Tag Archives: Law school

Magic and Muggle Toys as Metaphors of Translation: How Harry Potter makes a case for Literature inclusion in the legal curriculum Reply

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Last week, Warren wrote about the blessings of reading as a dialectic navigating imaginations within the law school curriculum; and I wrote two pieces describing how at least one short story could be used to better explain property — See Devil and Tom Walker I and Devil and Tom Walker II.  Today I want to draw on metaphors from Harry Potter to further this case that the law curriculum needs literature infused within it.

Throughout the Harry Potter series there is divide between muggles, muggle things, and the magical world.  For example, the ministry of magic has an office for the misuse of muggle artifacts in which muggle things are confiscated when they have been bewitched.  Similarly, muggles (or non magical folk) are not permitted to use magical things, at the cost of having their memories wiped in the event they do stumble onto magical things.  And yet, despite these stark separations, we see instances in which muggle things are used in the magical world.  Radios are used to communicate with members of the order in the final book to advance a magical agenda.  The passage way to one’s magical education begins at a muggle train depot (King’s Cross), though again with a separate platform secured behind the veil of a wall.  And Magical folk wear muggle clothes, in different degrees of success to blend into the larger  muggle culture.  See for example, Harry, Hermione, and Ron in the last film, compared with Bob Ogden, the ministry official from the chapter House of Gaunt in the Half Blood Prince.

Whatever these various commingling are in the series, they stand as tools of translation between two different groups that respect divisions, even though individual members might prefer toleration.  What exactly is to be translated?  John Granger suggests that the magical world helps translate for the reader (ironically a muggle world) the basic and transcendent characteristics of love, mercy, forgiveness, fear, etc…).  JK Rowling made this point in an interview with the Atlanta Journal Constitution when she said “Witchcraft is just a metaphor for this other world of possibilities, beyond convention, that the mind can reach.“ As said by one Harry Potter Commentator,

This is a summary of a central premise in Granger’s work, that the “symbols, themes, and meaning touch the human heart with eternal verities and realities for which contact the human heart is designed and hungers” (234). I think you can understand the idea pretty easily. Harry Potter gets to some kind of Truth (Love, forgiveness, fear, etc) that we are all designed to long for.

Two worlds normally separated are joined by their ability to translate through the various interactions that do not necessarily involve their individual members.

So what can we learn from this lesson of metaphor translation in the law school curriculum. Those of us in the law and literature movement have long thought about the process of learning law as a process of translation.  There is, though, a tendency to treat the leaning of legal skills as distinctive from the learning of perspective skills.  Most agree both are important — but not important enough to merge together.

One of the prevailing themes underlying law students’ entry to law school today is the unpreparedness to understand the art of translation.  The ability to identify metaphors in a text, understand their relevance to context and meaning, and then cull out the underlying authorial meaning is directly relevant to what we ask students to learn how to do beginning in their first substantive courses.  One way of helping students understand that the process is one that relates to their prior work is to include works of fiction in the substantive courses as a means of bridging their legal education with their undergraduate training. Thus, the process of working through a legal text draws upon familiar modes of interpretation that students have been exposed to prior to entering law school.

Likewise, many works draw implicitly on legal themes as underlying conflict in their stories.  Courses like Property draw on theories of possession and entitlement that did not first originate in law, but in philosophical texts — texts which were as influential in literature as they were in law.  History and context afford background materials for texts like William Gaddis’ A Frolic of his Own, which implicitly raise critiques of the torts system.  As Warren has written in the past, Roger Malvin’s Burial forces students to confront norms in a context outside of law — norms of fairness, just deserts, and equality.   In other words, fiction translates the law not only through process but through substance as well.

These materials may serve as means of translating dense subjects to students who are not yet prepared to translate law accurately.  Perhaps, muggle radios sending messages of magical occurrences could be just as helpful to transmit messages of legal translation.

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

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

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

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

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

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

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

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

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

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

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

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

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

“This very night.”

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

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

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

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


Some Questions for Students Following Tom Walker:

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

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

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

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

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

The Devil and Tom Walker — A Property Tale 4

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I want to thank Warren, Patrick, Allen and Mai-Linh  for having me here at the Table.

