Category: Law and Humanities

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The Poetry of the Law

At Law Day dinners and law school commencements, judges and lawyers like to wax eloquent about the “poetry of the law.” I wonder, however, how many poems there are about specific legal rules. They do exist. As proof, I offer the following verse, which I discovered this morning, on the fellow servant rule:

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Law Talk: Oman on Civil Cases in Church Courts

Last week I attended the annual meetings of the American Society for Legal History in Tempe, Arizona. It was a great conference and compared, say, to the AALS meetings all of the presenters had clearly actually written and thought out their presentations before hopping on the plane. In this week’s episode I am broadcasting my own presentation at the conference. In early America many religious denominations tried to move civil disputes between church members into church courts, and lately I have been going through the records of Mormon church courts to see how the dealt with contract cases. As part of that research, I’ve written a paper that looks at the development of the Mormon judiciary, why Mormons sought to bring civil litigation within the church, and why they abandoned the effort around 1900. (I put up a short, preliminary version of my paper on SSRN.) My ASLH presentation shares some of my conclusions from that paper, which will be sent off to the law reviews this spring.

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

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Law Talk: Markovits on Contracts of Adhesion

In this week’s episode I speak with Professor Daniel Markovits of the Yale Law School. Daniel writes in a variety of areas including the philosophy of law, the theory of toleration, and — most importantly — the theory of contract law. In 2004, Daniel published an ambitious article in the Yale Law Journal“Contract and Collaboration” — in which he sought to offer a new theory of contractual liability based on the integrative and pro-social effects of contracts. He is now at work on a project that applies his collaborative theory of contract to the perennial problem of contracts of adhesion. The result, as you can hear in this episode, is a critique of contracts of adhesion that is unrelated to the traditional complaints of unequal bargaining power and substantive unfairness.

You can subscribe to “Law Talk” using iTunes or Feedburner. You can also visit the “Law Talk” page at the iTunes store. For previous episodes of Law Talk at Co-Op click here.

Authenticity Arms Race

I’ve been concerned about America’s burgeoning culture of cosmetic surgery, and bloggers across the ideological spectrum have commented on the issue (see, e.g., here and here). Meanwhile, the great American forces of libertarianism and self-assertion are steamrollering ahead:

Not only have cosmetic procedures become more acceptable, but they’re being promoted in less sensationalized ways to whole new markets. Increasingly, reality TV’s Cinderella tale of surgical transformation is being replaced with a smart woman’s narrative of enlightened self-maintenance. . . . [M]edia sources now compliment potential customers as mature women who are “smart,” “talented” and “wise.” Such women are supposedly savvy enough to appreciate their own wisdom — but, then again, they should want to soften the telltale marks of how many years it took them to acquire it. “I am not using these injectables to look 25,” Madsen insists. “I don’t want to be 25. I just want to look like me.”

Carl Elliott’s book Better than Well documents a range of people who believe that their “true selves” are most truly expressed in some change of appearance–usually for the younger, slimmer, and stronger (which may be why almost everyone’s avatar on Second Life is so . . . robust).

The aspirations of the people Elliott writes about end up sounding like second-hand dreams (for a mass-produced individuality). Thomas Frank’s Commodify Your Dissent captured the worry well a decade ago:

Consumerism is no longer about “conformity” but about “difference.” Advertising teaches us not in the ways of puritanical self-denial (a bizarre notion on the face of it), but in orgiastic, never-ending self-fulfillment. It counsels not rigid adherence to the tastes of the herd but vigilant and constantly updated individualism.

Thus the latest co-optation of “left” culture by the beauty industry: its “repackaging and reselling the feminist call to empower women into what may be dubbed ‘consumer feminism.'”

