The Faculty Lounge

New Hybrid Chapbook on Homelessness & Mental Health

I'm excited to announce that my hybrid chapbook, A Registry of Survival, is out from Last Word Press.  It explores my relationship with my mother during a time when she was homeless.  It also describes the strain on our relationship caused by her mental health struggles.  There is a legal angle too, as the work discusses teaching Property and the course's connection to what my mother was going through when she became homeless. Author Rebecca Brown commented that "It’s like the words of A Registry of Survival were extracted from the heart, like clean sharp needles pulling out, but true and hard and needing to be said."

Fostering Professional Identities: Ikigai, Tolstoy, and Therapeutic Jurisprudence

Recently I’ve had several conversations with fellow law professors about the American Bar Association’s new Accreditation Standard 303(b)(3), which holds that law schools “should provide substantial opportunities to students” for the “development of a professional identity.” The ABA’s Interpretation 303-5 of that Standard states that:

…(P)rofessional identity focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society. The development of a professional identity should involve an intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice. Because developing a professional identity requires reflection and growth over time, students should have frequent opportunities for such development during each year of law school and in a variety of courses and co-curricular and professional development activities.

I confess my skepticism towards ABA requirements that can easily prompt somewhat ham-handed attempts to treat topics about values and personal qualities as content to be covered -- in this case, shoehorning professional identity formation into enough courses to claim regulatory compliance. Rather, I see professional identity formation as something that develops organically and depends a lot on (1) the social, emotional, and intellectual maturity of individual students, and (2) legal educators and lawyers being aware of openings to weave potentially teachable moments into conversations and discussions.

Nevertheless, the topic itself is important for our students' professional development. As my Suffolk Law colleague Harmony Decosimo points out in her insightful taxonomy of factors contributing to professional identity formation, values, wellness, and professional competencies are all part of the mix. As I see it, opportunities to highlight these elements may occur at any time and in unscripted ways, such as a student’s response to a simulation exercise or clinical assignment, a professor’s reference to some aspect of practice, or an attorney’s account about representing a client in an important case.

To the extent that professional identity is tagged as a topic for classroom discussion, the approach should be engaging and contemplative, rather than directive or pedantic. Towards that end, I’d like to look at three items: (1) a Japanese concept for examining life purpose; (2) a novella by Leo Tolstoy that invites big questions about life and work; and, (3) a school of theory and practice that can serve as a useful lens for creating a life in the law.

Ikigai

Ikigai, explains Wikipedia, “is a Japanese concept referring to something that gives a person a sense of purpose, a reason for living.” It is usually captured via some version of the diagram reproduced here. Being at the intersecting center of all four circles is the state of ikigai.

Laura Oliver, writing for the World Economic Forum, says that the philosophy and practice of ikigai is “a way to live longer and better.” She explains:

While there is no direct English translation, ikigai is thought to combine the Japanese words ikiru, meaning “to live,” and kai, meaning “the realization of what one hopes for.” Together these definitions create the concept of “a reason to live” or the idea of having a purpose in life.

Oliver adds that those who have studied ikigai raise four key questions to start us down the path toward an ideal state:

• “What do you love?”
• “What are you good at?”
• “What does the world need from you?”
• “What can you get paid for?”

Hmm, this sounds like an invitation to law students to consider professional identity formation.

UPDATE: The Breaching of Macomb’s Dam(n) Bridge

One writing truth that I learned (relearned?) writing Naming Gotham: The Villains, Rogues, and Heroes Behind New York Place Names is that book publishers are serious about word limits. Unlike a law review article where the word limit is more of a suggestion, my publisher gave me a hard upper limit for words in the book. I ran out of space long before I ran out of words. So, I have taken to blogging because there are more stories I want to tell. This is one of them. You can read about the book project here, and the first installment of this saga here. 

When we last met, Robert Macomb had constructed his dam(n) bridge across the Harlem River . The New York legislature had granted him the right to build the dam so long as it did not impede navigation. Legislation authorizing the dam explicilty required Macomb to build and maintain a lock to ensure that the river remained navigable. 

Macomb ignored this injunction, much to the fury of the growing population of Westchester that was now cut off from New York harbor.  After Macomb’s dam was completed, boats seeking to traverse this portion of the river had to unload above the dam, haul the boat over the bridge, and then reload the boat. This was hard, dangerous work that made navigation well nigh impossible.

Enter Lewis Gouverneur Morris, scion of the wealthy Morris family that owned parts of Westchester and much of the Bronx, including the areas presently known as Port Morris and Mott Haven.  The family was extremely politically powerful. Lewis’s grandfather was Chief Judge of the New York Supreme Court, and his great-uncle Gouverneur Morris not only signed the Declaration of Independence, but also wrote the preamble to the Constitution.

Westchester landowners  drafted a Remonstrance to the State Legislature. This Remonstrance, signed by more than 100 people, averred that before the construction of Macomb’s dam the Harlem River was navigated by schooners, sloops and other vessels. Although the main thrust of this Remonstrance dealt with the High Bridge and the Croton aqueduct, it also documented and complained of the navigation problems caused by Macomb’s dam. They appointed Lewis G. Morris as their agent for addressing this problem.  Lewis brought the Remonstrance to Albany, but also took on a less orthodox role in solving the navigational challenges.

Characterizing Macomb’s dam as a public nuisance, these leading citizens of Westchester decided to take matters into their own hands. Declaring that “any person injured or incommoded by said nuisance [could] abate the same,” they deputized Lewis G. Morris and vested him with authority to remove enough of it to allow navigation. They not only agreed to pay the costs of this direct action, promised to bail out anyone who was arrested, but also advised “We recommend the employment of a strong force of men and scows, that the work may be promptly effected, and to the end of obviating opposition.” 