Washington Irving’s The Devil and Tom Walker has been exemplified as a an example of Irving’s use of folklore in constructing narratives of context.  Most writers and commentators focus on the karma-istic nature of the story, the faustian detail (devil story), or the role of greed.   But the Devil and Tom Walker is a property story.  Yes — its about, at its core, the capacity of property to shape relationships amongst people.  A few areas of intersection emerge in a property world.    We see the conflict between entitlements that are respected and those that are not. In fact, as the last assignment for the semester, I am having my students read the Devil and Tom Walker.  These are some of the things I want them to see.  Today I want to point out how landscapes and their surroundings in The Devil and Tom Walker are intertwined in the property world.

The beginning of the story tells us that there are two property conflicts that will shape the story.  We learn that the Pirate Kidd has stashed gold in the hills amongst the trees in an inland swampy area under the watchful “guardianship” of the devil, “as [the devil] always does with buried treasure, particularly when it has been ill-gotten.”  We also learn that Tom Walker and his wife lived in a state of conflict over the things that might be termed their “earthly treasures.”  The wife hid things as they were acquired (like the eggs laid by the hen) and Tom pried about to discover her secret hoards, causing fierce conflicts over what Irving tells us should have been “common property.”  These conflicts left their marks on Tom’s face from time to time, though no one ventured to interfere with their business.

We also get an early glimpse of the poverty in which they lived — poverty which was common amongst their peers.

They lived in a forlorn looking house, that stood alone and had an air of starvation. A few straggling savin trees, emblems of sterility, grew near it; no smoke ever curled from its chimney; no traveller stopped at its door. A miserable horse, whose ribs were as articulate as the bars of a gridiron, stalked about a field where a thin carpet of moss, scarcely covering the ragged beds of pudding stone, tantalized and balked his hunger; and sometimes he would lean his head over the fence, look piteously at the passer by, and seem to petition deliverance from this land of famine. The house and its inmates had altogether a bad name.

Their Property, it seems, began to mimic the desolate nature of their souls.  Their home, like them, was forelorn.  The story does not tell us that Tom or his wife had children, but their property reflecting their nature suggests they were sterile, producing no fruit.  Moreover, the house was unwelcoming — there was no warmth either by fire or welcoming nature and no “traveller stopped at its door.”  The house became anthropomorphasized, at least as it reflected its two inhabitants, similar to the House of Usher in Poe’s tales, or the House of the Seven Gables from Hawthorne.

As Tom went walking one day, through the land, he came upon an area known amongst the common people as a dim place. Tom stops for a rest amongst a great tree and uncovers an indian skull with an ax embedded within it.  The place was known to be one where Indians performed incantations and made sacrifices.  It was a place where the sacred and the profane met.  But Tom was not one to be trifled with such stories.   Here, the story tells us a couple of things.  First, Tom perceives himself differently from the common people.  Common people believe in the mystical nature of the place which shapes the entitlements of people to enter; but not Tom.  Tom’s view of property then is shaped by what we would term entitlements, rather than propriety.  This is exemplified when Tom encounters the devil after kicking away the skull he has unearthed.

“Let that skull alone!” said a gruff voice….

He scowled for a moment at Tom with a pair of great red eyes.

“What are you doing in my grounds?” said the black man, with a hoarse growling voice.

“Your grounds?” said Tom, with a sneer; “no more your grounds than mine: they belong to Deacon Peabody.”

In Tom’s view, the Devil has no right to exclude Tom from the property.  Its only Deacon Peabody, whose entitlement is legally proper — that is respected by the white community.  In this end, it does not matter that Tom does not have an entitlement to the property.  All that matters is that neither does the devil, and from where Tom sees the world, his entitlement is probably better anyway.  Similarly, when Tom learns that the Devil is hewing trees (which represent the souls of the great men of the town), Tom asks what right did the devil have to tear down the trees.  And the Devil responds: “”The right of prior claim,” said the other. “This woodland belonged to me long before one of your white faced race put foot upon the soil.”

There is an irony in the claim of first title that emerges in the discussion between Tom and the Devil.   Tom does not respect the right of the native American’s to occupy the land.   He believes the entitlement is only proper with Deacon Peabody — an opinion which was consistent with the prevailing worldview as title goes.  See Johnson v. M’cintosh for example.  Ironically, Tom seems to accept the Devil’s account when he learns that the devil is not merely native american, but rather absorbs the dark matters across all cultures.   At this, the Devil has trumped Tom’s view of entitlement drawing on a greater source of right, than that which Deacon Peabody claimed his right — the actual right of first occupancy.