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Being Rejected Is Being in Good Company

rejected.jpgThis article from the New York Times takes a little bit of the sting out of being rejected. It is about publisher Alfred A. Knopf’s rejections of book manuscripts. From the article:

In the summer of 1950, Alfred A. Knopf Inc. turned down the English-language rights to a Dutch manuscript after receiving a particularly harsh reader’s report. The work was “very dull,” the reader insisted, “a dreary record of typical family bickering, petty annoyances and adolescent emotions.” Sales would be small because the main characters were neither familiar to Americans nor especially appealing. “Even if the work had come to light five years ago, when the subject was timely,” the reader wrote, “I don’t see that there would have been a chance for it.”

Knopf wasn’t alone. “The Diary of a Young Girl,” by Anne Frank, would be rejected by 15 others before Doubleday published it in 1952. More than 30 million copies are currently in print, making it one of the best-selling books in history.

The Anne Frank reader’s report is part of the massive Knopf archive housed in the Harry Ransom Humanities Research Center at the University of Texas. The document is one of thousands tucked away in the publisher’s rejection files, a place where whopping editorial blunders are mercifully entombed. Nothing embarrasses a publisher more than the public knowledge that a literary classic or a mega best seller has somehow slipped away. One of them turned down Pearl Buck’s novel “The Good Earth” on the grounds that Americans were “not interested in anything on China.” Another passed on George Orwell’s “Animal Farm,” explaining it was “impossible to sell animal stories in the U.S.A.” (It’s not only publishers: Tony Hillerman was dumped by an agent who urged him to “get rid of all that Indian stuff.”)

For almost a century, Knopf has been the gold standard in the book trade, publishing the works of 17 Nobel Prize-winning authors as well as 47 Pulitzer Prize-winning volumes of fiction, nonfiction, biography and history. Recently, however, scholars trolling through the Knopf archive have been struck by the number of reader’s reports that badly missed the mark, especially where new talent was concerned. The rejection files, which run from the 1940s through the 1970s, include dismissive verdicts on the likes of Jorge Luis Borges (“utterly untranslatable”), Isaac Bashevis Singer (“It’s Poland and the rich Jews again”), Anaïs Nin (“There is no commercial advantage in acquiring her, and, in my opinion, no artistic”), Sylvia Plath (“There certainly isn’t enough genuine talent for us to take notice”) and Jack Kerouac (“His frenetic and scrambling prose perfectly express the feverish travels of the Beat Generation. But is that enough? I don’t think so”). In a two-year stretch beginning in 1955, Knopf turned down manuscripts by Jean-Paul Sartre, Mordecai Richler, and the historians A. J. P. Taylor and Barbara Tuchman, not to mention Vladimir Nabokov’s “Lolita” (too racy) and James Baldwin’s “Giovanni’s Room” (“hopelessly bad”).

Photo Credit: Ali Farid

Nicholas Mosley: Style and Substance

effortsattruth.jpgI was happy to see the British magazine Prospect carry an interview/review of the work of the fascinating novelist Nicholas Mosley. Mosley’s Hopeful Monsters is an extraordinary novel of ideas. It’s easy to make a hash of that genre, but Mosley’s protagonists are so viscerally committed to their fields of study (one’s a physicist, the other an anthropologist) that it’s easy to see why they care about the interplay of philosophy and science in the mid-twentieth century. The book can even be taken as an extended meditation on the degree to which the model of natural sciences can be extended to social science.

(That theme is more explicitly treated in his autobiography, Efforts at Truth. This memoir also contains one of the most bizarre accounts of an alleged “defamation by fiction” I’ve ever seen.)

A few more thoughts after the break. . .

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The World as the Text of the Thoughts of a Programmer

robot4.jpgAdam Kolber has posted on a New York Times article by John Tierney that “discusses the possibility that our world was created as a hobby or as an experiment by members of some more technologically advanced civilization.” The piece is based on “a discussion with the-always-insightful Nick Bostrom, Director of the Future of Humanity Institute at Oxford University:”

Dr. Bostrom assumes that technological advances could produce a computer with more processing power than all the brains in the world, and that advanced humans, or “posthumans,” could run “ancestor simulations” of their evolutionary history by creating virtual worlds inhabited by virtual people with fully developed virtual nervous systems.

