Simkin’s Dormitory Part II Reply

Over at the Lounge we are having a good discussion on the role of history and remedial acts.   Tom Russell, the author of the article that revealed the Klan affiliation of the Simkins Dormitory namesake, has chimed in with some thoughtful comments.  (Tom may stop by the Table as well to offer his thoughts more fully).  For now, allow me to provide Tom’s comments to Al Brophy’s latest post here, as well as my response.

Tom said:

Let me say briefly, though, if UT stops honoring Prof. Simkins by taking his name off the dormitory, plenty of opportunities to discuss race, history, and law will remain on UT’s campus. For starters, a portrait of Simkins hangs in the law library; I’m fine with that. There is Painter Hall and the Sweatt Campus. There’s a statues of Gen. Robert E. Lee and Pres. Jefferson Davis; buildings named after confederate soldiers; the Darrell Royal stadium, and a host of other monuments, none of which I think should be removed or renamed.

On the flip side, there’s also no reason to believe that The University of Texas would in fact turn Simkins Hall into the history lesson that it might be. The history of the university’s administration suggests the opposite.

Finally, I do not believe that those who are harmed or insulted by Simkins’s undeserved honor in having his name on the building should have to continue to experience insult or injury in order to provide a possible history lesson to whomever is subjected to a plaque, lecture, or website post. I’m looking for the right metaphor to describe this–something along the lines of “We won’t set your broken arm because it’s a good teaching opportunity.”

I have posted the following response to Tom’s very good points:

Allow me to offer a brief interjection. First, let me say that your logic is thoughtful and I don’t want to sound like my disagreement is in anyway critical of the importance of the work you are doing in this area. I also agree with you that we have to be very careful not to cause further insult to those populations that are offended (and should be offended) by this vile representation of an awful past.

With that said, however, let me push back on a couple of points. I think it matters greatly to distinguish between opportunities to talk about race and the methods that we use to talk about race. In my mind, this is not just an opportunity to talk about race relations. I agree that there are many opportunities to do so in a variety of contexts. Rather, this is whether we are going to faithfully represent our past as we have those discussions. Let me key in in on two comments.

First, I don’t think the metaphor of a setting a broken leg is not quite correct in this case. Legs can be fixed and show virtually no signs that there was ever a problem. I also worry that the analogy suggests that we may try to fix something. If we are trying to fix the past, then I have real reservations for all of the reasons described in the first post. I think the better metaphor is the environment. Like so many of our actions in the environment, we do things that cause harmful effects, that cannot be undone. However, what we can do is begin to live more responsibly with what we have. This can have a powerful effect. In some ways, it can rehabilitate the environment. In the same way, we cannot undo the Simkin’s name on a building. It has been done. But we can begin to live more responsibly with it by having frank discussions about its impact, and adding to its vile nature something that better represents our normative view of the world.

Second, if the University of Texas is not inclined to deal responsibly with its past as suggested, isn’t it just as important to maintain the building’s name as a reminder that we have not come as far as we think we have? It seems to me that we often remove uncomfortable things from sight, when they remain just as powerfully present as they did before we covered them up. Changing the landscape rarely changes the actual environment. Perhaps the building’s name serves a purpose of reminding us of how far we still have to go, rather than allowing the name’s removal to fool us in believing that we have actually come pretty far.

This is a very thoughtful discussion in which the relevance of the historical narrative has meaning for our everyday interactions.  Your comments are welcome.  Come join the discussion, either here or at the Lounge.

Don’t take that Name off the Building 4

This week, the University of Texas began to wonder whether to remove the name of William S. Simkins from one of its dormitories. Simkins was a confederate soldier, a professor in UT’s School of Law (from 1899-1929, and most problematic for UT today, a member of the Klu Klux Klan. The building was named for Simkins in 1955 in recognition of his work for the University — and perhaps symbolically to identify Texas’s desire not to integrate.

The controversy came to light when Professor Tom Russell, formerly as faculty member at UT published on SSRN the paper Keep the Negroes Out of Most Classes Where There Are a Large Number of Girls’: The Unseen Power of the Ku Klux Klan and Standardized Testing at The University of Texas, 1899-1999 . In the abstract, Russell writes: “During the 1950s, the memory and history of Professor Simkins supported the university’s resistance to integration. As the university faced pressure to admit African-American students, the university’s faculty council voted to name a dormitory after the Klansman and law professor.” Later, in an interview with Texas Lawyer, Russell says: “I think it’s inappropriate for the University of Texas administration to continue to honor Professor Simkins by keeping his name on the dormitory.”