Similarly, the question of who has the rights to the chattels on the property are shaped by how Tom and the Devil perceive the entitlement to the wooded area. The Devil tells Tom of the treasure that falls under his protection.   At first, Tom is skeptical of the Devil.  In fact the story tells us that Tom was a “hard-minded fellow” and did not at all fear the devil and asked for proof that what the devil said was true.”  As the story proceeds, we see Tom does ultimately deal with the devil (I am going to cover Tom’s and his wife’s encounters with the devil in part II) and takes possession of the gold.  But what is important is how Tom perceives the Devil’s entitlement to the gold.  The Devil tells Tom that the only way to find the gold is through the Devil, who has hidden it so that none may find it.  As Tom prospers with the Devil’s gold, he begins to think about how he can cheat the devil out of his gold.

Once again, Tom defers to entitlements. His solution is to appeal to the what he believes can conquer the devil — zeal and devoutness.   Once again, relating the property course to this work, we see the American perspective shaped by how entitlements are created.

Some Questions for Students from the Devil and Tom Walker

1. How does Tom’s perception of the entitlements to the forest land shape his interactions with “Old Scratch?”

2. Does Tom’s lack of respect for the entitlements shape the way he respects the things found on the land? Compare the Skull with the Trees, with the Treasure.

3. Considering the reasoning of Justice Marshall in Johnson v. M’Insosh, how should we understand entitlements to the property in the forest.  Could Johnson v. M’Intosh be consistent with Devil’s entitlement to the forest land?

4. How should disputes relating to various chattels be resolved in relation to the Skull, the Trees, the Treasure?  Consider Pierson v. Post, Ghen v. Rich, Popov v. Hayashi, Keeble v. Hickeringill, and NAGPRA.   Does it matter if the Devil’s entitlement isn’t legitimate?

5. How does Property shape the various relationships in the story?   Tom and the Devil; Tom and his wife; Tom and Deacon Peabody; the Devil and Mr. Peabody?

6. Are there entitlements we should respect, regardless of their legal enforceability?

Are there other things that you would ask?  Please post comments below.

Forthcoming — The Devil and Tom Walker: A Property Tale — The Relationships of People to Property.  

Questioning the use of the Socratic method in law school Reply

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Though I don’t teach in a law school (nor have I attended one), I read with great interest the recent Room for Debate feature in The New York Times on the Socratic  method as used in law schools. None of the participants–Guy Uriel Charles, Robin West, Robert Dinerstein, David Wilkins, and Amanda Pustilnik–favors abandoning the method entirely, but rather questions the excessive exclusive reliance on it and the narrow wrange of topics to which it is applied.

Pustilnik’s contribution was my favorite, focusing on the core idea of deep questioning at the heart of the Socratic method, which is also relevant to Charles’ point about the various uses of the term itself. Pustilnik’s point can also address West’s concerns about the Socratic method leading law students to investigate the internal logic of the law without engaging in external critique; used right, it can certainly do both.

This also brings us to Dinerstein’s and Wilkins’ points, that it is not the method itself, but how law professors use it, that determine its value. If it is augmented with other methods and brought to bear on all aspects of legal education–or, I would argue, education in general–the Socratic method (in its most basic and ideal form) is timeless, not only leading students to an answer, but also highlighting how to find it.

Law Professors and Laws of Slavery 10

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I would, first of all, like to applaud all the contributors for the renewed activity on this fine blog, and second of all to extend my welcome to Mark D. White.  Welcome, Mark!  Glad to have you at the table.  I missed you at the Association for the Study of Law, Culture & Humanities conference, but I hear that you did a great job. 

My post today is something of a brief historiographical essay that ends by posing some critical questions for legal academics.

