The Faculty Lounge

Harper Lee

I was sorry to hear the news that Ms. Lee has passed away.  That set me thinking again about her work.  I'm glad that we had the chance to publish a blog symposium about Go Set a Watchman last summer.  (And I have some other thoughts about Go Set a Watchman -- and Ms. Lee's character's thoughts about constitutional law -- here.)

I look forward to more discussion in the coming days about her role in the Civil Rights Movement as our nation struggled to rise out of Jim Crow -- and about her role as a chronicler of the conflicts around the Movement in Alabama.   

Maybe this is the time I should mention that I taught a case in trusts and estates earlier this spring about a white man who left his property to an African American woman -- Dees v. Metts -- in which Amasa Coleman Lee figured prominently.  He had assisted the man in transferring property during life to the woman -- and later provided testimony that the man was competent when he made that conveyance.  Max Cassady, a Mobile lawyer, has a good article about the case here.

Update: I just remembered a vignette about Watchman that I've been meaning to share.  When I was home in Philadelphia over winter break I was in Kmart and I checked out their book section -- I'm always interested in what's offered for sale to "the masses."  I was so happy to see that Watchman was there along with the romance novels and self-help books.  Very exciting and testimony to how far Ms. Lee's influence stretches. 

Update 2:  Cumberland Law Review has a symposium on Harper Lee's Watchman.

Sally Greene: Atticus Uprising

My Chapel Hill friend Sally Greene, who's on the town council here, and holds both a J.D. and a Ph.D. in English, has sent along the following post (which originally appeared on her blog):

One of the most unforgettable moments of To Kill a Mockingbird comes at the end of the trial, after Atticus Finch has done his noble best to gain Tom Robinson’s acquittal. Calling her up from her seat in the “colored” balcony, Rev. Sykes admonishes, “Miss Jean Louise, stand up. Your father’s passing.” This moment of reverence, and fleeting racial solidarity, is chillingly echoed at the conclusion of Go Set a Watchman. After a dramatic confrontation with Atticus in which the adult Jean Louise discovers the bald racist assumptions behind his true beliefs, she returns to his office at the end of the day to drive him home. Heading for the car, “[s]he stepped aside to let him pass.”

Let me say first that the novel should not have been published. Despite the claims of Harper Lee’s blessing, anyone with a loved one as frail and failing as she apparently is must be suspicious.  If it had to be published, it should have been as a scholarly edition, thoughtfully annotated and contextualized.  That is, if there is enough textual evidence to put such a record together.  The most helpful analysis I’ve seen so far comes from a story in the New York Times focusing on Lee’s editor, Tay Hohoff, who died in 1974. Working closely with Lee over many revisions, Hohoff recalled that “sometimes she came around to my way of thinking, sometimes I to hers, sometimes the discussion would open up an entirely new line of country.” Hohoff’s Quaker roots, this story suggests, may have contributed to her steering Lee in a more progressive direction.

I can think of two reasons why an editor might have suggested transporting the setting back to the 1930s childhood of Jean Louise, and they’re related.  First, the clear, seemingly simple style of Lee’s prose easily lends itself to the perspective of a younger person (the tomboy “Scout,” recalled in flashbacks).  Second–perhaps intended, perhaps a lucky byproduct of the first decision–taking the story out of the immediacy of her 1950s context opens up a more imaginative space.

For certainly, Go Set a Watchman is flawed by the didacticism of a writer caught up in the politics of her day.  In the pitched moment of the post-Brown 1950s, the novel bares uncomfortable truths. Atticus has signed on with the local Citizens Council.  Justifying himself to his daughter, he turns it back to her: “Do you want Negroes by the carload in our schools and churches and theaters?  Do you want them in our world?” (Jean Louise, now living in New York, is more sympathetic to the Negroes but insists that the Supreme Court is running rough-shod over the Tenth Amendment.)

Hearing Atticus Finch’s unvarnished white supremacy in his own words is dispiriting enough, but watching the scales fall from Jean Louise’s eyes goes to the heart of what this text has to say to us today.

“Jean Louise, I’m only trying to tell you some plain truths. You must see things as they are, as well as they should be.”

“Then why didn’t you show me things as they are when I sat on your lap? Why didn’t you show me, why weren’t you careful when you read me history and the things that I thought meant something to you that there was a fence around everything marked ‘White Only’?”

Jean Louise’s disillusionment, which may reflect Harper Lee’s own, is not an uncommon story for southerners of a certain generation.  The writer Elizabeth Spencer recalls a similar experience on returning to Mississippi in 1955.  She came home from Italy, the manuscript of her own powerful civil rights novel in hand, only to find that Emmett Till had just been murdered in the next county over. She was distressed to see the response of her father (he “reacted to the crime the way a stone wall might if hit by a BB gun”), a man she had believed to be fair and “forward-looking” on race. She understood finally that his overarching interest was in maintaining order.