On August 31st 1838, Morris and his entourage boarded the Schooner Superior and sailed up to Macomb's dam. They demanded passage through the dam to deliver a load of bricks upstream.  The Bridge keeper (remember there was an illegal toll bridge atop the dam) stated the obvious—that he could not let them through because the bridge had no lock and thus there was no way for a schooner to pass.  

On September 8^th, Morris and entourage again returned in a sailboat and demanded passage through Macomb’s dam. Again they were denied, there being no lock that could afford them passage.

Finally, on the evening of September 14^th, Morris and his entourage returned once more, this time on Nonarpiel, a vessel hired to transport coal from New Jersey to Morris’s residence upriver from the dam. Morris again demanded passage through the dam.  Upon being denied passage, Morris and his men began “quietly and in a peaceable manner commence taking down part of said dam and bridge, and did take up sufficient thereof to let said vessel pass through.”

Under Morris’s direction, 63 men spent much of the next week dismantling Macomb’s dam, ultimately removing roughly three spans of the dam and demolishing one of the abutments. Through her trustee, Mary Pell Cornell Macomb sued (Robert had already died) alleging a trespass. After a trial on the merits, the judge instructed that “if the jury should find [the dam] was a public nuisance then the defendant had a right to abate it by his own act” and “that in doing so, the defendant had a right to remove so much of the dam as was necessary to make a safe and convenient passage for all vessels.”  The jury ruled for Morris on all counts. The appeals court not only affirmed but also awarded Morris roughly $400--the cost of dismantling the dam.

In 1854, the City of New York repossessed Macomb’s dam, and four years later, the New York legislature finally directed New York City and Westchester County to remove the dam and build a new toll-free bridge. To facilitate navigation, this bridge was built as a swing bridge. The bridge was landmarked in 1992. 

Check out Naming Gotham to learn more about the gossipy backstory behind New York City infrastructure.

Bonus: The multiple civil proceedings that emerged from this incident were among the earliest affirmations of the federally guaranteed freedom of navigation and an early definition of waters of the United States. These cases also framed a robust theory of public nuisance that might be of interest to environmental lawyers today.

Added Bonus for Property Professors: Robert and Mary Macomb were extremely litigious.  One of their many cases, Baker v. Lorillard, provides a remarkable tour of estates in land, including how to interpret ambiguous grants after the legislative elimination of fee tails, the consequences of partitioning estates encumbered by life estates, and the various ways vested remainders might be divested by executory interests.

poem on Pierson v. Post

My poem on Pierson v. Post, written from the fox's perspective, is out in Hastings Journal on Gender & the Law. The full cite is 34 Hastings Women's L.J. 113 (2023), and the poem is available here:  Download Poem

Miranda Warnings Date Back to 1748

I filed this brief of Historians of Criminal Procedure in Vega v. Tekoh this week that shows Miranda warnings date back to 1748.  (Thanks to Steve Lubet for asking me to post this.  Steve is no stranger to discovering fascinating history of the warnings -- Gov. Wise gave them to John Brown in 1860, Lubet, 52 Ala. L. Rev. 425 (2001).)  A true pleasure to work with Mark Godsey (Cincinnati), Tim Hitchcock (U of Sussex and a co-curator of the Old Bailey Session Papers), Tracey Maclin (BU), Robert Shoemaker (U of Sheffield and co-curator of the Old Bailey Session Papers), Simon Stern (Toronto), and George Thomas (Rutgers).   There were five examples we found that pre-dated the Bill of Rights -- research in the Old Bailey Papers is not easy.   So I want to particularly recognize Tim Hitchcock who located the 1748 case and my research assistant, Nicole Singleton (2L Duquesne), who found two of the pre-Framing cases.  

https://www.supremecourt.gov/DocketPDF/21/21-499/220472/20220406170837528_Tekoh%20final%20brief%2042283%20pdf%20Oliver%20--%20filed.pdf

Hiring Announcement: University of Pittsburgh School of Law (Dean of Students)

The University of Pittsburgh School of Law seeks a dynamic, empathetic, and approachable leader with an enthusiastic commitment to the educational mission of the Law School and a passion for helping students achieve their academic and professional goals to serve as its next Assistant Dean of Students. 

Reporting to the Dean of the Law School, the Assistant Dean of Students provides leadership and vision in the area of student affairs, ensuring that students have a personalized, supportive, and successful educational experience. Prioritizing student wellness, the Assistant Dean of Students coordinates and leads efforts to counsel, mentor, and advise students to be their best and healthiest selves amidst the stresses, rigors, and anxieties that are part of the law school experience. 

The Assistant Dean of Students must work closely with the Office of Equity and Inclusive Excellence to pay particular attention to the critically important task of fostering an inclusive community that serves the needs of a diverse student population. Where necessary, the Assistant Dean of Students must also work with the Vice Dean to administer and apply the Law School’s Standards of Academic Integrity.

A bachelor’s degree is required. A J.D. or advanced degree in a relevant discipline is also required. Significant experience providing guidance and/or counseling is required, and such experience in higher education settings is preferred.

To apply, please visit here. 

What Deference is Owed to the Wishes of a Deceased Author or Artist?