Tierney estimates “that the odds are better than 20 percent, maybe better than even” that we are living in a simulation, but consoles us that “just because your neural circuits are made of silicon (or whatever posthumans would use in their computers) instead of carbon doesn’t mean your feelings are any less real.”

Query: What exact meaning of “real” is being invoked here–authentic? genuine? important? I think the “real” agenda of people like Bostrom is to get us to understand ourselves as a pattern of thoughts and reactions to the world–a kind of behaviorism that I critique in this post.

The speculation about a “prime designer” reminds me of the intelligent design movement’s effort to fuse science and religion. Tierney’s piece reveals to me a lot more about the human need for the sacred than it gives me a sense of whether we’re all just butterflies dreaming that we’re persons. (The estimated 20% chance is a nice example of quantificationism–wouldn’t our estimate of the chance of being a simulation itself be a a part of the simulation, and thus impossible to verify?).

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Beware! There Be Pirates Ahead!

jolly roger2.JPGThere were many good panels at LSA 2007 in Berlin. One presentation by Salvatore Poier of the University of Milan focused on the nature of the term piracy. The project examines the term as it was used in what the author calls the Golden Age of Piracy. Part of the claim is that the term shifts over time sometimes applying to a practice where those with few options created societies with relatively flat structures and had a certain respect to periods where the term has less favorable views. The word’s etymological roots are in Greek and the term stems from the word for to try or essay. In addition, I happen to be reading Paul Woodruff’s On Justice, Power, and Human Nature, a translation of Selections from Thucydides’ History of the Peloponnesian War, and recall that Thucydides presents a view of pirates that may be of interest. Assuming Woodruff’ translation is correct, it presents an interesting perspective for the term. It was not insulting and had some respect but became a practice to be eliminated as society changed. Here’s a quote:

In ancient times, you see, the Greeks had turned to piracy as soon as they began to travel more in ships from one place to another, and so had the foreigners who lived on the mainland shore or on the islands. Their most powerful leaders aimed at their own profit, but also hoped to support the weak; and so they fell upon cities that had no walls or were made up of settlements. They raided these places and made most of their living from that. Such actions were nothing to be ashamed of then, but carried with them a certain glory, as we may learn from some of the mainlanders for whom this is still an honor, even today, if done nobly. The same point is proved by the ancient poets, who show that anyone who sails by, anywhere, is asked the same question–“are you a pirate?”–and that those who are asked are not insulted, while those who want to know or not reproachful.

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Tribal Scholarship

I have put up a couple of posts here on my on-going research on the resolution of civil disputes in ecclesiastical courts and Mormon legal history. Earlier this week, I presented my research to a faculty workshop at William & Mary. (I’ve also put up a copy of my preliminary research on SSRN.) In addition to ordinary trepidation of the untenured presenting research before the future members of the tenure committee, I had an extra level of anxiety as I presented my paper.

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Redistribution as/and Recognition

WaterBurning.jpgIn a methodologically interesting essay, Harvey Mansfield makes a silly substantive argument:

You can tell who is in charge of a society by noticing who is allowed to get angry and for what cause, rather than by trying to gauge how much each group gets. Blacks and women wanted benefits only as a sign of equality, not to give themselves greater purchasing power.

I’m much more partial to my colleague Shavar Jeffries’ point that “black people need radical substantive change in their quality of life;” symbolic politics means little in the face of inequalities that greatly reduce individuals’ chances at health care, education, and safe and affordable housing.

This is perhaps why Nancy Fraser worries that “insofar as the politics of recognition displaces the politics of redistribution, it may actually promote economic inequality; insofar as it reifies group identities, it risks sanctioning violations of human rights and freezing the very antagonisms it purports to mediate.” But unlike Walter Benn Michaels and Mansfield, Fraser believes “struggles for recognition can [legitimately] aid the redistribution of power and wealth.” Her books, including Unruly Practices, give some fascinating examples of how that can happen. If you’re tired of reading, check out Deepa Mehta’s film Water.

So why did I think the Mansfield essay methodologically interesting?

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