Below is footage of a panel discussion between Justice Stephen Breyer, Professor Martha Nussbaum, Judge Richard Posner, and Professor Richard Strier that took place at the University of Chicago in 2009. The subject of the discussion is “Shakespeare and the Law,” and the purpose of the panel was to counteract what was perceived as growing complacency and unoriginality in the law-and-literature movement. That these four figures are on the same panel is reason enough to watch the video.
This review originally appeared here in The Independent Review.
“Television rots your brain.” That’s a refrain many of us grew up hearing, but it isn’t true. So suggests Paul Cantor in The Invisible Hand in Popular Culture, his second book about American film and television.
Cantor has become a celebrity within libertarian circles. He is Clifton Waller Barrett Professor of English and Comparative Literature at the University of Virginia and recently became a visiting professor at his alma mater, Harvard University. What’s remarkable about his appointment at Harvard is that it is in the Department of Government, not the Department of English. That doesn’t surprise those of us familiar with his breadth of knowledge and range of interests.
Recognized as an interdisciplinary scholar, Cantor attended Ludwig von Mises’s seminars in New York City before establishing himself as an expert on Shakespeare. Besides publishing extensively on literature of various genres and periods, he has been a tireless advocate for Austrian economics, even though Marxist theories and their materialist offshoots dominate his field. In 1992, the Mises Institute awarded Cantor the Ludwig von Mises Prize for Scholarship in Austrian Economics, and his work at the intersection of economics and literature resulted in Literature and the Economics of Liberty (Auburn, Ala.: Ludwig von Mises Institute, 2010), which he edited with Stephen Cox (while contributing nearly half of the book’s contents).
Like that work, The Invisible Hand in Popular Culture owes much to the theories of Friedrich Hayek, in particular the concept of spontaneous order. It is a reflection of spontaneous order that the most beloved films and television shows did not spring perfectly from the mind of some genius working in complete isolation. Rather, they emerged out of the complex interactions between producers and consumers and the collaborative efforts of scores of diligent workers. Viewer feedback facilitated modifications and improvements to films and television, which advanced in meliorative stages.
Hayek discusses spontaneous order to refute the belief that government intervention and central planning ought to force order onto the marketplace. Cantor discusses it to refute the belief that artistic creation stands outside of commercial exchange. Examining depictions of freedom and coercion in a wide variety of films and television shows, he highlights the disparity between elitist and populist understandings of American culture, which he links to “top-down” and “bottom-up” models of order, respectively. His position is that the popularity and artistic appeal of film and television appear to be proliferating despite the objections and insults levied by the cultural elite, who, it should be added with not a little irony, nonetheless probably watch a great deal of television.
Against the cultural elite and their promotion of patrician—and mostly European—standards for the arts, Cantor maintains that the marketplace enables creative and experimental forms of expression that aren’t so different from earlier aesthetic media such as the serialized novel or popular plays. He reminds us that “nineteenth century critics tended to look down on the novel as a popular form, thinking it hardly a form of literature at all,” and adds that it “was not viewed as authentic art, but rather as an impure form, filled with aesthetically extraneous elements whose only function is to please the public and sell copies” (p. 7). This once “vulgar” medium has lately been celebrated as one of the highest and most impressive categories of art. The form and content of great American novels—whether by Twain or Cooper or Salinger or Pynchon—should remind us that popular novels have been elevated as canonical even though they have rejected the standards and conventions that highbrow critics insisted were necessary for a work to constitute “literature.” Twain and Cooper recognized that highbrow presuppositions and expectations for novels derived from influential Europeans, so they set out to forge a uniquely American literature free from Old World constraints.
Because film and television are commercial, they allow ordinary Americans (as opposed to academics and the cultural elite, including and especially the neo-Marxists) to determine aesthetic standards and trends by indicating what does and does not interest them. Authors and television producers, in turn, become responsive and attuned to the demands of their consumers; they become, in short, entrepreneurs who must struggle against the status quo, defy the odds, and push the limits of artistic acceptability.