Ariela Gross: The Limits of White Liberalism

Our next contribution in the Watchman symposium is from Ariela Gross, who is the John B. and Alice R. Sharp Professor of Law and History at the University of Southern California.  Ariela's extensive scholarship includes What Blood Won’t Tell: A History of Race on Trial in America (Harvard 2008) and Double Character: Slavery and Mastery in the Antebellum Southern Courtroom (Princeton University Press, 2000), which I always assign to my legal history class.  Steve Lubet will wrap up the discussion in the next few days:

Like the previous bloggers in this wonderful symposium, I doubt that Harper Lee intended to publish Go Set A Watchman, and I agree with most of the public commentators that as a literary work, GSAW doesn’t rise to the level of To Kill A Mockingbird. The characters speechify and the plot never takes off. I also agree completely that it makes no sense to ask whether Atticus is a coherent character from TKAM to GSAW – the book is not a sequel, and Atticus is not a real person. Nevertheless, I do think GSAW has important political lessons for us, particularly at this moment. Whether or not GSAW is the book Harper Lee’s legacy as a great American writer demanded, it is the book white America needs at the moment, because it is a powerful corrective to the myth of the great white savior of black civil rights. From Amistad, Glory, and Lincoln to Mississippi Burning and the recent Broadway play, All The Way, the narrative of a great white leader setting free the slaves or ex-slaves is a stock trope in American drama, with Atticus Finch the leading exemplar of the upstanding white citizen taking a stand against racism. Yet, as Mary Ellen Maatman ably demonstrated, Southern lawyers as a group took their strong stand against Brown v. Board, and turned their efforts toward legal means to fight desegregation. The Southern law reviews in 1955 and 1956 were filled with articles about nullification – just as they would have been one hundred years earlier had there been law reviews at the time.

The greatest disconnect I noticed between the public commentary on GSAW, which has focused on Lee’s portrayal of Atticus as a racist Citizens’ Council member, is its glossing over of her portrayal of Jean Louise (Scout), which seems to be more nearly Lee’s own voice. To me, what really made the book such an interesting artifact of its time is the expression of the protagonist’s views. If Jean Louise is meant to represent the more enlightened voice of the liberal white Southern woman returning home from the North, able to critique the North and the South with her outsider perspective on both, she is hardly the “colorblind” liberal we imagined her to be. Indeed, although at several points the narrator declares Jean Louise to be “colorblind,” and Uncle Jack calls her “colorblind” as well, the book brilliantly (and unintentionally) demonstrates what a hollow conceit “colorblindness” is.

 There is no sense in which Jean Louise does not see race. She shares many of Atticus’s negative views of “Negroes” in her hometown. She and the narrator both comment disparagingly on the marital and sexual practices of Zeebo and his wife Helen. She agrees with him that Negroes are “backward.” And most of all, she acknowledges that she was “furious” at the Supreme Court for Brown v. Board because they had run roughshod over the Tenth Amendment. It is not even clear that she opposes nonviolent, legal efforts to turn back desegregation – what horrifies Jean Louise is the racist rhetoric of the speaker at the Citizens’ Council meeting she overhears, the “shouting nigger” into which she believes good Southerners like her father have fallen. Would Jean Louise – or Harper Lee – have disapproved of the “colorblind,” race-neutral means many “moderate” Southerners (and Northerners and Westerners) adopted to maintain segregation in schools and housing? GSAW suggests not.

Furthermore, GSAW does not invite the reader to disavow Atticus but to sympathize with him. By the end, Jean Louise comes to understand – thanks to the scolding of her Uncle Jack – that she has been as unyielding in her Yankee ways as the Citizens’ Council members are in theirs. She needs to understand that Atticus is flawed but still worthy of her admiration. He may be wrong, but he is only trying to hold on to the Southern way of life. Uncle Jack tells her that she has been a “bigot” just as Atticus is; prejudiced against white Southerners as he is against “Negroes.” (Only a “turnip-sized bigot,” but still.) This “fair and balanced” approach is the essence of colorblindness. And it is this blindness that ultimately limits the moral vision of GSAW. It’s a fascinating artifact of its time, a teaching tool, and an important –and very timely -- reminder of the limits of white liberalism in the pursuit of racial justice in U.S. history. 

    -- Ariela Gross

Maatman: The Historical Authenticity of Watchman

We're nearing the end of the Watchman symposium -- we may have another post or two by Monday and then Steve Lubet will conclude the symposium early next week.  This post is by Mary Ellen Maatman, who teaches Employment Discrimination Law, Torts, Legal Writing, and Law and Literature at Widener University’s Delaware Law School.  She has written about the work of segregationist lawyers, as well as the meaning of Harper Lee’s To Kill a Mockingbird.  She reflects here on the historical authenticity of Go Set a Watchman.

Like some of my fellow bloggers, I harbor doubts that Harper Lee ever meant to publish Go Set a Watchman. Yet, this book’s publication gives us a gift of remembrance that is especially useful at this time.

Elsewhere, I have suggested it is best to regard Watchman’s Atticus as a character whom Harper Lee mindfully chose to transform into Mockingbird’s beloved Atticus. That final Atticus represented what Lee ultimately wanted to say in the midst of the modern Civil Rights era.

Widespread love for this definitive Atticus set readers up for a shock upon encountering Watchman’s “first draft” Atticus. Consideration of history lessens the shock, and gives us a more thorough understanding of lawyers’ mixed roles in civil rights history. 

Watchman’s Atticus is utterly representative of the majority of the South’s lawyers when it was drafted. In fact, 1957 may have been the White Citizens’ Council’s peak year in Alabama.  Neil McMillen’s The Citizens’ Council documents the movement’s burst of growth in Alabama in 1956.  In the wake of Autherine Lucy’s attempt to enroll in the University of Alabama and the Montgomery Bus Boycott—both alluded to in Watchman—Alabama’s movement grew to some 40,000 people, and a vigorous membership drive consumed 1957.