Foucault. Harper Lee. Lord Byron. Orwell. Auden. Thomas Hardy. Henry James. Beckett. Dickinson. Robert Louis Stevenson. Plath. The executors or administrators of each of these writers' estates have wrestled with the question of how the author's work should be treated after the author's death. Some left specific instructions prohibiting publication or autobiographies, instructions that were ignored. For T&E and IP scholars, these situations raise many interesting questions.

I was curious to read in the (UK) Guardian, this piece by Blake Morrison. He asks in the book section, "Should an Author's Dying Wishes be Obeyed?"  Here is an excerpt:

If book burning stems from anger, however misguided or orchestrated, manuscript burning stems from fear. Better to destroy the evidence than to allow it to get into the “wrong” hands. Even now, in a supposedly confessional age, the potential for vicarious outrage is enormous; it’s only the list of offences that has changed. Where illegitimacy, alcoholism, humble social origins or a history of mental illness might once have been cause for shame, these days it’s racism, misogyny, political extremism and sexual abuse. * * *

Texts have an immense power to cause pain. As Stephen Fry likes to say: “Sticks and stones may break my bones, but words will always hurt me.” * * *

That authors can exert their influence from beyond the grave is no fiction; just because they are past doesn’t stop them tampering with their future. In his lifetime, Samuel Beckett was careful to police new productions of his plays: stage directions had to be followed to the letter. Since Beckett’s death, his nephew Edward Beckett has done the same. * * *

Slavish obedience is one route for an executor, defiance for the sake of literature another. When several parties are involved, each jealously possessive of the author, things get trickier.* * *

For most literary executors doing right by an author is humdrum work: keeping the books in print, looking after royalties, answering letters, selling manuscripts, charging permission fees, and generally ensuring that the authorial brand name goes on even though the author has been discontinued. But it’s not a job to take lightly. The duties are at best thankless (the person who appointed you isn’t around to show gratitude) and at worst it’s an ethical nightmare. Authors are difficult enough to deal with when alive. And things don’t get any easier when they are dead.

The full piece is available here. Food for thought.

Star Trek Copyright Infringement Claim Settles

I usually try to keep my geekery off the blog, but I've been watching the recent litigation involving the AXANAR (Star Trek fanfiction) film with interest in recent weeks. After the District Court for the Central District of California found on January 3 that the fanfiction film could not avail itself of the fair use defense to copyright infringement, the case went on to settle last week. The settlement reportedly includes the stipulation that the defendant adhere to a new set of fanfilm guidelines put forth by Paramount (which owns the relevant copyrights). These guidelines will likely affect future fanfilms. Presumably, if you adhere to the guidelines, you're working under a license from Paramount and won't have infringed copyright. The guidelines state that fanfilms have to be less than 15 minutes long and cannot use "Star Trek" in the title, among other things.

In some ways, it's actually helpful to fans when copyright holders set out guidelines like this, to make it clear precisely what fan activities are allowed with the copyright works. The Kindle Worlds program set up by Amazon a couple of years ago takes a similar approach to promulgating guidelines set out by the copyright holders of works included in the program to allow fans to make their own fanworks without infringing copyrights i.e., effectively under license from the copyright holders.

The downside is that it's possible, and indeed likely, that many of the guidelines now being put forth by copyright holders about fanfiction are actually more restrictive than, say, the fair use defense to copyright infringement might allow, but with the guidelines in place, many fans may take the path of least resistance (resistance is futile?) and comply with the guidelines for avoidance of doubt.

Creators of fanworks have not had much clear guidance from the law about when, and whether, their works are fair use - it's very difficult to make such determinations in the abstract and copyright law really requires these issues to be decided on a case by case basis. Several law professors (notably Rebecca Tushnet) have done a lot of extremely useful scholarly work over many years on fanfiction and copyright infringement, but we still have a long way to go in educating fan creators about their rights and obligations.

What kind of impact might the Star Trek infringement settlement have on the scope of fanfiction and fair use, if any? Or are we just seeing more of the same in the battle between content owners and fans?

Washington College Literary Society Debates on Slavery and Empire

I have a new paper on the debates about slavery and empire in the Washington College Literary Societies  in the years leading into Civil War.  This is part of the focus I've had for years now on college literary societies -- especially the University of Alabama, UNC, and Washington College -- as places of debate about public constitutional ideas and political theory.  Often times I've focused on the addresses given to those societies at graduation, at the beginning of the school year, and on holidays -- such as Washington's birthday and July Fourth.  This is also part of my search for public constitutional ideas in cemetery dedication addresses.

I'm also deeply interested in what the students had to say -- in their orations to the literary societies and at graduation, in their literary society journals, and especially in their debates.  For Washington College --- as for UNC, UGA, Davidson, Hampden-Sydney, Wake Forest, and a little for William and Mary -- we have the debate topics and often the outcomes of the debates but no transcript or even outline of the arguments.  The topics themselves, though, are very revealing -- and they reveal that the students were increasingly proslavery.  For instance, they moved from questions like "is slavery moral" in the 1830s to a more radical question, like "should the slave trade be re-opened" in the late 1850s.

This paper is focused around issues of slavery, race, and empire -- but there's really a lot more that could and should be done with the debates.  Over a number of summers I've spent weeks up in Lexington going through the records and someday soon I hope to have a paper that takes a 360 degree look at those topics and what they say about the intellectual geography of Washington College's students -- on issues from economics to individualism, morality, religion, and political theory.  (It's a great place to spend a little time each summer and I'm delighted to say that I've almost concluded that work.)  I also have a paper on the Wake Forest debates that's chugging along with my former student Elizabeth Carroll -- and we hope to wheel that out one of these days.