I am quite sympathetic to Professor Russell’s feeling that Simkins name is inappropriate on a building dedicated to equality and enlightened education. I am afraid, though, that through efforts like these, we will look back on our history and wonder why we felt the need to purge it so. History is made up of the good and the bad, of good people making bad decisions, of bad people making thoughtfully astute and beneficial decisions, and everyone else caught in the milieu of time and happenstance. On the one hand, we cannot and must not belittle the real offense that African Americans must suffer by the presence of a name connected with a vile racist past. But on the other hand, does removing the name really bring us comfort that the University has disassociated itself with its racist past. For as long as there have been people that have crossed the University of Texas campus since 1955, the building will forever be called Simkins Hall; I imagine that for some generations that will continue. Indeed, short of imploding the building from the grounds and eradicating its memory from the space it occupies, Simkins will forever be known as a part of the UT campus, both the prejudicial Simkins and the University contributor.

But perhaps more problematic than the persistence of memory, is the loss of memory. Maybe we don’t feel comfortable talking openly about a person’s indiscretions, particularly once they have died. I imagine that there might be some hesitancy in leaving Simkins name on the building in order to have a frank honest discussion of race and our past. We choose to remove rather than discuss, and in doing so, deprive our children of the mistakes we have made. Robert Penn Warren wrote beautifully on this point in talking of the role of purge tendencies in the anti-slavery context. Warren writes:

“Man [can be described] as a total abstraction, in the pure blinding light of total isolation, alone with the Alone, narcissism raised to the infinite power….But social problems are rarely to be solved by men totally outside of society — certainly not by men not merely outside of a particular society but outside of the very concept of society. For if all institutions are “dirty” why really bother to amend them? Destruction is simpler, purer, more logical, and certainly more exciting. Conscience without responsibility — this is truly the last infirmity of the noble mind.”

Yes. Destruction feels cleaner. But if it feels cleaner its because we have grown uncomfortable with the dirt we can see. There is more dirt around — we have not yet had time to notice (or maybe never will notice) its impact, or to yet be uncomfortable with its role in our own development.

So instead of renaming the building or taking Simkin’s name down, do something enlightened. Build a prominent display in the building that speaks openly and honestly about the struggles the UT campus has had with race; maybe add a name to the building of a person that fought for civil rights in the State of Texas to pair along side Simkins – perhaps Marshall and Simkins Hall. Take the opportunity to recognize our vile past, and talk openly about it. Our future generations will be better for it. In each of these things, the University will be responsible with its past, which includes honoring for a time a person whom the University is not proud of in every respect and recognizing that the University can mature beyond the narrow ideas of a few.

Update:  There is a nice write up on the controversy at the faculty lounge here, along with a set of links to the controversy. Tom Russell in comments provides more information on the controversy as well as a call for responses to the Texas Board of Regents planning to meet on the issue soon.

Update 2: Al Brophy at the Faculty Lounge talks about the role of historical memory in decisions to take down emblems from our racist past here.  In the comments, Tom Russell provides some thoughtful responses, to which i will respond soon.  This is a great discussion!

Quote from Robert Penn Warren, The Legacy of the Civil War

Announcing: The Literary Table Zotero Project/ Twitter Access/ Contributors 1

One of the functions that I hoped the Literary Table might help to fill is the ease of collecting in a central place resources for those who teach in law, literature, law and literature, and related areas.

I am pleased to announce that the Literary Table has opened The Literary Table Zotero Project. Zotero is a research gathering tool that runs through Firefox. Recently, the Zotero project introduced a collaborative aspect. Users can create communities of users to view materials that are stored in libraries and even to contribute materials. This is exactly the type of collaborative mindset that the Literary Table is interested in. The tool is very easy to use. Once installed, while browsing through the internet, if you find something that would be of interest to the Literary Table Community, tag it with Zotero and drop it into the Literary Table Library. Presto! You have shared a resource that someone here would find valuable.