John Bartlow Martin’s The Deep South Says Never documented the rise of the White Citizens’ Council movement in opposition to the Supreme Court’s decision in Brown v. Board of Education.  This movement attracted the South’s most respectable factions—its real-life Atticus Finches. Founding members of the first council chapter included “a planter, a farmer, a dentist, the mayor, a lawyer, a [cotton] ginner, [and] a druggist and hardware dealer.” Martin explained how the council movement attracted such respectable men:  it “eschewed secrecy . . . forswore violence, [and] proposed to prevent segregation by legal means.”  In fact, the organizers’ strategy was to spread the segregationist word through local service clubs.

Roark: What Robert Penn Warren Might Say about Go Set a Watchman

Marc Roark, who teaches property, secured transactions, and law and literature at Savannah Law School, asks what Robert Penn Warren might have thought about Go Set a Watchman:

I’ve always thought Harper Lee’s themes and styles in To Kill a Mockingbird closely resembled some of Robert Penn Warren’s themes relating to the South. Namely, as I have written in other places, in early to mid-20th century Southern Literature, black people are often passive persons where things happen to them (notably horribly bad things), and that the response to those things is what makes us believe the characters to be either progressive or non-progressive.   Likewise, in both Warren and Lee’s narratives, the place becomes a character itself.  Both the South and the specific places in the South are alive in both writers’ prose. 

That place-centric identity can be characterized as what I have called in other places a form of Southern Exceptionalism. If the American experience is explained by exceptional qualities, then the Southern Experience may be described by a different reference to the past: “defeat, humiliation, and impotence in the face of intractable social problems.”  The south eagerly adopted the idea of American exceptionalism for itself, believing the society to be set apart, unique, and validated by moral superiority.  But as eminent southern historian C. Vann  Woodward’s The Search for Southern Identity argues, time proved that the real southern experience was characterized by “grinding poverty, political impotency, military defeat, racial conflict, and social guilt.”  Sheldon Hackney has argued that Southerners have had to define themselves in opposition to a presumed American norm.  Similarly, Orville Burton contends that the Southerner remains an “other” or “stranger” in the American narrative. For our purposes, Robert Penn Warren embraced the idea that Southerners found themselves looking backward more than forward so to speak – consistently defining themselves, their environment, and their identity against the backdrop of how the exceptional failed in its promise, and the fact that the war was not won.  This is revealed in Warren’s life experience and works. We see similar themes in Lee’s Mockingbird and now Watchman. 

Cherry: A Conversation between Atticus Finch and his Libel Lawyer

Miriam Cherry, who teaches business associations and contracts at St. Louis University's Law School, has a very different contribution to the Go Set a Watchman symposium.  She's written a dialog between Atticus Finch and Clarence Darrow:

Atticus Finch:  As my mentor and dear friend, I beg you to take on my case.  I have been misunderstood and maligned.  Yes, I will say it, defamed!

Clarence Darrow:  Take a deep breath, Atticus. What are you talking about?  Are the ignorant trash in Maycomb giving you trouble again?  Just remember what I always say: I have suffered from being misunderstood, but I would have suffered a hell of a lot more if I had been understood.

Atticus Finch:  No, it’s not the racists in Maycomb.  Well, it is, I guess.  Apparently I’ve just been accused – in print – of being one of them.  A Miss Harper Lee degrades me.  Says here in print (throws down copy of Go Set A Watchman) I’m a member of a hate group.  Can you believe it?

 Clarence Darrow:  Incredible!  Atticus, are you sure she is talking about you?  I have known you a long time.  If you drank until you were drunk you wouldn’t be as hard as some men are at their best.  You’re a bang up father.  A prince among men.

Atticus Finch:  I may be a lot of things, but I’ll tell you this.  I’m not someone to go on night rides wearing bedsheets.  I’m a civil liberties attorney.  This is character assassination, pure and simple.    

Clarence Darrow:  We need to clear your name, Atticus.  Why don’t you go on record and tell me, courtesy of your earlier statements (throws down copy of To Kill a Mockingbird) exactly what your sentiments are.  Set the record straight for us, Atticus.

Atticus Finch:   You know that I’ve said that the one place where a man ought to get a square deal is in a courtroom.  Also, I think there's just one kind of folks. Folks.

Clarence Darrow:  Pray, continue.

Atticus Finch:  White men cheat black men every day.  … But let me tell you something and don't you forget it - whenever a white man does that to a black man, no matter who he is, how rich he is, or how fine a family he comes from, that white man is trash.

Clarence Darrow:  Well said my friend.

Atticus Finch:   What could be motivating this?  Whatever did I do to Miss Lee that she hates me so?

Clarence Darrow:   Let me tell you my thoughts.  Go Set a Watchman contains a long discussion of iconoclasm.  Destroying an image, an idea, a hero.  But just because Miss Lee created you, doesn’t mean that she gets to destroy you.  The ideals – the true courage that you stood for – the simple decency – it doesn’t end just because HarperCollins wanted to make a buck.  I will take your case. 

Atticus Finch:  Thank you, old friend.