I also have a broader paper on proslavery and sometimes antislavery ideas at Washington College before the Civil War.

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.

Go Set a Watchman

I should probably leave it to Steven Lubet, the faculty lounge's resident expert on Harper Lee and To Kill a Mockingbird to discuss this.... The internets are lighting up right now with the announcement that a novel written by Harper Lee before To Kill a Mockingbird is set for publication this July.  The novel is called Go Set a Watchman.  It deals with Scout as an adult and is set in the 1950s -- some years after the plot of To Kill a Mockingbird.  Actually, it was this novel that led to Mockingbird when an editor, intrigued by flashbacks to Scout's early life in Go Set a Watchman suggested that Lee write a novel about Scout's early life.  Lee thought the novel was lost, though a copy was recently found by her lawyer, apparently attached to a manuscript of Mockingbird.

I'm going to be mighty interested in this -- for all sorts of reasons.  First, I'll be interested in the amount of law there -- and particularly whether there are the kinds of issues raised by Mockingbird, where the focus on civil rights advocacy may have overshadowed the efforts to free Tom Robinson.  If there's any significant amount of law in the novel, there's going to be a feeding frenzy among professional responsibility, trial advocacy, civil rights, and critical race scholars.  Second, I'm going to be interested in seeing how the depictions of the civil rights movement appear and what Lee makes of the generational divide between Scout and her father and whoever else populates the novel.  

I was talking recently with one of my colleagues about Tony Amsterdam's legendary memo from the mid-1970s about the future of challenges to the death penalty and how many of those challenges he accurately forecast.  It'll be exciting to see how the views that Lee lays out in the novel match up with our understanding of those difficult -- but still optimistic years -- and also how they match up with our current understandings of the options and challenges of race and equality today.

Ladies and Gentlemen, start your word processors.  The image is of the Monroe County Courthouse in Harper Lee's hometown of Monroeville, Alabama.  It's from our friends at wikipedia.

Update: Richard McAdams speculates on how our view of Atticus Finch may change when we view him in the setting of the 1950s rather than the 1930s at Huffington Post.

The Scalp Tree

One of the last pieces of the puzzle that I'm working on for University, Court, and Slave -- I hope, actually, the very last piece -- is adding something on the literary magazines published by students at southern universities, largely in the 1850s.   Just as I think we can -- and should -- use student literary debates as a gauge of attitudes, we can use the literary magazines to gauge students' ideas.  We hear a lot about individualism, about economic progress, and about the lessons of history.  And of course there's a lot about Union, slavery, and southern nationalism.  There are a surprising number of articles about the problems with the legal profession -- and I want to talk about that sometime soon.  These are in some ways the intellectual ancestors of the scam bloggers.  I'll put that together in a post soon, along with a reference or two to the problems with making a living as a lawyer from University of Virginia professor George Tucker's  novel, The Valley of the Shenandoah.  (I had earlier identified Tucker as a law professor at UVA -- and Kent Olson of UVA Law School kindly pointed out that while Tucker was a lawyer and a professor at UVa, he taught moral philosophy rather than law.)

There is also some original work of fiction -- some of it is poetry; some are short stories.  And even in that fiction I think we see some insight into the students' ideas of morality and sometimes law.  Let me turn now to a completely obscure little gothic story about a native American, a Cherokee chief, whose family was wiped out by European settlers.   He then lived on the margins of European settlement -- near a swamp -- and killed local settlers whenever he had the chance.  Some years later, hunters found the chief's skeleton.  Nearby were scalps hanging from a tree.  Yet, though the chief was long dead the place maintained some mystic power and even generations later people passing by the scalp tree found it a disturbing and scary place.  The story, which appeared in the Virginia University Magazine in 1857 is  called "The Scalp Tree."

So far as I can tell, no one has ever written about "The Scalp Tree."  Maybe that tells us something about its quality as literature -- or more likely how obscure student literary magazines were.  But I think there's something significant about the author's acknowledgement of the injustice of how natives were treated and maybe also how that continued to haunt -- quite literally -- the descendants of those who perpetrated that injustice for generations afterwards.  The unjust treatment of natives, even if not the inter-generational haunting, appears periodically in legal literature, from Chief Justice Marshall's opinion in Johnson v. McIntosh to the obscure novel by Nat Turner's lawyer James French, Elkswatawa.

The illustration is the prospectus for Hampden-Sydney's magazine (spelled somewhat differently back then).

Twenty-Two Months a Slave

In August 1825 a ten year old African American child went looking for work along the Philadelphia waterfront. An African American man offered the child, Cornelius Sinclair, a small wage for unloading water melons from a sloop anchored nearby.  The two paddled out to the sloop; but upon arriving, Cornelius was bound and held along with several other young free people.   Soon the sloop began sailing south into the Delaware bay.  Thus began Sinclair's odyssey that took him far from home, into the depths of slavery in the south, as a slave to a tin smith in the state's capital, then to a courtroom in Tuscaloosa, Alabama, and many moons later, back home to Philadelphia.

The first stop was Delaware's southern shore.  Sinclair and other kidnapping victims were held at the house of the  kidnappers along the Delaware-Maryland border for a short while.  The kidnappers brought their human cargo to Maryland's chesapeake bay, where another ship took the captives further south.  Then followed a journey on foot across Georgia, to Indiana territory in Alabama, and to Tuscaloosa -- the state's capital at the time -- where Sinclair was sold to one James Paul.  The rest of the kidnapped people were brought to Mississippi.  In a most improbable turn of events Sinclair was rescued by two Methodist ministers.  One of them filed a lawsuit on his behalf, while one of their congregants posted an enormous bond.  This set in motion a series of lawsuits -- one by James Paul alleging that the ministers had stolen Sinclair -- and defamation suits by both of the ministers against Paul.  The lawsuits pitted a violent and misanthropic man, disliked by the community, against two ministers.  