Kenneth Stamp published his landmark study The Peculiar Institution (New York: Alfred A. Knopf) in 1956, thus inaugurating the institutionalized and concerted efforts of scholars to examine the history of slavery in America with greater detail.  Research and study of the history of slavery then gained momentum in the 1960s.  One of the seminal texts from this period was David Brion Davis’s The Problem of Slavery in Western Culture (Cornell University Press, 1966), winner of the 1967 Pulitzer Prize for General Non-Fiction.  An ambitious undertaking, this book seeks to demonstrate the continuity of slavery through various times and places in Western Civilization.  A legitimizing narrative or logic always accompanies the institution of slavery, Davis suggests, but such narrative or logic—or narrative logic—is fraught with paradoxes threatening to undermine the institution altogether.  How, for instance, does one reconcile the ideals of freedom and equality, so celebrated by American Revolutionaries, with the pervasive reality of human bondage?  How does one make sense of a Christianity that both condemns and justifies slavery?  How can slaves be humans—rational agents with free will—and chattel property at once?  How does ending the slave trade worsen conditions for the enslaved?  If enslaving infidels, and only infidels, is valid by law and church teaching, then how do European colonists validate the enslavement of converted Africans?  How can colonists rely heavily upon an institution that they fear?  How can one of the earliest American colonies to oppose slavery (Georgia) become a hotbed for slavery?  If, according to law and church teaching, only pagans can be enslaved, why are not Natives enslaved as frequently or as much as Africans?  For that matter, why do early objections to slavery focus on Natives, who are less likely to become slaves than blacks?  Why do colonists insist on Christianizing slaves yet fear converted slaves?  How does the antislavery movement develop out of the very ideology sustaining slavery?  How do notions of sin both justify and subvert the institution of slavery?  Why does the Age of Enlightenment, with its celebration of reason, humanism, and liberation, intensify rather than disparage slavery?  And how can the New World, a putatively progressive landscape, rely on and perpetuate an ancient institution?  These and other questions permeate Davis’s provocative text.  Davis does not try to resolve these apparent contradictions so much as he explores them through various persons, places, and patterns; in so doing, he describes how human bondage gets revised and extended from one age to the next, and how justifications for slavery in one era inaugurate justifications for slavery in later eras. 

Davis’s book departs from trends set by historians such as Stanley Elkins.  A paradigm shift away from the “Phillips School” of historiography—which looked sympathetically upon plantation life in the Old South—Elkins’s Slavery: A Problem in American Institutional and Intellectual Life (University of Chicago Press, 1959) charts the rise of slavery in early America and argues, controversially, that the infantilization of American slaves by slave owners and overseers was akin to the psychological tactics that Nazis deployed in concentration camps.  Any comparisons with Nazi Germany are suspect and tend to raise more questions than they resolve.  How, for instance, do property and property law in American slavery relate to the Nazi investment in bodily economy?  How did the ideology of Southern slaveholders vis-à-vis the ideology of Europeans in other countries during the late eighteenth and early nineteenth centuries contrast with the ideology of Nazis vis-à-vis the ideologies of other European countries during the Nazi era?   Elkins runs up against this problem by overstating, in part III in particular, the ideological similarities between American slave-owners and Nazi leaders.  In terms of time and geography, this comparison does not stand up to scrutiny.  At any rate, unlike Elkins, Davis contextualizes slavery by the historical events leading to and immediately following slavery in America, the West Indies, and Brazil, drawing from sources directly linked to these slave systems rather than generalizing about recent events only tangentially or conceptually related to American slavery, an institution balancing on a different ideological fulcrum than did Nazism.          

Davis argues that the basic characteristics and structures of slavery remain unchanged throughout Western history, even if the particulars of slavery—say, slave laws or notions of racial superiority—take on new forms in new sociopolitical environments.  Davis’s text appears in the wake of scholarship “less content with theories of progressive currents washing away the dregs of an evil past” and more interested in “the relations between ideology and social structure” (28).  Although Davis applauds then-recent scholarship for bringing “rewarding insights,” he cautions that it tends “to divert attention from the fact that Negro slavery in the eighteenth and nineteenth centuries posed a genuine moral problem that reflected deep tensions in Western culture and involved the very meaning of America” (28).  Davis’s text, then, stands in contradistinction to Elkins’s because Davis embraces an ethical approach—or at least entertains moral questions—while Elkins generally eschews approaches treating slavery as a system of competing moralities (Elkins 28).  Davis appears to position his text as a corrective to, rather than an extension of, scholarship on American slavery, although he, like Elkins, refuses to view history as necessarily linear or progressive, and although he uses America—that is to say, the colonies that would make up the United States—as a starting point for investigating other European slave societies both earlier (ancient, medieval, and Renaissance) and later (the eighteenth and nineteenth centuries in the West Indies and Brazil).  Davis’s accounts are not and cannot be exhaustive, but they are critically detailed and theoretically sound, tracing lines of thought about slavery across a vast time and space.  Davis takes pains, in chapters eight and nine especially, to debunk the notion that slavery in Brazil and Latin America was less harsh than slavery in North America.  Here he falls, like Elkins, into the trap of comparing a severe phenomenon from one time and place with the severe phenomenon of another time and place in a way that distracts from the brutality and grotesqueness of both phenomena.             