Clarence Darrow:  Chase after the truth like all hell and you'll free yourself, even though you never touch its coat tails.  Let’s give ‘em hell, Atticus.

    -- Miriam Cherry

Crow on Go Set a Watchman -- A Wrinkle in Maycomb County

Our next contribution to the Go Set a Watchman blog symposium is by Matthew Crow, who is a history professor at Hobart and William Smith College, where he writes and teaches on the history of political thought:

"You balanced the equities, didn't you?  I remember the rape case you defended, but I missed the point.  You love justice, all right.  Abstract justice written down by item on a brief--nothing to do with that black boy, you just like a neat brief.  His cause interfered with your orderly mind, and you had to work order out of disorder...

 Why didn't you tell me the difference between justice and justice, and right and right?  Why didn't you?"  - Jean Louise Finch of Harper Lee's Go Set a Watchman

One of the things I appreciated the most about the first season of the TV show Wolf Hall was the portrayal of Thomas More.  For a lapsed Episcopalian who won the Thomas More award at his Catholic high school, a realistic picture of the powerful Chancellor was a necessary corrective to the sanctimonious A Man for All Seasons.  And yet, there More sits, telling Cromwell he could not surrender, to do so would be to give up the ground he stood on, and that ground itself was Thomas More, and if they wanted to get that they were going to have to take it.  Despite his elaborately casuistic moral reasoning with himself and Parliament, in the end the law and its nominal protections lie prostrate, and judgment would be based on and delivered onto nothing but the discretion of conscience. 

Harper Lee's two books dramatize something similar about the trouble legalism has with the inscrutability of motive, conscience, and judgment, and how the history of the law intersects, if it does, with what we might call the history of justice.  In this post, I want to explore these distinct dramatizations and suggest a reading of them that might be useful for thinking about law and literature and history in the present. 

I am in the process of imagining a future book project on the idea of equity in political thought, and it seems to be a scholarly consensus that the meaning of equity shifts fundamentally from a developed jurisprudence of private law to a constitutional principle, and does so as a result of the Civil Rights revolution.  Brown v. Board of Education made private law principles into public law, so the argument goes: many of the advocates and judges involved in the decision were confused about the distinction, and in turn so are we.  I am not sure this shift is as radical as it is taken to be; in high legal and political theory, at least, as the work of Ernest Weinrib demonstrates, the idea of corrective justice has always had profound implications for the legitimacy of law and the political order.  Aristotle understood this, and so did Thomas Hobbes, who is unique (I am confirmed in thinking after a wonderful conversation at the recent British Legal History Conference) in explicitly not observing a distinction between private and public law at all.  If sovereignty is really sovereignty, the power of judgment in one cannot be separated from the power of judgment in the other.  At a level we don't like to talk about at parties, Hobbes says, judicial power is executive power, or better yet, the core of what it means to be a sovereign is the exercise of legal judgment, or what gets configured in early modern equity as the conscience of the crown.  This is the power that More exercised, and in a sense it is the power that gets exercised on him. 

Fincham: Is Watchman Authentic?

Our next contribution in the Watchman symposium is from Derek Fincham, who is an associate professor at South Texas College of Law in Houston, where he teaches Legal Research and Writing and Art Law.  Derek has a Ph.D. in Cultural Heritage from the University of Aberdeen King’s College and went to law school at Wake Forest.  He writes about art and cultural property at www.illicitculturalproperty.com:

A lot of questions have been asked about the release of Go Set a Watchman in the wake of the book’s announcement late last year. How should the novel be considered? Did Harper Lee really intend to release this early work after steadfastly refusing for decades?

I wondered whether the book might be a forged work of literature. My summer writing project has looked at how the law applies to disputes over the authenticity of visual art. Owing to the substantial sums of money at stake when a new work by a well-known artist surfaces, litigation is common. As a result, many artist foundations have made the unfortunate decision to withdraw from offering authentication opinions. I’ve discovered that fake works of art are far more common than you might think, and no museum or auction house can claim to be immune.

One thing about forged works of art: they are often matched to their time. A skilled faker has the advantage of combining the stylistic elements of the earlier artist and can attach modern concerns and sensibilities to them. The art forger Hans van Meegeren faked works by Vermeer, and was the subject of a notorious trial in 1947 in which he demonstrated to a Dutch court that he had not sold a genuine Vermeer to Hermann Göring, but in fact had forged the work. And to demonstrate his forgery skills, van Meegeren painted a version of Jesus among the Doctors before the Dutch court. He faked works by Vermeer because they are exceedingly rare, and valuable. His most successful fake, Supper at Emmaus was praised as a change of style for Vermeer, depicting more emotion and different subject matter than the artist had used before. With the benefit of hindsight we can see the work as an obvious fake, one that has much clumsier line and color than any other Vermeer. Literature is a bit different of course. Writers don’t write for lone patrons generally, who keep a work for their own use. An author writes for a bigger audience.

So we should be cautious when a new undiscovered or hidden work of art is out of character or reveals something very contemporary about an older artist. Depicting Atticus Finch as a complicated man who feared the civil rights movement and advocated segregation dramatically changes how we think about the character. That change seems awfully contemporary. Almost too prescient given this nation’s continuing struggle with social justice and racial equality. Yet nearly everyone seems to agree that Watchman was authored by Harper Lee. The publisher and those releasing the work have consistently held Watchman out as an early draft of what came to be To Kill a Mockingbird. Some literature professors in Poland have even data mined the text, and analyzing the use of common words, found that Watchman is the work of Lee.