In April 1827 Sinclair's freedom suit came to trial before a justice on the Alabama Supreme Court, John Gayle, sitting as a circuit judge.  John Gayle is now remembered as the Alabama governor who tried to prosecute a New York abolitionist for sending antislavery literture to Alabama in July 1835.   But in April 1827 Gayle was an actor in favor of freedom.  Sinclair won his freedom, but it came at an enormous price in time and money.  And it seems to have divided the community.  As Sinclair departed for Philadelphia, to face down one of his kidnappers in a criminal prosecution there, one of the Methodist ministers headed north to Ohio to live. 

Judson Crump and I have our paper about Cornelius Sinclair's twenty-two month odyssey, from free person in Philadelphia to kidnapping victim and enslaved person in Tuscaloosa, back to freedom in Philadelphia, up on ssrn.  It is an extraordinary tale and a most unexpected one.  This is a story that has been written about only from the perspective of what happened in Philadelphia; no one has, so far as I can tell, yet talked about the constellation of lawsuits in Tuscaloosa.  There has been no discussion of what this means for our understanding of the rights of free people in the pre-Civil War south, a topic of growing interest these days from historians like Melvin Ely and Kirt von Daacke, to legal historians like Martha Jones, Judith Schafer, and Leah VanderVelde.  Over the next couple of weeks I hope to talk about a lot of different pieces of this puzzle -- from what happened and who the players were in this drama, to its implications for our understanding of the southern legal system, how this case fits into the recent literature on slaves and free people in the southern legal system, and what this says about the meaning of the rule of law in the old South.  If you'd like the full story right now, you can read the paper, which we're calling "Cornelius Sinclair's Odyssey," here.

The illustration is Philadelphia's Independence Hall, which I'm using for its connections to the American Revolution rather than Cornelius Sinclair's odyssey.

I have a podcast of a talk I gave at UGA Law School on Twenty-one months a slave.

Confederate Monument Trivia Question

When I first saw the Pittsboro County, VA confederate monument I thought he was facing south.  That surprised me because it would be a big no, no -- as people obsessed with these things will tell you.  I now think he's facing more west than south.  But whatever.  All of this reminds me that I want to ask a two-part trivia question related to a Confederate monument in twentieth century fiction.  First, where is the following passage from?  Sure you can google this, but I think it'll be pretty obvious at the least the author, even if not the book.

Second -- and more importantly: what the heck is this about the UDC members who storm out of Gone with the Wind?  I mean, is it possible that back in the 1930s it was too enlightened on issues of race for some people?  The answer may surprise you.

[E]pilogue and epitaph, because apparently neither the U.D.C. ladies who instigated and bought the monument, nor the architect who designed it nor the masons who erected it had noticed that the marble eyes under the shading marble palm stared not toward the north and the enemy, but toward the south, toward (if anything) his own rear -- looking perhaps, the wits said (could say now, with the old war thirty-five years past and you could even joke about it -- except the women, the ladies, the unsurrendered, the irreconcilable, who even after another thirty-five years would still get up and stalk out of picture houses showing Gone with the Wind), for reinforcements; or perhaps not a combat soldier at all, but a provost marshal's man looking for deserters, or perhaps himself for a safe place to run to: because that old war was dead; the sons of those tottering old men in gray had already died in blue coats in Cuba, the macabre mementos and testimonials and shrines of the new war already usurping the earth ....

Jurisprudence at Antebellum Davidson College

Very excited about Heidi Rickes' new article on ideas about law and political theory in circulation on the campus of Davidson College from its founding in the late 1830s to the Civil War.  This is largely based on addresses to the two literary societies by outside speakers, but Heidi also uses debate topics at the two literary societies and the subjects of few student graduation speeches.  And then she links those ideas to some of the decisions by the North Carolina Supreme Court and some of the legislature's debates over internal improvements.  I think there are two important points that emerge from this.  First, there is the methodoligical point that we should be using oratory before the War to study ideas about obedience to law, utility, duty, vested rights, Union and a whole host of other ideas.  While oratory's made a strong showing in the historical literature in recent years I don't think its promise has been fully realized by legal historians (with a few notable exceptions like Robert Ferguson).  Second, Heidi shows again -- as we've been hearing from people like Daniel Walker Howe, Lawrence Kohl, G. Edward White, and William Fisher -- Whig ideas of Union, ordered liberty, and economic and moral progress were central to colleges and to the judiciary as well.  This links again elite institutions like colleges and courts in a common cultural mission.  That those ideas were unable to constrain us from Civil War is one of the topics I hope Heidi and others will explore in depth in follow-up projects.  You can read the full paper, "Jurisprudence at Davidson College Before the Civil War," at ssrn.

Close readers of the faculty lounge may recall that some years ago I wrote about the possibilities of work on Davidson College.  I'm delighted that Heidi's mined all of that and more.  The paper's terrific and I'm looking forward to a lot more like it soon -- including, I am rather reliably informed, something on William and Mary, which should prove a pretty good comparison with Davidson's moderate, Presbyterian ideas.  And maybe one of these days there'll be a paper on Wake Forest, too -- had a terrific time in the archives today reading debate topics from the Wake literary societies.