The community is open to anyone to view. However, you must be a member to contribute to the library. I would like to open up the library to any and everyone that has materials to contribute to the law and literature discipline. Simply join Zotero here and then add the Literary Table as a group.  I have added collections for:

  • Puritan Resources
  • Herman Melville’s Bartleby the Scrivener
  • Herman Melville’s Billy Budd

Follow us on Twitter/ Subscribe

You can now follow the happenings at the Table on Twitter here.   Also, don’t forget about the subscription option to receive The Literary Table directly to your email at the top of the page.

Still Looking for More Contributors

We have been fortunate to have Patrick and Allen join us at the Table.  The conversation has been insightful and provocative.  But we want more.  Please consider blogging at the table this summer and there after.  If you would like more details, email me at warren[dot]emerson[at]gmail[dot]com.

Returning from the Oklahoma Sovereignty Symposium 5

I have been traveling allot the last few weeks.  One of the places that I have been, and which I am returning is the Oklahoma Sovereignty Symposium in Oklahoma City, OK.  This is my first year going and it was well worth the drive.  I was blown away by the Parade of Nations, in which the tribal nations of Oklahoma entered the arena.  I was captivated by the conversations and found myself wishing I had more to contribute.  But on a certain level that seems to be appropriate when we are talking about Native Americans and the law doesn’t it. Our narrative history (I am Choctaw) chants a song that is only heard by some, but when heard is a testament to our life, our struggles and our status as a people.

This years theme was “as long as the grass grows.”  How fitting a phrase for Indian law itself.  As long as the grass grows beneath our feet, Indian law will continue to whisper the remnants of our past.

While I was sitting in the panels and listening to the rich dialogues that of themselves gave birth to the peoples and their stories, I began to think about what types of texts might fit in a law and literature course.

Of course Nathaniel Hawthorne wrote about Indians: we have talked about Roger Malvin’s Burial and Lovewell’s fight in the French and Indian War here; however, Indians in Hawthorne’s tales are mostly in the background — setting for the action of the european settlers. This is in contrast to his contemporary James Fenimore Cooper who romanticized the American Indian (Last of the Mohicans remains a favorite (book and movie).

Another book that looks at the Indian as confronted with modernity, is Sundown, by John Joseph.

A modern piece of literature that struggles with identity, family, and modernity is The Bean Trees by Barbrara Kingsolver.   I keep meaning to read her follow up to that book Pigs in Heaven, though perhaps this summer. Animal Dreams is also a good read.

Perhaps though the best book is Robert William’s The American Indian in Western Legal Thought. William’s historical and cultural sensativity make this volume a must for anyone contemplating Indian Law.

What other works by or about Native Americans should be included in a Law and Literature Course?

Video and Song: Ghost Dance by Robbie Robertson

Edgar Allan Poe and Mesmeric Possibility 4

Sidney E. Lind, writing in the 1940s, said of the “mesmeric lexica” of nineteenth-century America:  “It is safe to say that the terminology of mesmerism was bandied about in much the same manner as the language of psychoanalysis was to be eighty years later, and with, in all probability, as little real comprehension on the part of the public.”

Lind’s reference to psychoanalysis—signified, at that moment, by Austrian physicist Sigmund Freud—is particularly telling for 21st century audiences, who have witnessed an avalanche of criticism of psychoanalysis, a pseudoscience, according to the naysayers, the results of which are un-testable at best and bogus at worst.  Lind’s aim is not to destabilize the practices of psychoanalysis but to interrogate three short works by Edgar Allan Poe in which mesmerism features prominently:  “A Tale of the Ragged Mountains,” “Mesmeric Revelation,” and “The Facts in the Case of M. Valdemar.”  “These three stories,” Lind submits, “constitute a series within which the mesmeric experiment becomes more profound, irrespective of plausibility or implausibility, or of whether or not Poe in at least two of the three was hoaxing his readers.”

Lind’s point is well-taken.  In Poe’s day, the subject of mesmerism was “in the air” and therefore “it was logical that Poe, as a journalist sensitive to popular interest, should have exploited it.”  True, these three stories exhibit, often wryly, a profound familiarity with mesmeric techniques and influences.  But more is going on in them than Lind lets on.  Indeed, Lind goes to great lengths to contextualize these stories within scientific (or other) discourses on mesmerism in Poe’s era, but he overemphasizes their “unity,” “theme,” and “intention” (always mimetic) instead of their singular dialogic contribution.  That is to say, Lind treats the stories as “echoes” or “reiterations” of other thinkers rather than as unique theses in their own right.  For Lind, the stories are indebted to other sources because they derive their vocabularies and methods from these sources.  I would suggest that Poe’s stories are in conversation with various dissertations on mesmerism rather than mere signs of cherry-picking or copying.  Although Poe’s modus operandi or preferred genre is fiction, his supposedly plagiarized passages lend substance to the notion that he might actually have been dissertating on mesmerism, animal magnetism, or hypnosis.  The luxury of storytelling is that the storyteller can dismiss unverifiable data as hoaxes or products of imagination; nevertheless, the storyteller can at least hope to hit on something real, novel, or scientific.  Two examples, Jules Verne and H.G. Wells, writing well after Poe, conceived of technological advances—most notably space travel—long before such advances were practical.

