Ethics, Literature, and (internally) Deliberative Democracy Reply


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[Readers who have not already done so, may want to look at an earlier and related post here at the Table: Narrative Goodness.] 

Invoking both a philosopher: Aristotle, and a novelist: Henry James, in Love’s Knowledge (1990) Martha Nussbaum writes of the importance of “perception” for ethical attentiveness and judgment or practical wisdom (phronēsis). This perception is defined as “the ability to discern, acutely and responsively, the salient features of one’s practical situation.” Such perception works in conjunction with or supplements moral philosophy’s traditional emphasis on rules or principles and categories, for the latter are not sufficient alone to make sense of the novelty of, or interconnected “particulars” in, our experience. Put differently, they cannot, unaided, cultivate a capacity to sensitively respond to new circumstances and situations. Experiential learning with regard to ethical living, in other words, “requires the cultivation of perception and responsiveness: the ability to read a situation, singling out what is relevant for thought and action.”

This emphasis on perception reminded me of an aphorism from Nietzsche:

“Learning to see—accustoming the eye to calmness, to patience, to letting things come up to it; postponing judgment, learning to go around and grasp each individual case from all sides. This is the first preliminary schooling for spirituality.” (Beyond Good and Evil)

While we may cultivate such perception and responsiveness through the emulation of exemplars of ethical goodness should we have the good fortune to intimately know and interact with such individuals in the daily round, literature, and especially novels, at least novels of a certain sort, can likewise and more routinely if not reliably offer us guidance on this score as well for they, in Nussbaum’s words, “exemplify and offer such learning:” “Our experience is, without fiction, too confined and too parochial. Literature extends it, making us reflect and feel about what would otherwise be too distant for feeling. The importance of this for both morals and politics cannot be underestimated.”

Literature’s capacity to peer, second-hand or at one-remove* as it were, into the lives of others, to cultivate a certain kind of “seeing” characterized by “calmness,” “patience,” the postponement of judgment, the appreciation of different perspectives, and the engagement of our emotions (sympathy, compassion and empathy for example) in a way that complements and motivates our rational reflections and deliberations, these are among the features intrinsic to the act of reading literature of a certain sort that Nussbaum chooses to highlight for its contribution to ethical reflection, moral deliberation and our understanding of virtuous living generally. And fiction, especially the novel, is the focus of her analysis because modern philosophical rhetoric, the mode of writing philosophy, at least for one’s peers in the profession, is constitutionally ill-suited if not unable to cultivate the aforementioned qualities believed to enrich moral thinking and action. Literature’s capacity to widen our horizons in this manner, to help us appreciate various perspectives outside our own experience, called to mind yet another aphorism of Nietzsche:

“There is only a perspective seeing, only a perspective ‘knowing;’ and the more affects we allow to speak about one thing, the more eyes, different eyes, we can use to observe one thing, the more complete will our ‘concept’ of this thing, our ‘objectivity,’ be.” (Daybreak or The Dawn)

The best literature, for Nussbaum, in effect provides us with more and different eyes. Moreover, Nietzsche’s stress on “more affects” in this regard is repeated in Nussbaum’s discussion of our emotional involvement with the novel, which is shorn of the more intemperate or darker displays of feeling we find in personal encounters, and thus in some sense, with the act of reading we lack the degree of attachment to our emotions found in personal interactions: our emotional engagement with the text is characterized by a kind of detachment congenial to enhanced self-awareness and self-knowledge.

Linda Zagzebski provocatively argues for a “direct reference” exemplarist virtue ethics in her book Divine Motivation Theory (2004) that is of some relevance here. And we might benefit from her proposal even if we choose, as I do, to set aside (or ignore) the theological components of her theory. According to Zagzebski, the “concept of good person arises from exemplars:” “We do not have criteria for goodness in advance of identifying the exemplars of goodness.” Thus, the phronimos, that is, the person who exhibits practical wisdom, “can be defined, roughly, as a person like that, where we make a demonstrative reference to a paradigmatically good person.” The late Robert Nozick wrote about such practically wise and good persons in perhaps his best work, Philosophical Explanations (1981): 

“We all know people, I hope, who bring out the best in us, people in whose presence we would be embarrassed to speak or act from unworthy motives, people who glow. In their presence we feel elevated. We are pushed, or nudged further along a path of development and perfection; rather, we are inspired to move ourselves along, in the direction shown. [….] We want to find a way of living whereby our best energies and talents are poured out so as to speak to and improve the best energies and talents of others. We want to utilize our highest parts and energies in a way that helps others to flourish.”