But even if this isn’t a forged work of literature, is it authentic? Is this a text Ms. Lee wanted included in her body of writings. That is a much more difficult question. Turning back to art history again, when the artist known as El Greco died, his workshop contained four or five copies of nearly every major work the artist had created. Some by his hand, some made with the assistance of his apprentices. Not all of those works should be considered works by El Greco. And even if a work has been created by an artist, they often shift styles so dramatically that they no longer want to acknowledge earlier works. Take the contemporary artist Gerhard Richter, who gave the art market a shudder after announcing he no longer claimed works of art from his early period. A period which differed substantially the style he has developed.

William Giraldi, writing in the New Republic, expressed skepticism surrounding the story of the publication of Watchman. He wondered whether the lawyer, caretaker, and publisher working on behalf of Ms. Lee have done something the author likely never would have. Lee is 89 years-old, suffered a stroke in 2007, lives in an assisted care facility, can see or hear very little, and may not have the mental capacity to consent to the publication of her long-shelved work. Giraldi pointed out that Lee’s sister, Alice Lee, would likely never have allowed the publication of Watchman. The Atlantic in March discussing the capacity of her sister: “She doesn’t know from one minute to the other what she’s told anybody”. The announcement that Watchman would be published came only three months after Alice Lee passed away at 103.

Perhaps the manuscript should have been left to future academics to study, and does not deserve all this fanfare. One of the core moral rights of an artist as its conceived in Europe is the ability to withdraw or disavow a work of art, or to claim authorship. These rights are more limited in the United States under the Visual Artists Rights Act, and would not apply to a work of literature. In an ideal situation an author certainly should be able to choose which works are or are not included in their life’s work. The Alabama Securities Commission, after questions of Ms. Lee’s capacity were raised, conducted an investigation and concluded Ms. Lee wanted the work published. And I guess will have to take that as the last word on Lee’s intentions. And yet given Ms. Lee’s condition and mental capacity, we may perhaps be able to add some fascinating elder law issues to the issues of race and civil rights that Watchman and Mockingbird have already raised. 

    -- Derek Fincham

Cornett: Go Set a Watchman – Breathing a Sigh of Relief

Our opening post is from Judy M. Cornett of the University of Tennessee College of Law:

My heart was lighter on July 14th, after I finished reading Go Set a Watchman, than at any time since the novel’s publication was announced in February. I had been afraid that it wouldn’t be authentic – it is -- or that it would be terrible – it isn’t. The Harper Lee who wrote To Kill a Mockingbird is here, with her keen sense of observation, her sometimes caustic wit, and her flawless rendition of Southern speech. Despite lingering doubts about its origin and its recent discovery, this is the novel Harper Lee had to write before she could write To Kill a Mockingbird. Unlike TKAM, with its tightly woven narrative, GSAW is frank, raw, and immediate.

The motif of returning to her roots to discover herself sets Jean Louise in opposition not only to her community’s current mores, but also to herself. Her discovery of her father’s opposition to desegregation throws Jean Louise into a tailspin. She feels like “a flounder flopping at low tide.”  She struggles to understand what has changed – is it Maycomb or is it her? The community she remembers did not hold racist views. Indeed, she is a product of that community. She questions how a community that now holds these views could have nurtured her.

The conflict between Jean Louise and Atticus exemplifies the loss of innocence that inevitably accompanies life experience. Jean Louise judges Atticus and the newly virulent racism of her hometown, but she does not renounce him or Maycomb. She learns that belonging to a community requires moving past judgment to reconciliation.

The question for Jean Louise is what does it mean to be from Maycomb, but not of it? Is there a way to renounce the community’s – and her father’s – racism without renouncing the people she loves, and even herself? The novel suggests that this is the dilemma for all progressive Southerners. As her Uncle Jack points out, “[I]t takes a certain kind of maturity to live in the South these days.”

And “these days,” far from being past, are here and now. Far from being dated, GSAW engages issues that still matter today. Atticus’s invocation of the Tenth Amendment as a ground for resisting Brown vs. Board of Education is echoed today in opposition to “Big Government” generally. And Uncle Jack’s argument that slavery was “incidental” to the Civil War is still a staple of those who oppose relegating the Confederate flag to museums.  GSAW suggests not only how the Old South became the New South, but also how the New Deal has become, in some quarters, the Bad Deal.

Those who idolize Atticus Finch have been disappointed by the novel because the lawyer who sought legal justice in a courtroom for one black man in the 1930’s can oppose social justice for all black people in the 1950’s. Their task is to understand the heavy irony in Calpurnia’s assertion that Atticus “always do right” in light of his decision to plead her grandson guilty to “keep him out of the wrong hands,” namely the hands of the NAACP’s black lawyers. 

    -- Judy M. Cornett 

Watchman Blog Symposium

It's my great pleasure to introduce a blog symposium on Harper Lee's Go Set a Watchman, which we'll be running this week at the faculty lounge.  So much of the commentary has been on Atticus Finch's fall from hero status when we learn that he's a supporter of the local White Citzens Council and that he debates Jean Louise over the Supreme Court's decision in Brown v. Board of Education.  And there is certainly a lot to talk about there -- from how Atticus fits with our understanding of southern "moderates" to the clash of constitutional visions between Atticus and Jean Louise, to gender, and a lot more than that.  And then there are the myriad of questions about this as literature (as opposed to its importance as a document about southern attitudes and race relations at the twilight of Jim Crow), and of course about the ethics of publishing this now.  