Lind’s work, at any rate, is impressively researched, laying the foundation for future analyses of Poe and his infatuations with mesmerism.  But why does Lind downplay Poe’s role in developing pioneering work?  All arguments are indebted to previous arguments; indebtedness does not take away from the originality or force of their articulation or genre.

Unlike Lind, Matthew A. Taylor calls attention to the distinctiveness of Poe’s contributions to “mesmeric theory” (for want of a better phrase) and its progeny.  He locates Poe in contradistinction to Herbert Mayo:  “Unlike Mayo, […] Poe radically deviated from the utopian utilitarian, or benign notions of mesmerism at play in most contemporary discourses on the topic, picturing instead the unsettling implications for human ontology consequent upon the idea that persons are less sovereign entities than manipulatable effects of external powers.”  In short, Poe considered mesmerism a bad thing, or at least a dangerous thing that did not lead down a road to human improvement.  “Poe concluded,” Taylor opines, “that an all-encompassing cosmic energy inevitably troubles human-being by suspending the autonomy and interiority of individual humans; the disorientation of normal, corporeal functioning and the literal loss of self-possession attending mesmeric practice illustrated for Poe the fact that people are little more than occasions for the demonstration of an impersonal power.”  If Taylor is right, then Poe’s take on mesmerism is not only unique but also quite sophisticated; it demonstrates a full understanding of mesmeric theory while simultaneously rejecting that theory.  More to the point, if Taylor is right, then Poe’s take on mesmerism stands on its own and demands critical attention.  Unlike Lind, Taylor seems to acknowledge Poe’s special role in shaping mesmeric theory—or, more precisely, mesmeric counter-theory.  In fact, Taylor seems to think Poe’s ideas about mesmerism reflect an entire cosmology about human nature and the imperfectability of humankind.  This is a tall claim.  For present purposes, it shows that Poe might have been worried about more than entertaining readers with fanciful mind-candy.  He might have been positing a worldview that flew in the face of prevailing physics (that “perverse yet consistent calculus that unites everything in existence under a single, universal law that, by definition, eliminates all difference—including, of course, the human difference”).  Poe, the relativistic Renaissance man, might have been demonstrating his facility as both scientist and philosopher.  To further establish Poe’s uniqueness, I might add to Taylor’s observations the theological dimension of “Mesmeric Revelation,” which accounts for evangelical objections to mesmerism without plainly endorsing or rejecting them.

Besides the three stories that Lind interrogates, there are, Martin Willis claims, “many other tales that exemplify [Poe’s] abiding interest in the contestation between the science and the human, as well as his fascination with the borderlands of scientific achievement, both in terms of their advancement to new states of knowledge and their place within the scientific pantheon.”  Poe’s interest in scientific trends was not a passing one.  Willis points out that Poe spent years studying science in general before turning to mesmerism in particular.  Whether Poe “believed” in mesmerism is unclear.  It seems plausible that his stories about mesmerism were meant, in Willis’s words,  to “consider mesmeric debates in the realm of fiction rather than that of science.”  I would argue that Poe collapses any distinction between science and fiction by teasing out various theses—which, for all he knew, might one day be proven—through the medium of imaginary characters.  In doing so, Poe forges a distance between theories and their authors: if the theories turn out to be “true,” future generations will consider Poe a genius; if they turn out to be bogus, future generations will claim Poe was merely hoaxing.  Thus the dual-advantage of employing fiction to hash out scientific hypotheses.  Regardless of whether Poe is ultimately “right” about any of his dissertations, which he dresses up as fiction, he demonstrates an impressive breadth of knowledge that should not be ignored.