The elite disparage this process and advocate for aesthetic criteria divorced from the tastes and pleasures of the general public. As Cantor explains, “Elitists who profess to believe in democracy nevertheless have no faith in common people to make sound decisions on their own, even in a matter as simple as choosing the films and television shows they watch” (p. xiv). The elite would have film and television removed from the marketplace, but without the marketplace there would be no film or television.
Films and television shows might just become the masterpieces of the future; they might have already provided us with canonical “texts.” It is too early to say whether they have contributed substance to what Matthew Arnold called “the best that has been thought and said.” Greatness, after all, takes time to ascertain.
Orwell, Dr. Johnson, and Hume adhered to the “test of time” measure of greatness by which a work of art or literature is evaluated according to its ability to compete and survive in the literary marketplace over the course of generations. This measure requires the sustained consensus of consumers as opposed to the esoteric judgments of elite critics. A work’s ability to attract vast and diverse audiences and to do so long after its production is what makes the work great.
It might seem odd to think of Cantor’s subjects—South Park and The X-Files, for instance—alongside important literary works of the Western canon. And yet the groundlings who paid a penny to enter into the pit of the Globe Theatre, where they would stand and watch performances of Shakespeare’s plays, probably didn’t think they were witnessing greatness, either. Harold Bloom once said, “Cultural prophecy is always a mug’s game,” and Cantor is wise not to prophesy about the enduring merit of any films or television shows. Cantor’s point is not that the products of film and television will be considered masterpieces one day, only that they might be.
For the record, I consider it extremely unlikely that South Park or The X-Files will achieve classic status, but I would not extend that speculation to such films as Casablanca or the Star Wars trilogy. Cantor himself takes pains to distinguish first-rate works from run-of-the-mill entertainment by invoking “traditional criteria for artistic excellence” (p. xxii). We should not take him to mean that film and television are media superior to that which came before them; instead, he considers them as substantially similar to their artistic antecedents, except that their features signal an evolution in artistic preferences. The allure of art comes not from its alienation from popular culture, but from its ability to incorporate popular culture in ways that do not impede its power to speak beyond its moment.
To be sure, American film and television have produced an overwhelming amount of trash, but so did novel serialization. Not all novelists who published their work in contiguous installments in magazines and periodicals held the stature of Charles Dickens or Henry James or Herman Melville. Cantor points out that we forget about the thousands of bad novels from the Victorian era and extol only around one hundred novels from that period, which supposedly represents a zenith in culture. Among the thousands if not millions of films and television shows that have been produced over the past century, perhaps a few will rival the works of Dickens, James, and Melville.
If Cantor weren’t such a generous and careful scholar, he might have become the bête noire of sophisticates and lambasted in the pages of The New Criterion for his embrace of the purportedly lowbrow. His command of economics and literary history, however, has spared him from such condemnation and even gained him a devoted following. To do justice to his latest book would require a more comprehensive treatment of his arguments about the figure of the “maverick” in film and television or about the value of collaborative work and coauthorship in generating exceptional products. Yet these arguments demand more attention than a review can give.
The incomparable Cantor has blessed the libertarian movement with a literary voice. He has expanded the study of Austrian economics into the fields that need it most. He himself is a maverick, reading and writing industriously to break up the habits of thought and monopolies on ideology that mark literary scholarship. Would that we had more Cantors to show us how literature flowers when freedom flourishes. There is hope in the idea that artists can turn to the market to cultivate their talents and supply us with the arts we demand. No English department or cultural guardian can rob us of the entertainment that we enjoy.
This essay originally appeared here in The Freeman.
“The less government we have, the better.” So declared Ralph Waldo Emerson, a man not usually treated as a classical liberal. Yet this man—the Sage of Concord—held views that cannot be described as anything but classical liberal or libertarian.