It may very well be the case that we don’t intimately know such people as Nozick describes, or our encounters with them are few and far between. In such instances we can turn to literature as a substitute for live moral exemplars, for “if all the concepts in a formal ethical theory are rooted in a person, then narratives and descriptions of that person are morally significant [as in the narrative accounts, say, of the Buddha or Buddhist arahant or bodhisattva, the Daoist or Stoic sage, Jesus and Christian saints, Gandhi, Sufi saints…].” Narratives are given a priority in an exemplarist virtue ethics, for they’re capable of providing us with “detailed and temporally extended observations of persons.” Of course we need not simply have recourse to the narratives of perfectly good persons of the sort we often encounter in religious literature. Less-than-perfect narrative exemplars found in many novels can model the sort of virtue required “in the messy situations that ordinary, less-than-virtuous persons encounter in modern life….” As Zagzebski reminds us, cultures have traditionally “enshrine[d] the wisdom of exemplars in myths, legends, the lives of saints and heroes, and in sacred literature,” while today we more often turn to personal acquaintances and literature (or even films) for our moral exemplars, although we’re faced, alas, with the unfortunate fact that the post-modern novel represents a “notable decline in the depiction of individuals who are morally better than the ordinary, [as] art no longer has the function of representing moral exemplars.” The primary task of (ethical) literary criticism in the contemporary world might therefore be one of identifying those works of literature, in particular perhaps novels, distinctive for their narrative depictions in the broadest sense of moral exemplars (as well as their converse). In Love’s Knowledge Nussbaum invokes works by Henry James, Dickens, and Proust (among others), although we can well imagine other writers perfectly suited to this task: Jane Austen, Thomas Hardy, Dostoevsky, Pablo Neruda (a poet), Naguib Mahfouz, Elias Khoury, J.M. Coetzee, Ursula Le Guin, Nadine Gordimer, and Margaret Atwood, for example.

We close with mention of one of our foremost political theorists, Robert E. Goodin, who seems to have taken to heart Nussbaum’s thoughts on the role of literature’s capacity to extend and deepen our experience with regard to morals and politics (whether directly or not is hard to say, although he does cite several of her books in a note) in his book, Reflective Democracy (2001). Goodin explains how “deliberative democratic theory” attempts to identify methods and procedures whereby we can correct for uninformed, malformed or distorted, in short, irrational or unreflective preferences of the kind commonplace in modern (mass) democratic societies: “Properly crafted deliberative processes can produce preferences which are more reflective, in the sense of being

  • more empathetic with the plight of others;
  • more considered, and hence both better informed and more stable;
  • more far-reaching in both time and space [i.e., not myopic or marked by inconsistent and temporal time discounting], taking fuller account of distant periods, distant peoples, and different interests”

The original and creative component of Goodin’s proposal comes in his formulation of a “new way of conceptualizing democratic deliberation—as something which occurs internally, within each individual’s head, and not exclusively or even primarily in an interpersonal setting.” As Goodin says, “Seeing democratic deliberation as being inevitably a largely internal mental process—and potentially more so still—we are led to see as democratically more central than we might otherwise have done a wide range of political arrangements designed to inform the political imagination.” I won’t here cite the cultural, institutional, and interpersonal dimensions of these political arrangements listed by Goodin as I want, in keeping with the suggestions of Nussbaum and Zagzebski, to focus instead on the intrapersonal model of democratic deliberation “within,” that is, the “internal-reflective” aspect of deliberation that might or should supplement and complement the more well-known external-collective models of democratic deliberation. Goodin understands that the precise ways in which good literature stimulates our capacity for empathy, our imagination and sensibilities, our appreciation of concrete particulars, is somewhat elusive if not mysterious. But more importantly, what is commonly acknowledged and well appreciated by literary theorists