The image is of Davidson's Philanthropic Literary Society building.

Self-Delusion Spreads from Professional to Graduate Education; Consternation Curiously Absent

I want to be clear at the outset:  I love literature.  I was an English major, and I’ve never regretted it for a moment.  I seriously considered pursuing a Ph.D. in English.  I could not have a deeper faith in the liberal arts as a path to the betterment of all mankind.

So imagine my dismay at some recent reportage in the Chronicle of Higher Education.  Graduate programs in languages and literature are suffering troubles all too familiar to the readers of these pages:  In these straitened times, the tenure-track academic appointments for which a doctoral degree is the traditional and necessary preparation are available for only about 60% of the recipients of doctorates in language or literature (a number chillingly reminiscent of the 56%-57% of the last two law-school graduating classes who managed to find a full-time, long-term job requiring a law license within 9-10 months of graduation, though when you exclude school-funded and self-employed positions as well as a few other confounders and irrelevancies, that number is closer to 53%).  The Modern Language Association (a trade group for college and graduate educators and scholars in language and literature analogous to AALS) recently released a report conceding “[w]e are faced with an unsustainable reality.”

The solution?  Simple—dismiss the “reality” as “wrong”:

"The discourse of Ph.D. overproduction is wrong," said Russell A. Berman, who led the task force that wrote the report and is a professor of comparative literature and German studies at Stanford University. "What we need instead is a broadened understanding of career paths.” 

As the Chronicle explains, the MLA believes that language and literature departments should urge upon students considering graduate degrees

what else they could do with a language or literature Ph.D.  Career options off the tenure track . . . include teaching at community colleges and high schools, working at cultural institutions such as heritage museums and libraries, and putting skills to use in the private sector.  "The subject matter may, in fact, be far from literature," Mr. Berman said, "but the rich professional formation acquired during the course of doctoral study can be put to good use.”

The Chronicle also reports that the MLA “is taking a stance similar to the American Historical Association, whose executive director has said that history Ph.D.’s are not being overproduced but underused.”

If you’re feeling a certain frisson of déjà vu, you don’t need a doctorate in French to understand why.  The MLA appears to be arguing that you should pursue a doctorate in language or literature (median time to completion nine years, by the way) because it will make you a better high school teacher.  If you think this is silly, you’re right.  If you think this is silly, but still believe that people unsure of their desire to practice law or do something clearly and directly law-related should attend law school because (as comp lit Prof. Berman put it to the Chronicle) “the rich professional formation acquired during the course of [law] study” is (as I lampooned it in a past post) “ideal preparation for any line of work, a thoughtful life, the vicissitudes of holy matrimony, Monty Python’s Argument Clinic, or the searching examination that can be expected from St. Peter when the matriculant finally reaches the pearly gates,” you are engaging in the kind of wishful thinking that would earn your contempt if you observed it in a colleague or a student.

We need to get a few things straight.  You can get a doctorate in English because you love English and have the time and money to devote yourself to what you love, regardless of what comes after your studies are done.  But once we start talking about education as preparation for a career, the argument changes:  Specialized professional and graduate education is supposed to prepare you for specialized lines of work.  There is no honest or sustainable basis for a view of specialized professional or graduate education as proper (let alone cost-justified) preparation for whatever job the market may eventually offer you.  The fact that a doctorate in English, or a law degree, will provide its holders with thoughts or perspectives on unrelated work uncommon for others without their benefit does not mean that someone would rationally pursue either (or both, given that they’re apparently both ideal preparation for everything) in order to secure work unrelated to the discipline studied. 

This is classic post-hoc fallacy:  If you want to consider whether education X is good preparation for job Y, imagine yourself planning a path to job Y, and think about whether you’d consider education X an essential, or at least a very important, step on that path.  The fact that you previously went to law school, and now have a nonpracticing position that many people would consider a good job (say as a high-school civics teacher, or as a paralegal), does not mean that the former was the cause of the latter.  Nor does it mean that the latter justifies the former in any meaningful sense.  Nor does it mean that whatever perceptual or perspectival advantages the former course of study lends to the later  work justifies the education as a sensible preparation for the job if you were thinking about it ex ante.

Put slightly differently, the fact that you get a job not requiring a law degree after you graduate from law school does not, without a great deal more, make that job “JD Advantaged.”  Law schools that are silently indulging that fallacy in their employment reporting should cut it out.  If the Section 509 compliance audits that the ABA announced last year to test the accuracy of law-school disclosures are to be worth a damn, they will focus relentlessly on this issue.

And how do we explain this spreading contagion of laughable illogic among America’s best-educated and most thoughtful?  I’m afraid we need look no further than Upton Sinclair’s well-worn observation that “it is difficult to get a man to understand something, when his salary depends on his not understanding it.”

Bernie

Antebellum UVA Students and Jurisprudence

One of my projects this summer is going to be looking closely at the ideas of UVa students before the War.  I'm going to focus on their ideas about jurisprudence.  We know a lot, actually, about the UVa faculty towards jurisprudence.  UVa law professor James Holcombe wrote extensively about the support for slavery in natural law and about the utilitarian calculus that supported slavery, too.  He brought these ideas to the Virginia legislature when they were debating secession.  Albert Taylor Bledsoe, a mathematics professor at UVa, wrote an extensive treatise, Liberty and Slavery, that relied upon the hierarchy inherent in nature to defend slavery.  George Frederick Holmes had a similar interpretation of political theory -- and also critiqued Uncle Tom's Cabin in particular.  He thought that slaves were treated well and fared better than they would in freedom.  There were some other ideas on campus, too -- a little known professor who spent only a short time teaching at UVa presented an antislavery critique of Bledsoe's treatise.

