Category: Law and Humanities

The Place of the Humanities in Politics and Law

I just wanted to highlight two very insightful articles on the humanities I should have read earlier. First, here’s part of the abstract of Balkin & Levinson’s Law and the Humanities: An Uneasy Relationship:

Law’s professional orientation pushes legal scholars toward prescriptivism – the demand that scholars cash out their arguments in terms of specific legal interpretations and policy proposals. These tasks push legal scholars toward technocratic forms of discourse that use the social and natural sciences more than the humanities. Whether justly or unjustly, the humanities tend to rise or fall in comparison to other disciplines to the extent that the humanities are able to help lawyers and legal scholars perform these familiar rhetorical tasks of legitimation and prescription.

Laura Kalman has observed a similar tension between advocacy and academic research in the legal academy, and I’m happy to see B&L moving the conversation forward.

Second, here is Harvey Mansfield writing in First Things on How to Understand Politics:

Politics is not an exchange between the bargaining positions of a buyer and a seller in which self-interest is clear and the result is either a sale or not, all without fuss. As it happens, self-interest does not explain even commercial transactions. That we get angry if we feel cheated, or that we succumb to the charm of salesmanship, shows that more than a small measure of ego enters into the behavior of those who pride themselves on calculation.

Self-interest, when paramount, cools you off and calms you down; thumos pumps you up and makes you hot. In politics there is bargaining, as in commerce, but with a much greater degree of self-importance. People go into politics to pick a fight, not to avoid one.

A provocative and passionate take on a subject that many have tried (and failed) to reduce to transactional logics.

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Law Talk: George R. R. Martin

gm-lochness-t.jpgIn today’s episode of Law Talk, we hear from George R. R. Martin, the prolific author of the “high fantasy” series The Song of Ice and Fire. George has also been a screenwriter and Hollywood producer, an editor, a chess tournament director, a union leader, and a volunteer media director for the Cook County Legal Assistance Foundation. As I’ve previously written, George is a leader in the movement to bring a degree of realism to fantasy, and he has been dubbed (by Time Magazine) “The American Tolkien.”

George and I talked for almost an hour, on topics ranging from the role of law in fantasy books (starting 3.5 minutes in); the limits of magic as a plot device (20 minutes in); law professor Robert Cover (22 minutes in, brought up by me, to my shame); why most fantasy novels seem to be set in merry olde england (28 minutes in); fan fiction and copyright infringement (31minutes in); how writing sci-fi is like selling music, and whether he likes Radiohead’s distribution model (35 minutes in); how to keep control over your work when it is transformed into another medium (39 minutes in); and inheritance law (toward the end).

George is a fantastically interesting, well-read, thoughtful guy, and I think you will enjoy this interview quite a bit. (If you aren’t a fan of the books, ignore my constant, irritating, references to characters you have never heard of.) Finally, if you want to learn more about George, visit his blog (which he says isn’t one) and join the hordes of folks waiting for the next installment of the series, A Dance With Dragons, to ship.

Missed the link? Here’s the interview again. Warning: it’s a big file!

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.

For other posts in the “Law and Hard Fantasy” Interview Series, see:


Introducing: The Law & “Hard Fantasy” Interview Series

Matteson-witch.jpgEarlier this summer, I wrote a post titled Fantasy’s Apocalyptic Turn, about the development of the “hard fantasy” movement in modern fiction. As I commented:

[I]t is worth briefly thinking about the relationship between epic fantasy and law. Although the legal aspects of fantasy role playing games are now well-marked out, there has been little work (outside of the Potterverse) on how fantasy authors imagine legal rules’ role in society. If epic fantasy is read largely by adolescent boys, this missing attention makes a great deal of sense. You don’t see law review articles about Maxim. But, if fantasy, or hard fantasy, has become a literature for the rest of the population, it is worth thinking about the complete and total absence of civil law in these books, and the light touch of criminal law more generally. Is it impossible to imagine lawsuits and magic coexisting in the same society?

This post got some folks blogging – in agreement and dissent.

I’m still interested in the relationship between epic fantastic fiction and law, and I realized that if I really wanted to know about how law makes it way (or doesn’t) into fantasy novels, I might as well ask some actual authors about it. So, I got in touch with a few writers who I consider to be among the best practitioners of “realistic” epic fantasy, and I’ve put questions to them. Now in doing so, I realize that I’m in danger of over-intellectualizing books that require a certain amount of suspended belief to be digested. Worse, really digging into these stories calls to mind E.B. White’s quote about frogs and humor. Indeed, as the picture to the right illustrates, law’s relationship to magic has the potential to be pretty gruesome.

But it’s worth a try. Over the next several months, I’ll be bringing you several author responses. Some terrific folks are already on board, including the reigning king of the movement, George R. R. Martin, and I’m hoping for more responses to trickle in. But our first guest is a newcomer to the genre, Pat Rothfuss, author of the new, acclaimed, novel The Name of the Wind. I’ll be posting my interview with Pat (hopefully) later on in the weekend.

(Image Source: Examination of a Witch, Thompkins H. Matteson, Wikicommons)

Larson on Legacy Preferences as Titles of Nobility

ballcrown320.jpgCarlton Larson’s article on the “Unconstitutionality of Legacy Preferences in Public School Admissions” is provocative, persuasive, and beautifully written. I read its seamless synthesis of legal history and constitutional advocacy at one sitting, and I think anyone interested in egalitarian thought would do well to consult it. As its precis states,

[The Article] sets forth a framework for building a modern jurisprudence under the Nobility Clauses and concludes that legacy preferences are blatantly inconsistent with the Constitution’s prohibition on hereditary privilege. Indeed, the closest analogues to such preferences in American law are the notorious “grandfather clauses” of the Jim Crow South, under which access to the ballot was predicated upon the status of one’s ancestors. The Article considers a variety of counterarguments supporting the practice of legacy preferences and concludes that none of them are sufficient to surmount the Nobility Clauses’ prohibition of hereditary privilege.

Larson’s piece is also impeccably timed, as controversy over admissions to elite universities heats up. Justice Talking featured a series of speakers on college admissions on last week’s podcast. As book after book reveals inequities in the system, apologists for privilege are mounting a counterattack. Larson’s article reminds us of what is at stake–no less than the egalitarian values at the core of the American Revolution’s rejection of British aristocracy.

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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.


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