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

Lets be clear, interpretation of difficult texts requires imagination.

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

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

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

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

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

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

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

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

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

Literature and the Law of Torts Reply

Raghu Rai, “Bhopal Gas Tragedy” (In an interview Rai says he saw a Muslim family burying this little girl and asked them to remove the dirt from her face so he could take a photograph.)

At PrawfsBlawg, Jody Madeira writes:

“The last time I taught Torts, I came up with a (voluntary) ‘Torts and Tortes’ plan where interested students could sign up in groups of six to have dinner with me at a local restaurant.  That proved to be a lot of fun.  But this fall, I’m stuck.  I can’t easily implement Torts and Tortes again, because my 10-month-old has food allergies and so I have to modify my diet accordingly.  So I have thought up a new plan to implement a –“ book club” of sorts where interested students can read a book or two over the course of the semester and get together at a local watering hole to discuss them.  

For Law and Medicine, my selections are (I think) The Immortal Life of Henrietta Lacks and, for fiction, Kazuo Ishiguro’s Never Let Me Go (though I am torn between that and My Sister’s Keeper).  But I can’t seem to think of a second book for Torts.  So far I’ve selected Ken Feinberg’s What is Life Worth, about the 9-11 compensation fund.  I can’t seem to decide on a second book.  I’m not thrilled about obvious picks like A Civil Action or The Buffalo Creek DisasterMost of the other titles that spring to mind are criminal law-oriented.  Any suggestions?”

One reader recommends The Unit (2008 in English) by Ninni Holmqvist. I seconded the use of Russell Banks’s The Sweet Hereafter (1991) in light of the reasons found in Zahr Said’s paper, “Incorporating Literary Methods and Texts in the Teaching of Tort Law,” available here on SSRN. I also suggested taking a look at a book I’ve yet to read, Indra Sinha’s Animal’s People (2007), which was shortlisted for the Booker Prize. It is a fictionalized account of the aftermath of the Bhopal disaster, on which Sinha is something of an expert:

“Sinha has been a passionate campaigner for justice for the victims of the Bhopal disaster since 1993,when he created the first advertisement for the Bhopal Medical Appeal (using the now-famous photograph by Raghu Rai of a dead child being buried) that raised money to build a clinic to provide free treatment for the survivors. He is an outspoken critic of Dow Chemical Company, the multinational owner of Union Carbide, whose neglected, dilapidated and undermanned chemical plant in the city of Bhopal leaked 27 tonnes of poisonous gas on the night of 3 December 1984, killing up to 8,000 people and injuring upwards of half a million. Around 22,000 people have died as a result of injuries sustained on ‘that night,’ and more than 100,000 remain chronically ill; the abandoned, derelict factory continues to leach toxic chemicals into the groundwater, poisoning wells.”

Readers are invited over to PrawfsBlawg to proffer your suggestions to Jody.

Ethics, Literature, and (internally) Deliberative Democracy Reply


[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.


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. 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.

The Law and Sacred Spaces Part I: America in the Face of European Time Reply

I have been working on some scholarship for the past two years on Property Law’s interactions when law does not apply — a very social science view of law’s reach.  But part of the quest for how the law reaches into areas in which it does not apply requires us to understand how law accomplishes certain things.   For example, how is it that law purports to define purposes for space — whether those purposes are sacred purposes, economic purposes or what have you.   Over the next few posts, I want to look at the National Parks and how American law was defined by the purposes underlying the parks creation.   Particularly, I will pay heed to the writings of Susan Fenimore Cooper and her views of the National Parks as necessary to a broader American identity.