But what has received relatively little attention up to now are the ideas of students.  Peter Carmichael's outstanding book, The Last Generation, looks at a number of facets of intellectual life at the University (and other Virginia schools, too), to give us a sense of the political and social attitudes of UVa students.  He shows they shifted decidedly towards proslavery ideas and actions in the decade before War.  Peter reconstructs these ideas from a variety of sources, including masters' theses, letters and addresses by undergraduates, and student literary journals.  I want to build on Peter's work by returning to many of those sources and reading them for students' ideas about historical jurisprudence, political theory as it related to stages of civilization, and the role of law in reform mores (or, more likely, the dependent role that law serves in supporting mores).

The student literary magazine was published periodically and under a couple of different titles from the late 1830s to the Civil War.  My primary focus is going to be on late antebellum period when it was known as the Virginia University Magazine.  Want to see some of this?  Here are scans of some of the more relevant pieces from the  June 1859, October 1859,  January 1860,  March 1860, and June 1860 issues.  All of this, I hope, will be further testimony to how much you can learn about a people by reading their literary output.

Black Power in the Prison Library

In honor of National Library Week, perhaps it's time to reprise a post from a while back on a list of books that prisoners wanted added to their library:

The Patriot Act’s ability to require librarians to disclose the books that individuals have borrowed gives us a lesson in the importance of books.   The FBI’s interest in who is reading what is only the most recent evidence that books are both important ways of transmitting ideas and important signifiers of which ideas readers find important.  (I know there's some question about the number of times that libraries have been asked to disclose lists of what individuals have borrowed and I hope to learn a little more about this.)  It is not just law enforcement that is interested in reading habits, however. 

We are hearing a great deal about the project of “the history of the Book” these days.  It aims to understand the role of books as vehicles of change: how do books contribute to changes in society, how do they help to create and sustain identity.   Sometimes historians look at books, to measure a culture.  What does Invisible Man say about the culture of the United States on the eve of Brown?  What do Booker T. Washington’s Up From Slavery and W.E.B. DuBois’ Souls of Black Folk say about Jim Crow?

At other times, historians draw inferences about people from their libraries.  This post talks about a list of about 120 books on the "black experience" that Judge Don Young ordered to be placed into the Marion, Ohio prison library back in 1972,  Taylor v. Perini, 413 F.Supp. 189, 215-19 (D.C. Ohio 1976).  What interests me about the list is its potential for mapping the sources of identity in the late 1960s and early 1970s.  What, then, are the books that the judge ordered added?  More below the fold.

Picturing the Landscape in the Nineteenth Century

At the end of this week the biennial conference C19 will be in Chapel Hill.  I'm very much looking forward to the panels and hearing about a lot of topics that I don't normally have the chance to learn about.  And I'm also looking forward to a panel on Saturday afternoon, "Picturing the Landscape in the Nineteenth Century." The panel description is as follows: "Focusing on paintings held by the Ackland Museum, “Picturing the Landscape in the Nineteenth Century” will explore the ways that artists in the United States and across the globe negotiated the formal and ideological challenges associated with representing land visually in contexts of nationalist expansion, imperialism, and colonialism."

The speakers are me, on “Fencing the Commons: Private Property and Progress in Antebellum Thought”; Ross Barrett of the University of South Carolina on “Reaping a Profit: Farming and Land Speculation in Antebellum Painting”; and Joy Kasson of the University of North Carolina at Chapel Hill's American Studies Department, on “Envisioning the Dark Underside of Progress: Thomas Cole’s Course of Empire.”  The panel will meet in the Ackland Museum on Saturday from 2:45 to 4:15.

I'm going to be covering a lot of ground from an article a few years back on "Property and Progress," but I want to focus more intensely than did that piece on judges' attitudes towards private property and especially on how the landscape art correlates with judical doctrine supporting the development of property and the protection of private property.

The illustration is Asher Durand's 1853 landscape Progress.  The program of C19 is here.  A podcast of my talk is here.

Ralph Ellison Conference in Oklahoma City

This coming Saturday I'm going to be back in Oklahoma City for a conference celebrating the 100th anniversary of Ralph Ellison's birth.  This is part of the MELUS [Society for the Study of the Multi-Ethnic Literature of the United States] Conference, which is focused around Ellison's essay "Going to the Territory" this year.  I'm deeply interested in "Going to the Territory," which was given at Brown in 1979 and spoke about Ellison's time in Oklahoma and how Oklahoma was in many ways different from the rest of the south.  Different, in that the patterns of deference so prevalent in the south weren't so present in Oklahoma -- thus there was opportunity for race mixing and for advancement.  But then again there were extraordinary episodes of violence and, of course, the Klan.  The conference is at Oklahoma City's Skirvin Hotel, where Ellison worked in his youth.  I'm really looking forward to the discussion -- I'm going to be talking about the context of race and law in Ellison's Oklahoma, starting with the Tulsa riot of 1921 and moving forward to Roscoe Dunjee, who was one of Ellison's mentors and also was a key figure in the Oklahoma branch of the NAACP, and the road to Brown.  There are, I think, a lot of parallels between Invisible Man and Brown and Ellison has a lot to say about the rule of law as well.