Not all scholars have ignored it.  Antoine Faivre takes pains to explain how Poe appropriated scientific knowledge and then inserted it into fictional narratives.  He suggests that many readers have mistaken or misread Poe’s tales as “factual, non-fictional case studies,” which in turn has led to a “flurry of reactions and debates.”  My point is not to argue that Poe treats his stories as factual case-studies but to suggest that he left open the case-study possibility.  In other words, Poe might have wanted readers to misread his tales as factual, or else to have some later scientist come along and verify the “truth” of his hypotheses, notwithstanding whether they were in fact his, or whether they were intended as reasoned argument at all.

Lind allows that Poe might not have been hoaxing readers in writing about mesmerism.  “Mesmerism as a theme for fiction,” he explains, “was, like metempsychosis and the exploration of the realm of the conscience, so well suited to Poe’s principles of literary composition that it was natural for him to work this new field, to attempt to achieve the sensational without deliberately attempting to mislead.”  More than simply avoiding misleading commentary, Poe might have been dissertating with the hopes that, one day, scientists would look on his fiction as a catalyst for new and innovative practices.  While not aspiring to complete verisimilitude, Poe’s stories about mesmerism are highly sophisticated tracts, informed by trendy scientific theories (and their counter-discourses), and very probably marked with the faint expectation that their subjects, though fictional, might somehow contribute to future systems of knowledge.

See the following for further reading:

Faivre, Antoine.  “Borrowings and Misreading:  Edgar Allan Poe’s ‘Mesmeric’ Tales and the Strange Case of their Reception.”  Aries, Vol. 7, No. 1 (2007: 21-62).

Lind, Sidney E.  “Poe and Mesmerism.”  PMLA, Vol. 62, No. 4 (1947:  1077-1094).

Torrey, E. Fuller.  Freudian Fraud:  The Malignant Effect of Freud’s Theory on American Thought and Culture. Lucas Publishers, 1999.

Taylor, Matthew A.  “Edgar Allan Poe’s (Meta)physics:  A Pre-History of the Post Human.”  Nineteenth-Century Literature, Vol. 62, No. 2 (2007: 193-221).

Willis, Martin.  Mesmerists, Monsters, and Machines:  Science Fiction and the Cultures of Science in the Nineteenth Century. Kent State University Press, 2006.

Losing their Religion, or The Ironic Reader of Judicial Religious Temperment 1


How should our Supreme Court justices embrace their religious preferences? In another stunning blog post on CNN Stephen Prothero confronts the tendency to think that justices of the Supreme Court lose all personal touch with the world in which they have lived — a world that largely includes religious temperaments and experiences. (We have blogged about Stephen’s other posts here). Stephen writes:

If Supreme Court justices were impersonal computers, taking in laws and facts and spitting out impartial decisions, then we would not need religious diversity on the court. We wouldn’t need racial or gender or regional diversity either. Nine old white Catholic men would work just fine. Or for that matter nine young African-American Muslim women. But the world is what it is. And it is in the real world, not the world of should and supposed to, that the flawed and imperfect human beings we call justices operate.
So here is the question I would put to my critics: Are human beings creatures of objective thought, able to click their fingers and magically set aside their biases, passions and “self-love”? Or are we creatures of subjective passions whose interests should be subject to the sorts of checks and balances that Madison so vigorously defended and a diversity of experience offers?
Judges do make decisions based on experience. Holmes’s haiku laden phrase “The Life of the law has not been logic; it has been experience,” begs the question of whose experience (did not know that this quote maintained a 5-7-5 structure did ye?) If the experience of the law is the collected experience of us all, then perhaps the law should be agnostic towards the individual faith. But as we know, the law’s experience has excluded as much as its included, whether by race, wealth, gender, property or sexual orientation, the law’s experience has not been all of our experiences. Why then should we expect the experiences of the whole, to be excluded because we perceive that the whole has been adequately represented. After-all, should we treat our judges as potted plants? See i.e. Richard Posner, What am I? A Potted Plant?, The New Republic (1987).

These tendencies to down play the individual experience in favor of the collected experience is revealed perhaps most acutely in one’s religion. We can see that in the exchanges during oral arguments with Antonin Scalia and Anthony Kennedy, during the Salazar v. Buono hearing. (Salazar v Buono involved the maintenance of a cross in the Mojave National Preserve erected by the Veterans of Foreign Wars after World War I). Both of Scalia and Kennedy are devoutly catholic. At one point, when it was suggested that a Jewish star would more appropriately honor the Jewish soldiers that died in World War I, Scalia responded
It’s [the cross is] erected as a war memorial. I assume it is erected in honor of all of the war dead. It’s the—the cross is the—is the most common symbol of—of—of the resting place of the dead, and it doesn’t seem to me—what would you have them erect? A cross—some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?”