“is not just that fiction (and art more generally) might, and often does, contain allusions to social, economic, political, and historical facts, and in that way may serve certain didactic purposes. The larger point is that those lessons come packed with more emotional punch and engage our imagination in more effective ways than do historical narratives or reflective essays of a less stylized sort [e.g., much of Anglo-American analytic philosophy!]. ‘Artists,’ John Dewey says, ‘have always been the real purveyors of news, for it is not the outward happening in itself which is new, but the kindling by it of emotion, perception, and appreciation…. Democracy will have its consummation when free social inquiry is indissolubly wedded to the art of full and moving communication.’ That is not just to say that novelists are more evocative writers than historians or essayists (true though that may be, too). Rather, they fix their focus on the particular—one person, or one action or one period—and they introduce generalities by way of anecdotes, episodes viewed from that particular perspective. That vivid evocation of the particular, in turn, has important consequences for the uptake of works of art. Inevitably, we find it relatively easy to project ourselves imaginatively into the place of some specific (fictitious but grounded) other. It is necessarily harder to project ourselves imaginatively into the inevitably underdescribed sorts of amorphous and abstract others which are the stock and trade of historians and social scientists [and, Nussbaum would add, the real and hypothetical agents of ethical theorizing in contemporary philosophy].”

* This can be understood in several different ways, at least one of which entails recognizing that, in H. Porter Abbot’s words, “as true as it is that narrative can be an art and that art thrives on narrative, narrative is also something we all engage in, artists and non-artists alike. We make narratives many times a day, every day of our lives. And we start doing so almost from the moment we begin putting words together.” For a “philosophy of mind” analysis of the fundamental role of folk-psychological narratives in the child’s acquiring the capacity of understanding intentional actions performed for reasons, please see Daniel D. Hutto’s Folk Psychological Narratives: The Sociocultural Basis of Understanding Reasons (2008).

Further Reading:

  • Booth, Wayne C. The Rhetoric of Fiction. Chicago, IL: University of Chicago Press, 2nd ed., 1983.
  • Booth, Wayne C. The Company We Keep: An Ethics of Fiction. Berkeley, CA: University of California Press, 1988.
  • Bruner, Jerome. Making Stories: Law, Literature, Life. New York: Farrar, Straus and Giroux, 2002.
  • Chari, V.K. Sanskrit Criticism. Honolulu, HI: University of Hawaii Press, 1990. [I have included this book because I believe the treatment of the emotions one finds in rasa aesthetic theory can best account for the way in which Nussbaum understands the unique manner in which works of literature engage our emotions. As I’ve written elsewhere: In Indian aesthetics, and speaking in this instance with regard to the art of poetry, the great Kashmiri Śaiva philosopher Abhinavagupta (c. 950-1015) argued that, properly conceived and executed, a poem’s cognitive content allows our own mental states to be objectively perceived by awakening latent memories, impressions or dispositions. The resulting rasa experience is said to be self-validating (or –certifying) (svatah prāmana, the notion that the validity of a cognitive episode or knowledge is present in the material that creates the object and that the awareness of this validity arises spontaneously with that episode or knowledge itself; for example, in Advaita Vedānta, awareness is said to be self-validating—and self-illuminating—such that the doubt ‘Am I aware or not?’ cannot occur). The self-validating character of rasa experience appears to countenance the idea that, in the end, such experience is a species of self-knowledge, in Abhinavagupta’s words, “a form of self-contemplation.” Thus “rasa as ‘aesthetic flavour’ comprehends both the arousal and development of an aesthetic emotion in the mind of the aesthete, as well as the objective components of the art object, which arouse and sustain that emotion” (Harsha Dehejia). This is one way we might makes sense of the psychological and epistemic mechanisms behind Iris Murdoch’s claim that good art “affords us pure delight in what is excellent,” and why “Good art shows us how difficult it is to be objective by showing us how differently the world looks to an objective vision.”]
  • Harpham, Geoffrey Galt. Shadows of Ethics: Criticism and the Just Society. Durham, NC: Duke University Press, 1999.
  • Hutto, Daniel, ed. Narrative and Understanding Persons. Cambridge, UK: Cambridge University Press, 2007.
  • Landy, Joshua. Philosophy as Fiction: Self, Deception, and Knowledge in Proust. New York: Oxford University Press, 2004.
  • Martinich, A.P. and Avrum Stroll. Much Ado About Nonexistence: Fiction and Reference. Lanham, MD: Rowman & Littlefield Publishers, 2007.
  • McGinn, Colin. Ethics, Evil, and Fiction. New York: Oxford University Press, 1997.
  • Murdoch, Iris (Peter Conradi, ed.). Existentialists and Mystics: Writings on Philosophy and Literature. New York: Penguin Books, 1999.

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


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


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


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.

Some Illusions in Hunger Games and Initial thoughts Reply


I spent the last two days reading the Hunger Games — here are some initial thoughts on the book (with an attempt to avoid spoilers).