Over the next week we'll be posting a lot of takes on Watchman and To Kill a Mockingbird.

What struck me on my initial reading was how much Jean Louise articulated a new vision for the fourteenth amendment that was so different from Atticus' backward looking constitutional law.  Atticus had a constitutional vision grounded in states rights, in white supremacy, and in an out-moded historical understanding.  "What would happen if all the Negroes in the South were suddenly given full civil rights?," Atticus asks Jean Louise.  "I’ll tell you. There’d be another Reconstruction. Would you want your state governments run by people who don’t know how to run ’em?"  This reflects Atticus' idea that Reconstruction (then called Redemption by so many white southerners) was a period of disaster for white people in the south.  It correlates with, I'm sad to say, Thomas Dixon's novel The Clansman, which was made into the movie Birth of a Nation.  

In place of Atticus' constitutionalism, Jean Louise had a separate vision (though she did criticize the Supreme Court for overstepping on the Tenth Amendment).  She thought that the Court ""had to do it. It was put under their noses and they had to do it."  In her straight-forward phrasing, "the time has come when we’ve got to do right."  It was a vision of equal treatment grounded in a Jefferson-like slogan “Equal rights for all; special privileges for none."  

These conflicting visions remind me in some ways of the Herbert Wechsler -- Charles Black debate about Brown.  Black suggested that there was something inherently lawful in equal treatment.  (And speaking of Charles Black, I think you'll find Robin Black's essay about Atticus and her father a very moving read.) Charles Black, some many other civil rights leaders, Jean Louise, and the Supreme Court had a constitutional vision fit for the Atomic Age.  Meanwhile people like Atticus and his brother were lamenting the decline of property rights, which we saw again over debate on the Civil Rights Act of 1964.

Anyway, I'm very much looking forward to the posts; the ones that have come in already are terrific.  The first one will post early tomorrow morning and we'll go from there.  

Update as of Spring 2017, the Cumberland Law Review published a symposium on Harper Lee in fall 2016.

Watchman Trivia

In anticipation of next week's blog symposium on Harper Lee's Go Set a Watchman, I thought that I'd ask a trivia question related to the new novel.  There are some people and events who're referenced but not named -- I think one of them is a University of Alabama law professor who taught Alabama pleading.  I'm guessing that's based on a real person -- and believe me I have feelers out trying to figure out who that might be.  As yet, no definitive id.  But there's another reference to violence around the attempted integration of the Univeristy of Alabama back in the mid-1950s.  

Here's the passage I'm interested in: 

[Hester speaking] “Didn’t you read about those fancy professors asking those questions in that— that Convocation? Why, they’d’ve let her right in. If it hadn’t been for those fraternity boys. . . .”

[Jean Louise speaking] “Golly, Hester. I’ve been readin’ the wrong newspaper. One I read said the mob was from that tire factory—”

And now a question: what is this tire factory Jean Louise is referring to?  And perhaps you'd like to add who is the young woman who was integrating the University?

The image is the president's mansion at the University, which was a scene of some of the protest against integration.

Blog Symposium on Go Set a Watchman: Call for Posts

Here at the faculty lounge we're putting together a blog symposium on Go Set a Watchman.  Faculty lounge blogger Steve Lubet's essay, "Reconstructing Atticus Finch," in the Michigan Law Review back in 1999 was part of the movement to question Atticus' ideas when he was seen as a heroic figure by so many.  Now that Watchman has moved the story forward two decades to the post-Brown v. Board of Education struggle over civil rights, we see Atticus in a very different light -- as a supporter of the White Citizens Council and as a critic of the NAACP and the Supreme Court.  And we also see Scout (now known as Jean Louise) in a new light, too -- as someone at odds with her father and his world.  They had a clash of visions of constitutional law; Jean Louise had a theory appropriate for the Atomic Age (what a quaint throw-back to 1950s, dialog, isn't it?).

 

We want to post some of our readers' thoughts on this and are casting the net broadly for takes on Watchman, as well as reassessments of Mockingbird.  Given that our focus here in the faculty lounge is on law, we're particularly interested in assessment of the legal ideas on display in Harper Lee's work, but we welcome assessments from others vantages, such as literature, history, and race.

 

Steven Lubet, as our resident expert on Harper Lee, will be providing commentary at the conclusion of the symposium.

 

If you're interested in participating, please send a brief proposal to Al Brophy, [email protected].  In keeping with the faculty lounge's blog format, there will be no footnotes, but hyperlinks are welcome.  Posts should be in the range of 500-1500 words and we're hoping to have the symposium run July 27 to August 1.

Lines from Go Set a Watchman

With just a little bit of perspective, I want to pick out some lines from Go Set a Watchman that'll resonate with lawyers, law students, and law faculty (particularly property professors, I think).  The most exciting to me -- as a property professor and someone who studies property rights in the old south -- is "The time-honored, common-law concept of property-- a man's interest in and duties to that property--has become almost extinct.  People's attitudes toward the duties of a government have changed.  The have-nots have risen and have demanded and received their due."  (I know that's Atticus' brother speaking, but later he says that Atticus thinks the same.)  My gosh that sounds like stuff my antebellum southerners were saying.  And it also sounds a lot like what people were saying in response to the Civil Rights Act of 1964.