Winthrop Jordan’s White over Black (University of North Carolina Press, 1968), winner of the National Book Award and the Bancroft Prize, followed shortly after Davis’s publication and explores race-based theories underpinning the international slave trade.  The fundamental question upon which this book rests is whether racism precedes slavery or slavery precedes racism.  Contra Davis (see Davis, chapter 9), Jordan submits that slavery precedes racism, particularly in the American context.  His thesis is that although historians treat slavery and racism as one-in-the-same, the beginning of slavery does not correspond with the beginning of racism, which is a later phenomenon.  The colonists and mercantilists who transported slaves from Africa to the Americas were less motivated by racial prejudice than by difference itself.  Insofar as difference is bound up with race, the distinction is a fine one.  Nevertheless, “racism” entails science and implicates discourses of biological superiority and inferiority, whereas “difference,” as it were, entails dissimilarities that are, among other things, aesthetic, religious, cultural, sexual, and social.  Jordan’s focus is on Anglo-America.  He does not investigate slave life in Brazil or in the West Indies as does Davis.  His analysis is mostly rooted in the eighteenth-century, roughly the same period that Davis uses to foreground his discussion of earlier forms of slavery.  Both Davis and Jordan privilege a white, European reading of history, at least inasmuch as they ignore the perspectives and quotidian realities of black slaves.  Jordan in particular is criticized—and rightly so—for his apparent attempts to understand the psychology of European colonials.  Although he, like everyone, has no access to the inner thoughts of colonials—or to the inner thoughts of anyone not himself—he does piece together stark insights from the outward manifestations of personal attitudes that, in the aggregate, combine to create a telling portrait of the colonial ethos and milieu.  Davis’s work anticipates the work of later scholars such as Orlando Patterson, who, in Slavery and Social Death (Harvard University Press, 1982), analyzes slavery as a widespread practice throughout different periods and places. 

Despite their shared attention to breadth and continuity, Davis’s and Elkins’s books differ in several important ways, but most notably in Davis’s avoidance of totalizing definitions for slavery.  Patterson defines slavery as “the permanent, violent domination of natally alienated and generally dishonored persons” (13).  This definition is problematic for a number of reasons, not least of which is its reliance upon slippery signifiers: “permanent,” “domination,” “natally alienated,” and “generally dishonored.”  (Was American slavery “permanent” if it no longer exists?  Put another way, did American slavery constitute slavery if it came to an end?  And did slave status always necessarily entail the natal?)  Patterson’s definition is too broad or too narrow, depending on who is interpreting it and in what context.  That there might be a universal definition for slavery, however, is an interesting—albeit daring—proposition.  It lends critical substance to Davis’s thesis that the dynamics of slavery remained relatively fixed over time, despite diverse technological, economic, and ideological currents shaping slavery in different eras.      

Slavery received an enormous amount of attention among historians working during the late twentieth century, and every year historians continue to uncover more information about slavery.  But the law professoriate has yet to examine the laws of slavery with adequate detail.  With a few notable exceptions—I’m thinking in particular of Paul Finkelman and Ariela Gross—law professors have yet to properly examine slavery and all of its ramifications for the law.  In light of Eugene Genovese’s magnificent Roll, Jordan, Roll (New York: Pantheon Books, 1974), which is now quite old but which remains relevant and important to any understanding of slave laws in America, the lack of attention to slave law among legal academics is striking and even worrisome.  Why have legal academics fallen behind in this critical area, and what are they doing to make up for this lacuna in legal scholarship?

Allen Porter Mendenhall