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Part Three: Review of Nathaniel Branden Issue of the Journal of Ayn Rand Studies

In America, American History, Arts & Letters, Book Reviews, Essays, Historicism, History, Humanities, liberal arts, Philosophy, Scholarship, Western Civilization, Western Philosophy on July 12, 2017 at 6:45 am

This post is the reproduction of portions of a series of pieces originally published at Atlas Society’s website.  The original series of posts is available here, here, here, and here.

Section II features autobiographical reflections on Branden by his friends and associates Roger E. Bissell, Mimi Reisel Gladstein, Tal Ben-Shahar, Deepak Sethi, and Michael E. Southern. Limited space for review necessitates that I roll my thoughts on these reflections into one sketch. Compressing several autobiographical accounts into one summative analysis does not mean the accounts are unimportant or uninteresting. In fact, they are among the most enthralling contributions to the collection—in particular, Southern’s highly detailed tribute that contains a wealth of insight and information.

But the appreciative tone, personal nature, and intimate recollections in this section are difficult to fully and justly convey as a secondhand report. I thus urge readers interested in Branden’s private friendships and relationships to consult this part of the collection for themselves. I hope that highlighting a few anecdotes will suffice to show the depth and quality of the stories involved.

In one, Bissell relates that, while he was in high school, at the suggestion of his band and choral teacher, he read an essay by Branden. He then read Atlas Shrugged. Testifying to the transformative power of these experiences, he claims that the two texts “irreversibly changed” his life. He suddenly knew he should pursue music, ideas, and writing rather than mathematics. Southern had a similar experience: He read Branden’s The Psychology of Self-Esteem, Breaking Free, and The Disowned Self, and immediately withdrew from graduate school and flew to California to meet Branden.

Bissell recalls an exchange in which Branden responded to a question about how effectively to promote Objectivism. The answer, Bissell says, was simple: “to be as rational and productive as you could be at whatever you most loved to do, and to let your success at that be your testimony to the worth of Objectivism’s principles.” Still recapping Branden’s response, Bissell adds that “Objectivism exists to help you live a good life, not to require you to sacrifice your one and only, precious, individual life to its furtherance.”

In another anecdote, Ben-Shahar recalls how Branden comforted him after the death of a friend in a plane crash. In yet another, Sethi remarks that Branden helped him, an immigrant, flourish in American culture by cultivating Sethi’s self-esteem. Later, Sethi and Branden used Braden’s self-esteem techniques on business leaders.

Southern, who also participated in such sessions, relates that they involved “a powerful mechanism for self-discovery,” namely an exercise called “sentence completions.” He tells the story of how Branden once called an agitated woman to the front of a room of 100 people to participate in sentence-completions. She discovered, at length and through many tears, that she had never properly mourned the death of her father, a heartbreaking revelation that jarred Southern to the point that he later raised concerns with Branden, who in turn applied the sentence-completion exercise on him. What happened next was surprising. Southern allowed himself “for the first time to voice . . . all the pain growing up without a father had caused me.”  “I was told throughout my childhood,” he recounts, “that I was better off without my father and continuously heard how much he had hurt those around him who loved him. And so I dutifully repressed the longing.” Southern thus realized firsthand the therapeutic benefits of Branden’s methods.

These moving portraits of Branden suggest that he valued friendships and mentorships. The contributors affectionately refer to him by his first name and dub him a “hero” and “my Aristotle.” Southern claims that Nathaniel and Devers Branden “saved years of my life.” Whatever else he accomplished, then, Branden clearly impacted the lives of those who knew him well. He satisfied felt needs and helped others take responsibility and achieve self-actualization.

Section III, the final section, will be the most trying for readers who, like me, lack training in clinical psychology—first because we have no background or abiding interest in the subject, and second because we have no expertise with which to evaluate the significance of these contributions to the field. Without knowing Branden’s importance or unimportance within professional circles, or whether his techniques and practices are rare or common, strange or normal, exemplary or bizarre, one has difficulty determining if this section represents a necessary corrective or merely wishful thinking. I get the feeling, though, that these contributions would not have appeared in a journal edited by professional clinical psychologists and that their value is therefore bound up in Branden’s significance as an historical figure.    

The essays featured here respond to a Branden-inspired sentence-completion prompt: “If Branden’s works were studied by more academic and clinical psychologists…..” The five contributors then finish—or were supposed to finish—the sentence by saying what would have happened had the condition been fulfilled. Fittingly, they each have backgrounds in psychology, but surprisingly they steer wide of their cue and answer a different question from the one posed.  For instance, Robert L. Campbell, the coeditor of the collection, offers what he calls a “memorial tribute” that has more to do with Branden’s uniqueness among psychologists than it does with some hypothetical readership of Branden’s work. It comes off like an encomium and partly a sympathetic memoir, except for the reserved, professional critique of Branden’s inability to bridge the gap between exploratory research and clinical practice.