Much of the action divides along the reactions of Jean Louise versus her Maycomb relatives to the growing civil rights movement.  Early on, Atticus offers to defend a young African American man accused of (I guess it's) vehicle homicide -- he ran over a drunk white man who was in the street.  The man is Calpurnia's grandson -- and Atticus makes the offer so that NAACP lawyers won't take the case ; they would start asking questions about the composition of the jury pool.  This makes me think that the violence Karl Llewellyn wrote about back in 1933 -- which was designed to scare African Americans in Alabama away from using outside counsel.

Atticus' critique of Brown v. Board of Education reveals the breadth of his ideas of white supremacy.  When Atticus got past his critique of the law, he arrived at pure ideas of white superiority and black inferiority.  "What would happen if all the Negroes in the South were suddenly given full civil rights?," he asks.  "I’ll tell you. There’d be another Reconstruction. Would you want your state governments run by people who don’t know how to run ’em?"  (This reflects the ideas about Reconstruction -- called redemption, as in white southerners redeemed the south from the dominion of Yankees and African Americans -- so prevalent in southern thought from the 1890s through the Civil Rights movement.  And there are other echoes of this history in the book, such as Atticus' statement (or was it Jean Louise's thought?) that "No war was ever fought for so many different reasons.")

Perhaps the key to Atticus was his adherence to law, as he interpreted it.  And what the law meant to him was fixed in fundamental ways by the social surroundings.  Jean Louise thought that meant some kind of abstract justice, but not formal equality.  She told Atticus that "You love justice .... Abstract justice written down item by item on a brief— nothing to do with that black boy, you just like a neat brief ."  

At least that how Atticus' family thought about him -- Atticus' brother thought that "he’ll always do it by the letter and by the spirit of the law."  That may be a lot of what explains the shift from Atticus the lawyer working against lynching and the supporter of the White Citizens Council.  He was against lynchings, but not in favor of a law that upheld equal status.  

Jean Louise also had a critique of Brown ("[I]n trying to satisfy one amendment, it looks like they rubbed out another one . The Tenth. It’s only a small amendment, only one sentence long, but it seemed to be the one that meant the most, somehow.”)  And yet Jean Louise can see through this, to the reality.  (There's something to be done with her and legal realism, I'm feeling pretty sure.)  For she veered away from criticizing the Court to supporting the result: "that I don’t approve of the way they did it, that it scares me to death when I think about the way they did it, but they had to do it. It was put under their noses and they had to do it. Atticus, the time has come when we’ve got to do right."  And this is a place where Jean Louise, even, seems to have a paternalist view towards African American citizens.  She asks "Has anybody , in all the wrangling and high words over states’ rights and what kind of government we should have, thought about helping the Negroes."  Now it's hard to know just how much of this is flat-out paternalism (as in African Americans need help from white people) versus a sense -- that we sometimes hear from the like of DuBois -- that laws should look towards facilitating advancement (such as providing a decent education) rather than regulating.

Regarding the presence of communists at the University of Alabama (Robin Kelly has something to say about this, obviously):

I do know there's a cell right up the road in Tuscaloosa, and if it weren't for those boys a n--d be goin' to classes with the rest of 'em. ...

Didn't you read about those fancy professors asking those questions in that--that Convocation?  Why, they'd let her right in.  If it hadn't been for those fraternity boys.

And as long as I'm thinking about the University of Alabama, how about this law professor talking about his course in Alabama procedure: 

Although [Henry Clinton] was able to keep up and manage very well, he learned little of practical value. Atticus Finch was right when he said the only good the University did Henry was let him make friends with Alabama’s future politicians, demagogues, and statesmen. One began to get an inkling of what law was about only when the time came to practice it. Alabama and common law pleading, for instance, was a subject so ethereal in nature that Henry passed it only by memorizing the book. The bitter little man who taught the course was the lone professor in the school who had guts enough to try to teach it, and even he evinced the rigidity of imperfect understanding. “Mr. Clinton,” he had said, when Henry ventured to inquire about a particularly ambiguous examination, “you may write until doomsday for all I care, but if your answers do not coincide with my answers they are wrong. Wrong, sir.

I'll have to look and see who was teaching Alabama procedure at the University back in the 1940s, to see if this is a wink at someone in particular.  As to law school, Atticus "said it took at least five years to learn law after one left law school: one practiced economy for two years, learned Alabama Pleading for two more, reread the Bible and Shakespeare for the fifth."

The confusion of Jean Louise -- and so many other white southerners -- is captured at the end of the book when she says, "I did not want my world disturbed, but I wanted to crush the man who's preserving it for me."  The upshot here is that everyone comes out looking more human and less heroic -- and in that regard I think this book has better portrayals of the south's challenges and what the Civil Rights movement had to face as it remade the world.

Update: I've put some of this together into a short piece that's up at Time magazine's ideas section.

Go Set a Watchman: Quick Takes on Legal History

Maybe I'm going to be swimming against the tide on this one (not that different from walking out of Django and saying maybe I'm the only the person in the country who feels this way, but there was less violence in there than I'd expected -- and everyone looked at me and said, yes you are). But I think there's a lot to admire in Go Set a Watchman.