On the dystopian element…  This book had a lot of elements that reminded me of Margaret Atwood’s classic dystopia The Handmaid’s Tale:

  • The first person narration;
  • The role of obvious biblical symbolism (more on that in a moment);
  • The tension  between the main character and a person she is not sure she can trust (which happens to also be a romantic interest);
  • The presence of another Romantic character outside the Dystopic environment (but who has also been subjected to the dystopia in a different way);
  • The separation of the main character from both the life and environment she is accustomed to; etc…

I am curious to see if the author continues these elements in the second and third book (to be read this week).

On the Biblical Symbolism… The book is filled with biblical symbolism:

  • The twelve districts — the twelve tribes of Israel — The twelve disciples.
  • Formerly thirteen districts, until one betrayed the Capital — thirteen total disciples in the Bible, including Judas Iscariat, until Judas hangs himself after betraying Jesus;
  • Soooooo many references to fishes and bread as sustenance (the Country is Panem — the Latin word for bread) — Jesus’ greatest miracle the feeding of the 5000 with fishes and loaves of bread;
  • The Character Peeta — sure sounds like Peter;
  • The Character Cato  — a perhaps a reference to the statesman and General Cato the Elder serving under the reign of Nero, a notoriously anti-christian Roman emperor.  These are the obvious ones… (P.S. I am resistant to find the overall theme “Christian” in nature.  Perhaps, I am more likely to find the Biblical story to be dystopic — perhaps I will post on this sometime).  Nevertheless, there is an interesting write up on the Christian themes present here .

On Rhu…  In my opinion, the best character in the book.  She is mysterious, thoughtful, and trusting.

That’s all for now.


Law School Debt: A Frolic of our own or a Leviathan that can be tamed? Reply


Law school debt has been rising for some time.   Students graduating from American Law Schools with ever increasing debt loads, do not seem to match the earning ratio that would make law school debt a wise investment.  Over at Balkinization, Brian Tamanaha reports:

The average indebtedness figures for 2011 law graduates are stunning. Last year, 4 law schools had graduates with average debt exceeding $135,000. This year 17 law schools are above $135,000. Last year the highest average debt among graduates was $145,621 (Cal. Western); this year the highest average debt is $165,178 (John Marshall).

Tamanhana continues:

What’s remarkable is that the majority of graduates from these law schools–with the exception of Northwestern–do not obtain jobs with salaries sufficient to make the monthly loan payments due on the average debt. At some of these schools 90% or more of graduates with debt do not earn enough to make the loan payments on this level of debt (not all indebted students will carry the average debt).

Tamananha reports the twenty schools with the highest average debt per student.  One of the interesting problems raised by Professor Tamananha’s post is the number of California schools on the list.  Of the twenty schools on the list, seven of the schools are California law schools — four of the six lowest ranked schools in the State of California are on the list.   OF course, California is a place where nothing is cheap.

I admit as a Professor in a fourth tier school in California, I worry very much about the debt our students incur.    I began thinking about this problem when the occupy Wall Street protests began.  One of the unifying cries of the occupy Wall Street movement was a very sincere question — why give Wall Street bail outs instead of students.  At the time I thought that while this felt like a  just solution, if carried out, it would merely  place a bandaid over a problem that needed greater attention.   My perception at the time, and still, is we needed to approach the problem in both a macro and micro way — both institutionally and systematically.    We should not consider law school debt as a unique problem in American education — student debt is rising across all educational sectors.   This is not merely a problem of debt  to income ratio — though that is certainly one piece of the puzzle.

But we should not absolve institutions from responsibility either.  The responsibility of the law school to think critically about how it can put its graduates in the best position to obtain meaningful legal employment (besides passing the bar exam) seem integral to the evolving nature of the law school.  Different schools have taken unique approaches.  For example Northeastern has long used a quarter system so that the bulk of its students would be free to take on extern opportunities during normal academic year (instead of the summer when they find themselves competing with top 15 law schools for the same opportunities).  I think this strategy has been successful for Northeastern’s graduates.

Indiana University – Bloomington incorporated career services strategizing as a part of its PR class — forcing students to think about professional responsibility as a development program rather than a requirement for admission to the bar.  It seems that Fourth Tier schools in complex markets need to be similarly creative in thinking about how to maximize opportunities for students.  (This is not to say that the Career services people in various institutions do not work very hard for their students — but institutionally, career services receives, I believe, less attention than it deserves.