None other than Cornel West, no friend of the free market, has said that “Emerson is neither a liberal nor a conservative and certainly not a socialist or even a civic republican. Rather he is a petit bourgeois libertarian, with at times anarchist tendencies and limited yet genuine democratic sentiments.” An abundance of evidence supports this view. Emerson was, after all, the man who extolled the “infinitude of the private man.” One need only look at one of Emerson’s most famous essays, “Self Reliance,” for evidence of his libertarianism.
“Self-Reliance” is perhaps the most exhilarating expression of individualism ever written, premised as it is on the idea that each of us possesses a degree of genius that can be realized through confidence, intuition, and nonconformity. “To believe your own thought, to believe that what is true for you in your private heart is true for all men,” Emerson proclaims, “that is genius.”
Genius, then, is a belief in the awesome power of the human mind and in its ability to divine truths that, although comprehended differently by each individual, are common to everyone. Not all genius, on this view, is necessarily or universally right, since genius is, by definition, a belief only, not a definite reality. Yet it is a belief that leads individuals to “trust thyself” and thereby to realize their fullest potential and to energize their most creative faculties. Such self-realization has a spiritual component insofar as “nothing is at last sacred but the integrity of your own mind” and “no law can be sacred to me but that of my nature.”
According to Emerson, genius precedes society and the State, which corrupt rather than clarify reasoning and which thwart rather than generate productivity. History shows that great minds have challenged the conventions and authority of society and the State and that “great works of art have no more affecting lesson for us than this. They teach us to abide by our spontaneous impression with good-humored inflexibility then most when the whole cry of voices is on the other side.” Accordingly, we ought to refuse to “capitulate to badges and names, to large societies and dead institutions.” We ought, that is, to be deliberate, nonconformist pursuers of truth rather than of mere apprehensions of truth prescribed for us by others. “Whoso would be a man,” Emerson says, “must be a noncomformist.”
For Emerson, as for Ayn Rand, rational agents act morally by pursuing their self-interests, including self-interests in the well-being of family, friends, and neighbors, who are known and tangible companions rather than abstract political concepts. In Emerson’s words, “The only right is what is after my constitution, the only wrong what is against it.” Or: “Few and mean as my gifts may be, I actually am, and do not need for my own assurance or the assurance of my fellows any secondary testimony.”
It is not that self-assurance equates with rightness, or that stubbornness is a virtue; it is that confidence in what one knows and believes is a condition precedent to achieving one’s goals. Failures are inevitable, as are setbacks; only by exerting one’s will may one overcome the failures and setbacks that are needed to achieve success.
If, as Emerson suggests, a “man is to carry himself in the presence of all opposition, as if everything were titular and ephemeral but he,” how should he treat the poor? Emerson supplies this answer:
Do not tell me, as a good man did to-day, of my obligation to put all poor men in good situations. Are they my poor? I tell thee, thou foolish philanthropist, that I grudge the dollar, the dime, the cent, I give to such men as do not belong to me and to whom I do not belong. There is a class of persons to whom by all spiritual affinity I am bought and sold; for them I will go to prison, if need be; but your miscellaneous popular charities; the education at college of fools; the building of meeting-houses to the vain end to which many now stand; alms to sots; and the thousandfold Relief Societies;—though I confess with shame I sometimes succumb and give the dollar, it is a wicked dollar which by and by I shall have the manhood to withhold.
These lines require qualification. Emerson is not damning philanthropy or charity categorically or unconditionally; after all, he will, he says, go to prison for certain individuals with whom he shares a special relationship. He is, instead, pointing out, with much exhibition, that one does not act morally simply by giving away money without conviction or to subsidize irresponsible, unsustainable, or exploitative business activities. It is not moral to give away a little money that you do not care to part with, or to fund an abstract cause when you lack knowledge of, and have no stake in, its outcome. Only when you give money to people or causes with which you are familiar, and with whom or which you have something at stake, is your gift meaningful; and it is never moral to give for show or merely to please society. To give morally, you must mean to give morally—and have something to lose.