First off, as others have commented Tom Robinson's trial occupies only a small part in this novel, and get this -- he was acquitted. Bet there's an interesting story, which we'll likely never know, about why Lee switched the outcome. And so we're primed to see Atticus in even more God-like terms than before. But instead we find him attending a White Citizens Council meeting where all the usual rhetoric about how "God made the races separate" and the "Supreme Court justices are a bunch of communists" appear. And it's not just that the Court and federal government are in favor of integration; the New Deal and social security come under attack.

There are a couple of chapters that I think will warrant particular scrutiny in this. There's discussion in chapter eight about the centrality of property rights to civilization. The property professor in me just loves this stuff. (Also, a quick aside here: there's a cameo for an Alabama law professor who teaches procedure. Not the nicest guy in the world. I'll have to hunt around to see who that was. In fact, legal education isn't portrayed too favorably in here.)

Chapter 17 has the White Citizens Council meeting. Sounds just like them. Lee got their rhetoric right, I think. Maybe not all that hard. For me the most interesting part is chapter 18, where Atticus and Jean Louise discuss Brown v. Board of Education. Jean Louise is angry with the Supreme Court, because she thinks they overstepped the tenth amendment and they're telling southerners what to do again. The "again" part is somewhat confusing.  Does she mean for the first time?  Or is that a reference to the Civil War?  Jean Louise supports the outcome in Brown and believes it's necessary and just -- and she focuses on the many ways that Jim Crow is an attack on dignity. So while in some ways she sounds like Herbert Wechsler, she ends up with a defense of Brown. There's a lot to say about the conflicting views of constitutional interpretation. There's a lot more in here, about how Jean Louise is out of place in Maycomb, not just because of her views on race, integration, and citizenship are different from those of her father and uncle, but because she has different values on family and gender-roles from the people she grew up with. This reflects again that constitutional ideas and political philosophy correlate with a whole set of ideas that do not at first appear to be about politics at all.

While the reviewers are pronouncing this book a mess and a failure, those of us interested in our nation's long struggle with racial equality are going to be turning to this to understand the civil rights movement of the 1950s and 1960s. This gives us a glimpse of those who opposed integration, the generational struggles within the white community in the south, and it asks us to take a look at ourselves and ask what more is needed for justice. This is a more introspective book than Mockingbird, though certainly not the celebratory story of Mockingbird and I can sure understand why Lee's editors at Lippincott wanted a very different book.

I, for one, am really happy we have this. And can I admit that I prefer it to Mockingbird, which strikes me as too celebratory. This one is more pessimistic, but I think it offers a story that causes us to wonder about our demons and what more is necessary rather than offering up a two-dimensional hero. I am delighted we have this book and it raises Harper Lee in my estimation.

Update: I have some more thoughts, "Go Set a Watchman Reveals America's Constitutional Conundrum" up in Time magazine's ideas section.

Go Set a Countdown Clock

Well.  The world is eagerly awaiting Harper Lee's new novel -- and I hope to be up at midnight tonight to start reading it.  But I'm old and maybe it'll have to wait until tomorrow morning.  Couple of thoughts here, though, based on the pre-publication reviews I've been reading.  First, this may be a more nuanced novel than TKAM -- and I hope it is.  I guess one of the things that made TKAM so successful is that it was clear that Atticus was on the right side of history.  It doesn't take a moral giant to oppose a legalized lynching -- which given that this was set in Alabama in the 1930s -- reminds me of the Scottsboro trials and also the Tuscaloosa lynchings.  Every fair minded person could look at such travesties of justice and say, the law is out of touch with reality. That's why there were some lawyers in the 1930s, though not enough, who emerged to defend African American men accused of attacking white women.  That's what made TKAM a book that won the hearts and minds of readers for so many decades.  Obviously Steven Lubet is the master of TKAM in these parts; I'll just say that I think Atticus' zeal to make a political point (and call into question Mayella's testimony) may have come at the expense of making a simpler point: Tom wasn't physically capable of attacking Mayella.  Thus, the cause lawyer in Atticus may have overcome his ability to work successfully for his client.

But what I find particularly exciting about GSAW is that it presents the difficulties of the 1950s.  Where any fair minded person could say that the court proceedings were unfair, the lawyers were bounded by their society.  Men like Atticus who'd been opposed to legalized lynchings, because they were out of keeping with the rule of law, could still be opposed to more radical change.  That's one of the problems of the south in the 1950s and 1960s.  Appeals to equality were too much for some of the people who'd opposed the worst of the injustices of life under Jim Crow.  And so while the reviews have already passed judgment on this book as not being as good literature as TKAM, I'm cautiously optimistic that it may be a more nuanced and therefore better account of southern legal history.

Nuance may not have been what we needed in the 1960s -- we needed that heroic account that allowed us to tell ourselves that we were on the side of justice.  But maybe GSAW will cause us, now as adults with some distance on this, to wonder how much we were behind the full civil rights movement.  And in that regard GSAW may be the much better book, even if not the one that tells the compact story we want to believe.

By tomorrow morning I hope to have some better considered thoughts, rather than this prediction.  And with that I'll say, ladies and gentlemen, start your kindles!