One solution might be to require  schools (at all levels) that accept Federal Student Aid to accept 50% of the student loan burden for students that are either not employed or enrolled in a graduate program eighteen months after graduation and until that student is employed and or in graduate school.   This would do a couple of things — first it would force schools to be more selective in the persons that they admit to their programs.   But the down side to this solution is that schools would then become risk adverse in the admissions process – -they would only admit the students that they are certain would be successful in both the job and the bar market.  This might be a harder point to gauge, than say bar success; but as risk averse as institutions tend to be, some metric would become a defining point for determining who is likely to be a “good risk” and who is likely to be a “bad risk.” It perhaps might also increase first year attrition rates, with law schools and other programs increasing class sizes to offset financial losses from lower class sizes in the second and third year.  Perhaps the burden to schools could be reduced by schools demonstrating that they (1) took active measures to enhance the marketability of its graduates at graduation; and (2) continue offering on-going support to graduates in their pursuit of employment opportunities.

Another additional solution would be for the ABA to require long-range reporting of student debt to income burdens of graduates.  Perhaps Jim Chen’s ratio of one-third tuition to first year salary is a starting point.  But then again, I am not sure that average debt ratios at graduation tell us a whole lot about the debt problem.   What we really want to know is what the debt to income ratio is during specific windows of time — one year, three years, and five years after graduation. We might be willing to live with higher debt if there is evidence suggesting a higher return.  That would also allow financial institutions to frame repayment plans in a manner that works for graduates.   Reporting this data and making it publicly available (through U.S. News) would create market pressure on schools.   Additionally, forcing schools to report debt information for all admitted students would again force schools to carefully monitor its admissions offices. Of course, this might also have the same impact as above — perhaps forcing schools to be more careful about its admission decisions, reducing the number of opportunity admits a school makes, or increasing law school attrition after the first year.

I think the most important point here is a broader conversation of all of the potential problems and risk outcomes we are not comfortable with.  While the law school (and educational bubble) points to weaknesses of American education, to craft a solution based only on the bubble would be as foolhardy as ignoring the problems that the bubble creates.

What are your thoughts?

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.

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.

The Devil and Tom Walker: A Property Tale — Part II: Property as mediator of human conduct 1


In my first post, I described how the landscapes shape the relationships in the Devil in Tom Walker.   Today, I am going to look at elements of the story that focus on the relationships of people to property.   To do so, lets pick up the tale where we left off.  In fact

As Tom returns from his encounter with the Devil, he reluctantly tells his wife of his encounter.  As we described in the first post, the relationship between Tom and his wife is centered around their individual quest to hoard property; there is no community action between the two.  What might seem to be an attempt to partner with her husband is really a selfish push to allow Tom Walker to absorb the risk of dealing with the devil for the mutual benefit of the gold.  But Tom remained determined to not “be damned to please her.”  The wife not to be deterred, attempts to negotiate with the Devil herself.   After her first attempt is unsuccessful, she returns offering all of their valuable chattels to the Devil — their silver teapot, silver spoons, and other belongings.  Later Tom, when he goes to look for her, discovers her apron with a heart and a liver tied in it.

As before, when the wife and Tom bickered over stashed items, Tom’s pursuit of his wife is more about retrieving the things she took than it is about retrieving her from Old Scratch.  Its even unclear whether Tom sought after her; though the author seems to believe he did.   Whatever the case, the story is clear that Tom was not remorseful for his wife’s loss.  “Tom consoled himself for the loss of his property with the loss of his wife; for he was a man of fortitude. He even felt something like gratitude towards the black woodsman, who he considered had done him a kindness.”  Notice how property in this last instance mediated the relationship (the broken relationship) between Tom and his wife.    Tom’s dissatisfaction of losing property is ameliorated by the loss of his wife — as if the spouse were another piece of property to be bargained away.