One way that we define purposes for space is through a process of political consensus.   The political process in creating the national monuments established by legislative action the cultural significance of certain natural areas – significance that did not have the benefit of time honored reverence by the culture itself. Such protection of organic spaces begins in the period that Alfred Runtes calls monumentalism, a period in which deep seated insecurity about the lack of national monuments, such as found in longer standing European countries pervaded the American psyche.   Attempting to establish itself as a peer with the older European nations, Americans could not look to man-made things of antiquity to claim cultural bona fides.  Instead, Americans would look to something not-man-made to fills its psyche and sights to strike awe as a country worthy of inclusion with the older historical, and castle laden countries of old Europe.   For the young country seeking to validate its existence to the world, it could not look about to find ancient structures that have stood for hundreds of years.  Existing American architecture was new, compared to cathedrals, castles and columned statehouses of France, England and Spain.  And the structures that America did have seemed temporary.  Instead, Americans looked to the natural wonders around it, particularly those west of the Rocky Mountains – land though virtually worthless for its economic use, could be quite bountiful as a place to strike an identity for the still young country.

Susan Fenimore Cooper described the tension between comparing the present and the struggle for American identity.  She begins her commentary by describing the effect of man over time in a land:

“The monuments of the succeeding age, raised by a more skillful people are much more prominent.  Indeed it would seem as if man had no sooner mastered the art of architecture, than he aimed at rivaling the dignity and durability of the works of nature, which served as his models.”

Of course as Cooper would go on to say, America, though holding an abundance of the later, lacked the former edifices that testify to man’s ingenuity and wisdom.  But it was not just the aesthetics of the ancient buildings that forced Americans like Cooper to look around and wonder about their own landscapes in comparison to their European counterparts, it was their age that defined the structures as emblematic of a thoughtful culture:

The durability of their architecture still remains to the present day one of the most remarkable characteristics of those ancient ages.  Such is the wonder excited in the minds of the most skillful architects of the present day at the sight of the immense masses of stone transported and uplifted , apparently at will, by those ancient nations that some have supposed them to have possessed mechanical power of their own, lost to succeeding ages and not yet regained by ourselves.  Certainly if would appear a well-assured fact, that the oldest works of the first great architects have been the most enduring and the most imposing of all that human art has raised.

And, from many Americans view point, these great creations have passed to all nations but America.  Cooper notes that Egypt has the great pyramids and India has her ancient temples.  The Roman and Grecian civilizations produced “architectural labors which for excellence and beauty” American struggles to find a comparison. And the civilizations of Europe, thanks to the Gothic architecture of the middle ages, are endowed with Cathedrals, castles and bridges, “which with a few exceptions here and there, [shall] outlast modern works of the same nature.”

Indeed, looking across the American landscape, persons such as Cooper were certainly remiss to find edifices that lasted the test of time.  But the test of time, was not merely showing the technological capacity of individuals to create lasting structures, but inspired the modern ages architecture to do likewise in these places.  America suffered with few architectural examples to follow and therefore know which ones to keep:

How different from all this is the aspect of our own country!…. The fresh civilization of America is wholly different in aspect from that of the old world: there is no blending of the old and the new in this country; there is nothing old among us.  If we were endowed with ruins we should not preserve them; they would be pulled down to make way for some novelty.  A striking instance of this tendency will be found in the fact that the last Dutch house in New York has disappeared.  For a long time a number of those historical way marks existed in the older parts of the town, but now, we understand that the last high gable, the last dutch walls, have disappeared from New Amsterdam.

Indeed, without a past that reveals itself in the sights of the American landscape, the American experiment might be deemed to be like its architecture – slight and fugitive.  America needed something different to claim as establishing its antiquity.

Next Post — Natural Monumentalism


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?

Good Commercial Faith and the City: What Adam Smith really would say… Reply

In teaching a Property Seminar,I have asked students to write response essays to books that have property themes.  One student, Jim Dickinson (employers out there, hire this guy now), decided to take on Milton Friedmon’s Capitalism and Freedom.  In doing so, I suggested he read Deirdre McCloskey’s Bourgeous Virtues: Ethics in an Age of Commerce.  James wrote back this past weekend and said: “I began reading it this morning, and it is very helpful.  The author is brilliant and hits on points that Friedman leaves out.  McCloskey brings to light the other side of the capitalism, the side of exercising personal virtue, that Friedman omits.”