Emerson famously remarks that a “foolish consistency is the hobgoblin of little minds, adored by little statesmen and philosophers and divines.” Much ink has been spilled to explain (or explain away) these lines. I take them to mean, in context, that although servile flattery and showy sycophancy may gain a person recognition and popularity, they will not make that person moral or great but, instead, weak and dependent. There is no goodness or greatness in a consistency imposed from the outside and against one’s better judgment; many ideas and practices have been consistently bad and made worse by their very consistency. “With consistency,” therefore, as Emerson warns, “a great soul has simply nothing to do.”
Ludwig von Mises seems to have adopted the animating, affirming individualism of Emerson, and even, perhaps, Emerson’s dictum of nonconformity. Troping Emerson, Mises remarks that “literature is not conformism, but dissent.” “Those authors,” he adds, “who merely repeat what everybody approves and wants to hear are of no importance. What counts alone is the innovator, the dissenter, the harbinger of things unheard of, the man who rejects the traditional standards and aims at substituting new values and ideas for old ones.” This man does not mindlessly stand for society and the State and their compulsive institutions; he is “by necessity anti-authoritarian and anti-governmental, irreconcilably opposed to the immense majority of his contemporaries. He is precisely the author whose books the greater part of the public does not buy.” He is, in short, an Emersonian, as Mises himself was.
To be truly Emersonian, you may not accept the endorsements and propositions in this article as unconditional truth, but must, instead, read Emerson and Mises and Rand for yourself to see whether their individualism is alike in its affirmation of human agency resulting from inspirational nonconformity. If you do so with an inquiring seriousness, while trusting the integrity of your own impressions, you will, I suspect, arrive at the same conclusion I have reached.
There is an understandable and powerful tendency among libertarians to consider themselves part of a unit, a movement, a party, or a coalition, and of course it is fine and necessary to celebrate the ways in which economic freedom facilitates cooperation and harmony among groups or communities; nevertheless, there is also a danger in shutting down debate and in eliminating competition among different ideas, which is to say, a danger in groupthink or compromise, in treating the market as an undifferentiated mass divorced from the innumerable transactions of voluntarily acting agents. There is, too, the tendency to become what Emerson called a “retained attorney” who is able to recite talking points and to argue predictable “airs of opinion” without engaging the opposition in a meaningful debate.
Emerson teaches not only to follow your convictions but to engage and interact with others, lest your convictions be kept to yourself and deprived of any utility. It is the free play of competing ideas that filters the good from the bad; your ideas aren’t worth a lick until you’ve submitted them to the test of the marketplace.
“It is easy in the world,” Emerson reminds us, “to live after the world’s opinion; it is easy in solitude to live after our own; but the great man is he who in the midst of the crowd keeps with perfect sweetness the independence of solitude.” Let us stand together by standing alone.
“Terms of use,” also called “terms of service,” are agreements between website owners and users of the website. By consenting to the “terms of use,” a user manifests his or her assent to certain conditions in order to access the website; in some cases, accessing a website will itself constitute acquiescence to the restrictions and conditions explained in the “terms of use.” “Terms of use” may explain what will happen to someone who hacks into the website, may divest users of certain legal rights as a condition for use, or may detail the consequences of behaving or transacting in certain ways on the website. Social networks such as Facebook are notorious for frequently modifying their “terms of use,” and “terms of use” are often subject to criticism for their allegedly unfair contracting and bargaining practices and for concealing or obscuring information in shrinkwraps, browsewraps, and clickwraps.
A privacy policy is a disclosure regarding the information a website collects and how that information is used by the website owner. Not all websites have privacy policies, but privacy policies are required of websites directed at children. Websites containing health data for patients or banking and financial data for customers are also required to have and display privacy policies. A privacy policy discloses what personal information is gathered by the website and states whether, for instance, a website uses cookies or targeted advertising, and whether the data collected by the website is shared with third parties.