Ironically, though Tom does not have trouble accepting the loss of his wife as a good bargain for property (thereby reducing her to property to be bargained), he finds the Devil’s suggestion that he engage in the slave trade to be distasteful.  Tom’s distaste is difficult to explain.  His willingness to part with his spouse for a few chattels suggests he has no problem equating humans with economic value — as long as those humans are as wretched as his wife.  Likely, Tom’s reluctance to engage in the slave trade is a commentary by Irving on the moral choices made by slave opposed states.   The story is set in Massachusetts and was written in 1824.   This  should not be taken that Irving was particularly opposed to slavery.  As Kenneth Reed has pointed out, Irving was rather agnostic towards the plight of African Americans, and often used them in stories as a means of pointing to fallacies in his white characters — like Tom Walker.   In this instance, let me proffer a theory.  Massachusetts, and Boston were the sources of many anti-slavery advocates, like William Ellery Channing, William Lloyd Garrison and David Walker, who published his Appeal to the Colored Citizens of the World in 1829.  Though both Garrison and Walker come several years after the publication of the Devil and Tom Walker, there was brewing before that a sentiment that Boston was an anti-slavery society.

Much of the Bostonian view was symbolized in the preacher William Ellery Channing.   It is no accident that Irving has Tom Walker establish a usury business using pirate gold in Boston, and thereby become a respected member of the community, while refusing to take part on the tasteless activity of the slave trade.  Irving is pointing out the North’s hypocrisy in turning a blind eye to deeds that take advantage of others through ill-gotten or less-than-honorable means, while condemning the slave trade of the South.  In fact, we see as much glee in Tom Walker’s acceptance for opening a broker shop as a usury lender as he showed distaste for the slave trade.

“You shall open a broker’s shop in Boston next month,” said the black man.

“I’ll do it to-morrow, if you wish,” said Tom Walker.

“You shall lend money at two per cent. a month.”

“Egad, I’ll charge four!” replied Tom Walker.

“You shall extort bonds, foreclose mortgages, drive the merchant to bankruptcy-”

“I’ll drive him to the d–l,” cried Tom Walker, eagerly.

“You are the usurer for my money!” said the black legs, with delight. “When will you want the rhino?”

“This very night.”

Tom Walker then finds a successful career as a money lender.   His success is built on the failure of others, collecting large sums against defaulting lenders.  More than a few commentators have found allusions to the world of Tom Walker and our current lending climate (or at least the climate a few years ago). For Tom, though, the gold shapes his interactions with his clients.  It affords him the opportunity to be lenient, which he refuses.  Likewise, it shapes his revival as he realizes his soul will be called shortly, much like the loans for which he is calling.

At this propitious time of public distress did Tom Walker set up as a usurer in Boston. His door was soon thronged by customers. The needy and the adventurous; the gambling speculator; the dreaming land jobber; the thriftless tradesman; the merchant with cracked credit; in short, every one driven to raise money by desperate means and desperate sacrifices, hurried to Tom Walker.

Thus Tom was the universal friend of the needy, and he acted like a “friend in need;” that is to say, he always exacted good pay and good security. In proportion to the distress of the applicant was the hardness of his terms. He accumulated bonds and mortgages; gradually squeezed his customers closer and closer; and sent them at length, dry as a sponge from his door.

As with the miserly house from the first part, Tom’s property begins to reflect the condition of his soul. Tom “set up a carriage in the fullness of his vain glory, though he nearly starved the horses which drew it; and as the ungreased wheels groaned and screeched on the axle trees, you would have thought you heard the souls of the poor debtors he was squeezing.”
And Tom knowing the state of his soul does not seek mercy but seeks to best the Devil — yet another contrast to those in the social order that Tom is distancing himself from.   He attempts to out pious the pious and in fact leads them to believe he is more pious than they.  At the end of the day, its Tom’s failure to show mercy that warrants him no mercy from his own usury lender of the soul.
What is important from a Property perspective is the role that property plays in shaping the social relations around Tom Walker.  Property becomes the mediator between his wife and the devil; it becomes the mediator between illicit activities and Tom; and it becomes the mediator (or the stage) upon which Tom’s religion is played out.   In short, The Devil and Tom Walker illustrates the role of Property in shaping human interactions.
Here are some discussion questions like the last post.  What other questions would you raise?


Some Questions for Students Following Tom Walker:

Drawing on Justice Marshall’s opinion in The Antelope, how is Tom Walker’s moral position on slavery similar to Justice Marshall?  How is it different?

We talk about Property being primarily about “relationships amongst people to things;” is Property the primary tie between the characters?  Is there something else?

The Devil is primarily a bailor with respect to the pirate gold.  If Captain Kidd indeed never returned, should the Gold be treated as abandoned property?  Should it be treated as treasure trove?  Why?

Should we understand this story as a critique of the financial lending market?   Why or why not.

For more information See Kenneth Reed, Washington Irving and the Negro, Negro American Literature Forum (1970).