So I decided to dig through the archives and find a post I wrote about three years ago for Commercial Law blog.   Enjoy!

This post appeared on Commercial Law Prof Blog March 18, 2009

I want to talk about commercial virtues. One of the troubling aspects of commercial dealings today is the focus on ethics. Truthfully, I despise the topic (perhaps because I was never very good at the subject in either theological classes or law classes — like professional responsibility for one). But the real reason I despise ethics, my own discordant academic performance in the subject aside, is I think we are often times asking the wrong questions. We assume that by ethics, we mean some form of social responsibility, but more often than not, that responsibility is defined by communities of interest, rather than greater social values. Consider the problem with UCC 1-201 and the definition of good faith. Do we really mean good faith is “honesty in fact” when we combine that with the observation of “reasonable commercial standards of fair dealing”. Which takes precedence — clearly the latter. The secured lender that tells only part of the story to his debtor (your income statement is a mere formality) has not been completely operating with “honesty in fact” though his actions may well fit within the constraint of reasonable commercial standards of fair dealing — after all, fudging your income was hardly the act of just a few bad apples. The subjective element of good faith gives way to the relevant community that defines what good faith means.

Deirdre McCloskey in her defense of capitalism, aptly named, the Bourgeois Virtues, makes many debatable claims that Capitalism makes the world better (many of which I will not attempt to defend). But what McCloskey does get is that commerce (and commercial law) urges the continued development of social structures for the betterment of the individual within a community that is itself working to be better. Her perspective is that capitalists, like Adam Smith understood that capitalism was constrained by a quite powerful force — the internal virtue of the individual.  Quoting Rabbi Starks, McCloskey writes:

It is the market — the least overtly spiritual of contexts — that delivers a profoundly spiritual message… The free market is the best means we have yet discovered… for creating a human environment of independence, dignity and creativity.

McCloskey’s message of capitalism as a movement of social ingenuity is at its core the spiritual message of hope we find in some of our best religious literature. The prophet Jeremiah admonished the Israelites in Captivity:

This is what the Lord Almighty, the God of Israel says to all those I carried into exile from Jerusalem to Babylon: ‘Build houses, settle down; plant gardens, eat what they produce, Marry and have sons and daughters; find wives for your sons and give your daughters in marriage so that they too may have sons and daughters. Increase in number there do not decrease. Seek the peace and the prosperity of the city to which I have carried you into exile. Pray to the Lord for it, for if it prospers, you too will prosper

Ralph Waldo Emerson also saw that hope comes from capitalist engagement but only when the mind is able to reflect upon its work. Emerson distinguishes between the Brute Economy, in which labor and strength build vast empires of material longing only (i.e. its good to spend money to relieve us of the pain of 911), with the capitalist economy which employs intellect in an analytical expansion of labor, material and wealth. What Emerson says the Capitalist lacks is the moral and spiritual wisdom of the poet – “who acts upon nature with his entire force — with reason as well as understanding.”

The virtue of McCloskey’s work is that Commerce (and capitalism) share a common goal of enhancing our social order, instilling the hope that we might reshape “the city” into an image that is not of ourselves as we currently stand, but of the selves that we might one day hope to be, both individually and collectively. And that actions should be weighed and measured against both of these standards. Whether we segregate capitalists from capitalist poets, we nonetheless, come to the same conclusion as Emerson and McCloskey — that commerce creates the potential for humans to be good.

Which brings me back to 1-201. Do we really want good faith to be watered down by community constraints or is there a moment for reflection of the aspirational norms that commercial dealings might adhere to? I was much happier when good faith was simply “honesty in fact” without the burden of community differences, whatever that might mean — even if the aspirational view of good faith was nearly impossible to enforce.

To buy a copy of the Bourgeous Virtues, click the link: