry disarming Draco Malfoy to become the master of all wands that Draco Malfoy was master of (including the Elder Wand) and Voldemort killing Severus Snape expecting to become master of the Elder Wand thereby.   The wand simply chose whose conquest mattered more for the purposes of its loyalty.  See Harry Potter and the Deathly Hallows 
  • The Sword of Gryffindor is described as cultural property by two different characters. First, the Minister of Magic Scrimgeour, after informing Harry that he was given the Sword as a part of Dumbledore’s will, later informs him that the sword is not susceptible of ownership.  Rather, the sword is cultural property which may present itself to any Gryffindor.   Interestingly, the Goblin Griphook describes the sword as cultural property, though not that belonging to Gryffindors, but belonging to Goblins, since they made the sword.  The sword apparently chooses the cultural affinity of its ownership by choosing Harry and then later choosing Neville Longbottom.  See Harry Potter and the Deathly Hallows
  • Snitches (the golden balls used in quidditch games are said to have “flesh memories. As Scrimgeour says to Harry: “ A snitch is not touched by bare skin before it is released, not even by the maker, who wears gloves.   It carries an enchantment by which it can identify the first human to lay hands on it, in case of a disputed capture.  This snitch” — he held up the tiny golden ball – “will remember your touch, Potter.” Harry Potter and the Deathly Hallows

There are no doubt others, but what seems clear is that property has the capacity of choice in the world of Harry Potter.  That impartial choice acts as the great equalizer that by forcing “fair” redistribution of property according to certain characteristics and with certain presumptions of fairness.  First, it seems the the magical world is not adverse to basic rules of construction that equate to fairness.  First capture of the snitch equates to fleshly connection upon first capture; capturing a wand fair and square gives one rights in the wand (and others apparently); and property may be passed from one wizard to another according to expectations that they have.  These rules are mirror images of our world of property allocation with the exception that magic alleviates the need for dispute resolution — the property simply knows to whom it should belong.  Unlike a fox or whale, which may be fairly disputed who began the pursuit, who caused the capture, or whether the party who secured the bounty did so fairly, the magical world’s fairness quality is determined not by ambiguity, but by clearly choosing chattels.

What caught my attention, though in thinking through this scheme is the irony of property choice theory that ceases to exist outside Rowling’s magical world.  Again, consider the most obvious form of cultural property — the Sword of Gryffindor.   One could draw an analogy to Rowling’s own work as being cultural property — surely Harry Potter is very much with all of us as it was with Rowling for so long.  So when a pair of seemingly different (but inextricably similar) lawsuits involving JK Rowling’s intellectual property in Harry Potter surfaced in 2010, one could not help but wonder about the irony.

In the first lawsuit, holders of the copyright to Adrian Jacob’s book Willy the Wizard  sued Rowling for Plagiarism claiming that many elements were taken from his earlier (1987) book, including elements of the plot in Goblet of Fire, the presence of the Wizarding Train, a wizarding prison, and human hostages inside a bathroom.   In the second lawsuit, Rowling herself along with Warner Brothers brought a lawsuit against a New York Librarian who operated the Harry Potter Lexicon Website after the website began promoting a print version of its website.    Slate.com offered the following analysis of the second lawsuit:

For a fan to write this kind of entry, Rowling says, is to “take the author’s hard work, re-organize their characters and plots, and sell them for their own commercial gain.” But that’s ridiculous. This and other entries aren’t, as Rowling seems to suggest, anything like an abridgment of the originals. No one would read the Lexiconas a substitute for the Potter books; it is useless unless you’ve read the original, and that makes all the difference.

These two examples offer a crash course in the dissonance that exists between Rowling’s magical world and her non-magical world.  Arguably, the magical world would have a means of chattel based choice to decipher the propriety of the actions.   Unfortunately, the law offers no perfect wisdom like that of chattel-based choice.   I might argue that Rowling takes on both characteristics in the disputes around the Sword of Gryffindor in her two law suits.  In the plagiarism suit, Rowling appears to be the wide-eyed, perhaps naive recipient of cultural property, claiming innocently, that they simply chose her as a worthy recipient.  What defines the rightful wielder of the sword is courage in the novels — courage, which no doubt Rowling took on in publishing her stories from the outset.   But in the latter case of copyright, Rowling seems to take the disposition of the more calculating goblin Griphook, claiming her entitlement to own, and therefore prevent others from claiming an interest in her cultural property.

What we do know is that artists use and reuse the works of others. This is clearly described in works far and wide — as scholarly as Jamie Boyle’s The Public Domain, Larry Lessig’s Remix, and blog writers the world over.

Comments are welcome.

The Law and Sacred Spaces Part II: Monumentalism Reply

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Next Post — Conflict and Compromise in Political Consensus.