The organizers have put together a fabulous discussion -- the line-up is as follows: 

12:30-12:40

Judge Robert Henry Opening Remarks

 12:40-12:50

Video Greeting by John Callahan, Ellison's Literary Executor

 12:50-1:00

African Drumming by Sidick Cammara

 1:00-1:50      

Roundtable #1 Ellison the Person, Ellison the Oklahoman, Ellison Beyond

• Phyllis Bernard, Arnold Rampersad, and me

 2:00-2:50

Roundtable #2: Ellison the Writer

• Ken Warren, Adam Bradley, Eric Sundquist

 2:50-3:00

• Steven Tracy plays blues harmonica

 3:00-3:50

Roundtable 3: Ellison and the Arts

• Steven Tracy, Todd Bryant Weeks, Cheryl Wall

 4:00-5:00

Roundtable #4: What Ellison’s Work and Life Mean for Us Today

• Danielle Allen, Amrit Singh, Arnold Rampersad

The rest of the MELUS program is here. Today's Daily Oklahoman has a nice write-up about the conference here.  And here's an Oklahoman article on Deep Deuce, the center of the African American community in Oklahoma City in the 1920s and 1930s (and I guess running up to the 1960s).

Here is an audio file of my talk at the Ellison symposium.

Roth on Gender and Race in Antebellum America

I've already written about some of the books I'm looking forward to reading this spring, such as Robert Ferguson's Inferno: Anatomy of American Punishment and John W. Compton's The Evangelical Origins of the Living Constitution.  Both of those will be published by Harvard University Press in the spring.  I now want to branch out to Cambridge University Press' spring list and talk about Sarah N. Roth's expansive volume, Gender and Race in Antebellum Popular Culture.  Cribbing now from the CUP website: 

In the decades leading to the Civil War, popular conceptions of African American men shifted dramatically. The savage slave featured in 1830s' novels and stories gave way by the 1850s to the less-threatening humble black martyr. This radical reshaping of black masculinity in American culture occurred at the same time that the reading and writing of popular narratives were emerging as largely feminine enterprises. In a society where women wielded little official power, white female authors exalted white femininity, using narrative forms such as autobiographies, novels, short stories, visual images, and plays, by stressing differences that made white women appear superior to male slaves. This book argues that white women, as creators and consumers of popular culture media, played a pivotal role in the demasculinization of black men during the antebellum period, and consequently had a vital impact on the political landscape of antebellum and Civil War–era America through their powerful influence on popular culture.

I had the chance to read an earlier draft of this book and I have to say that I'm really excited to see the final version.  She talks about a lot of literature that I'd never heard of -- including some outrageously proslavery science fiction and some other really obscure work.  This will expand dramatically the sense of antebellum fictional literature.  Though Roth's interest is largely in the fictional literature of both the anti-slavery and the pro-slavery sides, I think the dramatically changing images of men of African descent can be very readily and profitably applied to the judiciary.  (The short version here is that in the 1820s/1830s enslaved men were depicted as savages by both anti-slavery and proslavery literature.  That shifted in the 1840s and 1850s as abolitionists depicted enslaved men (and other men of African descent) as people deserving citizenship.  The proslavery forces responded to that critique by accepting -- largely -- that men of African descent were not savages.  The proslavery forces replaced that with an image of enslaved people generally as happy and child-like, not vicious and rebellious.)

What interests me is that this framework correlates with what was happening in state legislatures and also in the judiciary.  I want to look closely at cases where judges discuss slaves' character -- such as cases involving torts by slaves against white people and against each other, cases invovling slaves' rights to freedom following travel in free states and because of the wills of their owners, and even criminal prosecutions.  Based on some as yet unscientific looks at judicial opinions I think that southern judges were talking in similar terms to Roth's subjects about slave personality over the period 1830 to the mid-1850s.  (And I think this follows, generally, academic thought, too.  On this I'm going to have a lot more to say right soon.)  But one thing that I notice in particular is that as the Civil War approached -- like in the late 1850s -- southern judges were talking again in dramatic terms about men of African decsent as savages.  That is, as they prepared for war the talk turned -- unsurprisingly -- to enslaved men as savages who had the power to wreck havoc and maybe even destroy the white slave-owning south.  Justice Harris' viciously proslavery opinion in Mitchell v. Wells in 1859 is an example of this.  I'd like to write an essay about this once the book comes out, because I think this is a very good way of thinking about the sine curve of proslavery southern thought, 1830 to 1860, especially in the judiciary.

But that's dealing really with only a part of Roth's book; the majority of it is focused on the depiction of enslaved men in antislavery literature.  One thing that I like about this -- and I should also say I find bold (or maybe brave is a better word?!) -- is the sense that white women were not just gauges of changing attitudes towards enslaved men, but their widely-read literature helped change the dominant image of them.  That is, white women in particular helped free enslaved men.  This is certainly true to some extent -- Harriet Beecher Stowe is a key person here.  (I've written some about her assessment of jurisprudence and I think it a fairly easily supported case that she not only critiqued law but helped change attitudes towards it.  Caleb Smith's written about this too, of late.)  The key question is just how much the independent variable of antislavery fictional literature produced by white women contributed to the the multiple regression equation that explains the huge change in our nation's attitudes towards enslaved people (and men in particular).  On this I suspect there will be a very lively debate coming soon to the history journals.

And with that I'll say happy new year!

The illustration is a print of the Nat Turner rebellion, which is from the early era of Roth's study, when enslaved men were depicted as savages.

Update: As of July 2015 I've posted an essay review of Roth, which uses her framework to view how southern judges drew upon changing images of enslaved people from the 1830s to the late 1850s.

And here's a link to the review, which appeared in the November 2015 issue of the Texas Law Review.