Later in the same oral argument, Justice Kennedy said:

Although certainly a Christian symbol, the cross was not emplaced on Sunrise Rock to promote a Christian message . . . Time also has played its role. The cross had stood on Sunrise rock for nearly seven decades before the statute was enacted. By then, the cross and the cause it commemorated had become entwined in the public consciousness . . . Congress ultimately designated the cross as a national memorial, ranking it among those monuments honoring the noble sacrifices that constitute our national heritage . . . a symbol that . . . has complex meaning beyond the expression of religious views . . . one Latin cross in the desert evokes far more than religion.

I want to point out that both Scalia and Kennedy seem to neutralize their religious sentiments in favor of a secularized view of the cross. Let me say, they are right. The cross serves a secular function in our country, depicting our shared national myth of a Western Christian world. But here is the ultimate question. Who actually believes the justices when they down play their religion. Scalia, more so than Kennedy created substantial commentary largely because it was so shocking to hear him, of all justices, secularize a symbol of his own religion. These justices cause us to consider whether their words are to be read through the lens of an ironic reader. Just as we might question the double meaning of Billy Budd’s “farewell to the Rights of Man” upon being conscripted aboard an English vessel, we might also question the ironic tone of Scalia and Kennedy’s remarks. Scalia and Kennedy want us to believe that they can take off their religion like a coat and commence judging, saying “farewell ye vestments of faith.” Like Prothero, I seriously doubt that they can. Like Billy Budd, I am not sure we should read them literally even if they think that they have succeeded.

Richard Parker in Law and Literature Reply

Richard Parker is a name that is synonymous in Law and Literature with the same defilement of the profane. Cannibalism. Yes — Richard Parker pops up cannibalized on a regular basis in literature and law.7 Most recently, Richard Parker was a tiger trapped in a boat in Yann Martel’s Life of Pi, a wonderful little book on limits of humanity. Author Yann Martel said regarding his character, “So many Richard Parkers had to mean something.” And again, Richard Parker indulges in human flesh. wpid-richardparker.jpeg

The first significant occurrence of Richard Parker in the law was in 1797 when one Richard Parker (pictured) was involved in the Nore mutiny — a copycat exercise by British sailors of the Spithead mutiny in an attempt to obtain higher wages. Parker, for his excellence at leadership, was hanged at sea.

Then, in 1836, Edgar Allen Poe wrote The Narrative of Author Gordon Pym of Nantucket, Poe’s only novel. In the story, after a mutiny and a terrible storm which left the sailor’s ship debilitated, the four remaining sailors draw straws to determine who should perish, so that others would not die of starvation. In Pym, it is Richard Parker who suggests cannibalism as a resort to survival. But in a twist of irony, Parker is the poor sole who receives the short straw and is eaten by his three companions.

And in a strange twist of mystical coincidence, nearly sixty years later, the same circumstances by which Richard Parker in Poe’s tale was subject to the cannibal rages of his human companions, another REAL Richard Parker died to the appetite of those lost at sea. Those of use who studied law may recall the English case K v Dudley, (1884) 14 QBD 273 (QB), which was a prominent case in my criminal law text book. In Dudley, like in Author Gordon Pym, three shipwrecked sailors draw straws for whom should die so that the others might not die. Many theories abound regarding the coincidence. My favorite is that Poe tapped into a time dimensional world during an opium high in which he foresaw the poor, poor fate of Richard Parker. The other more popular theory is that reality took a turn imitating fiction — the sailor’s familiar with either Poe’s tale of the mutiny on the Nore saw Richard Parker as a fated soul.

And of course there is Richard Parker, the legal scholar at Harvard who wrote this nice column in the Boston Review. Whatever the case, Ah, RIchard Parker. Your name is fated to be remembered.