Unlike “terms of use” or privacy policies, acceptable use policies generally are between employers and employees and govern the ways in which employees and other authorized users handle websites or networks of the employer. The laws governing acceptable use policies are strict. For instance, acceptable use policies must be clear and made known to employees; they must also explain what sanctions are appropriate or applicable if the acceptable use policy is violated.
The field of premises liability has to do with the potential tort liability of a landholder or landowner for injuries or damages sustained on his property. Such liability is determined not by the legal status of the landholder or landowner, but by the legal status of the injured party. For example, if the injured party is a trespasser, then the landholder or landowner could not have owed the injured party a duty of reasonable care because the landholder or landowner did not know or have reason to know of the trespasser’s presence on his property. A “trespasser” is someone who, without the permission or consent of the landholder or landowner, enters or remains on the landholder’s or landowner’s property. We say that the landholder or landowner does not owe a duty to unforeseeable trespassers, even if the property possesses dangerous conditions, because we believe that people should not be held accountable for the behavior of others that cannot be known or reasonably discovered. If a reasonable person with ordinary intelligence could not infer the existence of Person X on the property, then that reasonable person cannot be made to suffer simply for acting reasonably; after all, we want to encourage reasonable behavior among acting agents within our society.
As with all areas of the law, there are exceptions to the rule that a landholder or landowner owes no duty to trespassers. One such exception is called the “attractive nuisance doctrine,” which maintains that a reasonable landholder or landowner ought to be aware that certain conditions on the property might draw trespassers onto the property. The classic example is a swimming pool that would seem attractive to children and, therefore, would likely lure children onto the property. Another exception involves the existence of paths or shortcuts on the property that might give rise to the reasonable expectation that trespassers will regularly use the paths or shortcuts and, hence, might also injure themselves because of the conditions of the property on or around the paths and shortcuts. In such a situation, a court may deem the landholder or landowner to have owed a duty to the reasonably foreseeable trespassers.
A “licensee” is another legal category of persons on the property of a landholder or landowner. Unlike trespassers, licensees enter or remain on the property of a landholder or landowner with the landholder’s or landowner’s express or implied consent. What distinguishes a “licensee” from an “invitee” (another legal status that will be discussed below) is the fact that the licensee tends to be on the property for his own benefit rather than for the benefit of the landholder or landowner. Examples of licensees include social guests who have entered on the property of another with the intent of visiting the landholder or landowner, who, let us say, is a neighbor. A landholder or landowner generally owes a licensee a duty of reasonable care with regard to activities undertaken on the property, as well as a duty to warn or make safe any dangerous conditions known to the landholder or landowner but not to the licensee. Because a licensee is on the landholder’s or landowner’s property by consent, but not by express invitation, we do not force landholders or landowners to use reasonable diligence to ascertain the existence of dangerous conditions on the property. The costs of holding landholders or landowners to such a high standard (time, money, and energy spent searching the property for conditions that may not exist for the benefit of people who may never enter the property, even if they have the permission to do so) outweigh the potential benefits (reducing the probability that a potential visitor would be injured on the property). Therefore, the duty of a landholder or landowner to a licensee is measured by a standard somewhere between those standards applicable to trespassers and invitees.
An “invitee” is a person having express permission to enter or remain on the property of the landholder or landowner for the benefit of the latter. An example might be a plumber or handyman who has been asked onto the property to perform some service for the landholder or landowner. Landholders and landowners owe a duty of reasonable care to invitees. Because the landholder or landowner is not only aware of the presence of an invitee on the property, but also the very cause of that presence (but for the landholder’s or landowner’s invitation, the invitee would not be on the property), we require the landholder or landowner to inspect the property and to make reasonable efforts to discover dangerous conditions on the property. We also require the landholder or landowner to make any dangerous conditions safe for the invitee.
These categories seem straightforward in theory but are often complicated in practice. What they tell us is that, in the workaday world, “duty” is not sacrosanct; it is contextual and subject to many interpretations depending on the facts at hand and the perceived relationship of the parties.
The Literary Lawyer: A Forum for the Legal and Literary Communities 