6 Catholics + 3 Jews = 9 Protestants 4

Stephen Prothero, writes on CNN that the religious diversity of the current court may not be as diverse as it appears and may actually just be the same old protestant court that we have all grown to love.wpid-americanjesus.jpg

Prothero has written some interesting pieces. Religious Literacy is perhaps his best known work, but probably his best was American Jesus: How the Son of God became a National Icon. Here is a quote:

Historians like to believe that their work is exempt from the rough and tumble of contemporary concerns. But objectivity is a concern on both sides of the Christian America debate. Participants often oscillate between the descriptive and the normative, confusing what is (or was) with what ought to be. They also routinely conflate demographic, legal, and cultural questions forgetting that a country may be Christian in one respect and secular in another. Typically those that understand the United States as a multi religious country focus on the law and cheer on religious “outsiders,” while those who emphasize its Christian character focus on demography and cast their lot with the “insiders.” While for one group Christian dominance (either real or perceived) is the problem, for the other it is the solution.

What is interesting about Prothero’s observations in the CNN column is the conflation that has occurred across religious boundaries. We seem fairly comfortable that religion has become a historical fact more than a persuasion of interests. Of course we talk about Catholic opposition to Abortion every few years, but in large measure the religious preference of a judge maintains little value EXCEPT when the other pieces of the judges activities suggest that his religion is not the sort that we want serving on the court. The mixing and blurring of religious ideology has, in short created a pluralized democracy of religiosity in which to participate one must at least have a religion to be taken seriously, but then mitigate his religion into the beliefs of the whole.

Is this a good thing? Part of me says yes (I suppose the part that defers to the law and cheers on the outsiders) and part of me says no. Like Prothero I wonder, where are the Muslim judges? Where are Buddhist, Agnostic and Evangelicals.

Can Law and Literature Function without Historical Narrative? 3

When I took law and literature in law school, it was frankly the best class experience of my education (sorry unnamed property prof — the rule against perpetuities still haunts).

But one thing that was missing when I took law and literature was the connection of the literature to any emerging cultural narrative or norm. We read lots of great books, many of which I have incorporated into my own law and literature course. But they were all disconnected from one another, except for the shared discussions of authorship, irony, the task of writing, etc… The course essentially became a course in the Great books of the world… with legal narratives behind them. Don’t get me wrong. That’s is a wonderful course, and I suspect for most law and literature profs it functions as an ethics alternative to the universe of professionalism that has engrafted legal education for the last hundred years — retrenching liberal education in the law school halls if you will.

In my own law and literature course (this is the third time that I have taught the class) I have attempted to incorporate a greater sense of historical connection between literature and the law. Perhaps my view of literature and the law is best summed up by Robert Penn Warren reflecting on Cass Mastern in All the King’s Men:

Cass Mastern lived for a few years and in that time he learned that the world is all of one piece. He learned that the world is like an enormous spider web and if you touch it, however lightly, at any point, the vibration ripples to the remotest perimeter and the drowsy spider feels the tingle and is drowsy no more but springs out to fling the gossamer coils about you who have touched the web and then inject the black, numbing poison under your hide.
Each time that I have taught the course, it has been a reflection of the culture of American law — so only literature by Americans or about America (my students read Margaret Atwood’s Handmaid’s Tale which is set in Gideon or Evangelically reformed America). So out are Antigone, or even Jean Anouilh’s version of Antigone (set against a German occupied France in World War II). We don’t read Charles Dickens’ Bleak House, or Fydor Dostoyevsky’s Crime and Punishment or Brother’s Karamozov. And we don’t read Kazuo Ishiguro’s Remain’s of the Day, one of my favorites. And of course, no Shakespeare.

Looking back over the list of works that my students miss out on, started me thinking about what other ways I could incorporate the historical narrative against the backdrop of literature and the law. Perhaps a study of 19th century literature would reveal a growing consciousness between wealth and poverty. That would be fun — Dickens’ Oliver Twist and Doystoveski’s Poor Folk anyone? Perhaps an obvious catalyst would be a course “Literature in the Age of Revolution.” William Wirt’s Letters of the British Spy , Victor Hugo’s Les Miserable, and Dickens’ Tale of Two Cities would be great. Perhaps even some twentieth century memoirs/ biographies around revolutions –, maybe Reading Lolita in Tehran for the Iranian Revolution and Che Guevara, A Revolutionary Life for the South American/ Cuban Revolution? (At the very least, we could educate our students about who the guy on their t-shirt is).

What other historical narratives could you see using in Law and Literature. Also, then, how is law and literature different from Legal History?