Cautious neither to condemn nor celebrate Branden’s more peculiar methods, such as hypnosis or “energy therapy,” Campbell suggests that Branden’s career coincided with the rise in the prestige of clinical psychology. This temporal correspondence, however, did nothing to elevate Branden’s profile within the profession. In fact, Branden was, in Campbell’s words, merely “an occasional consumer” of psychological research who was accused of “pop psychology.” As Campbell does little to recover Branden’s reputation in this regard, or to mount a storied defense on his behalf, one wonders, only one essay into this section, whether Branden the practitioner should be written off as unserious or amateurish. Campbell tempers his vague criticisms with admiring praise and the attribution of his entire career to Branden’s influence. But the point of his essay is to portray Branden as an engaging and enthusiastic expositor of Rand’s ideas, not to evaluate Branden’s contributions to clinical psychology on their substantive merit.

Walter Foddis, a doctoral student in clinical psychology whose essay possesses the tone and style more typical of scientific writing, suggests that Branden’s work never gained academic recognition because he addressed a popular rather than a scholarly audience.  Foddis might have published his piece in a journal of clinical psychology because it is primarily about scholarly views of self-esteem with concluding remarks about the practical application of his argument in light of cognitive-behavioral theory. He reviews the relevant literature on self-esteem and traces its various treatments by researchers over time.

Branden is thus a mere stepping stone for Foddis to present his own model of self-esteem—in addition to a “qualitative and quantitative instrument” called the “Self-Esteem Sentence Completion Instrument” that can be employed in experimental studies with human subjects—which readers outside the field will be unequipped to measure and assess with proficiency or competence.

Foddis doesn’t tell us why Branden remains important to clinical psychology so much as he shows us through the working out of his own unique arguments and findings in which Branden plays a key role. Saying Branden is important to the field is not as convincing as demonstrating his importance by incorporating his ideas and research into novel studies and ongoing conversations. Of the contributions to this section, then, Foddis’s does the most to recover Branden’s professional reputation even though—or rather because—Branden is not the central figure. Perhaps inadvertently, Foddis, with his references to a pragmatist, William James, as a recognized authority, coupled with his passing mentions of “human fallibility and limitations,” reveals how much distance there is between scholarly consensus in the field of clinical psychology and the more abstract, less practical theories of Objectivism associated with Rand, who despised pragmatists and systems of thought premised on the putative restrictions and limitations of human intelligence.

Teresa I. Morales Gerbaud summarizes Branden’s theories rather than applying them as Foddis does. “Branden’s body of work on human psychology,” she pronounces, “exhibits a remarkably consistent thread of logical reasoning that shapes and defines critical ideas, including notions of the key role of self-esteem in human behavior.” She calls Branden’s work “pioneering,” “critical and compelling,” and “novel.” She praises his “visionary intellect,” “the authenticity of his method,” the “salience and importance” of his ideas, “the depth of [his] thoughtful words,” and his “carefully thought-out example” of the integration of conscious and unconscious modes of knowing. And she refers to the “deep gratitude for the joy and inspiration that his work has brought to my life.” These laudatory lines, even when accompanied by the contextualization of Branden’s ideas alongside those of other experts, do not prove Branden’s significance to his field. What they prove is that Gerbaud really likes Branden.

Whereas Foddis uses Branden’s work for practical and theoretical ends—as building blocks for original research—Gerbaud merely celebrates Branden, compliments his methods, and asserts his significance. Ironically, insisting on his greatness and importance without demonstrating the practical or theoretical value of his ideas may actually undermine Branden’s reputation. At a minimum, it makes him susceptible to accusations of the kind he leveled against Rand: that his popularity has more to do with the cult of personality and adoring loyalty than it does with the operative quality of his concepts.

Andrew Schwartz does more than Gerbaud to situate Branden’s innovations in their historical context. The most important of these were, he submits, Branden’s “theory of self-esteem” and “his clinical method of sentence completion”—elements of his work that receive regular and sustained treatment throughout this collection and that, according to Schwartz, were prefigured by the Austrian psychotherapist Alfred Adler. This chapter may lend credibility to Branden’s accomplishments, but the inexpert reader is unable to reach that conclusion with clarity or conviction.

Joel F. Wade’s descriptive essay functions as a “bookend” for this final section, corresponding as it does with Campbell’s opening essay in its approbatory approach and character. Like Campbell, Wade shares personal accounts of time spent with Branden and pays close attention to Devers Branden as well, who surely deserves the attention. Like Gerbaud, Wade has little negative to say about his friend and sometime collaborator. He privileges personality and anecdote over scientific validation of Branden’s working theories and clinical applications. Not that negativity is required, but critical distance and tempered critique add the kind of credibility that makes flattery appear well-earned.

It’s evident from a dispassionate reading that this section, however affectionate and endearing, will not establish or renew scientific interest in Branden among clinical psychologists. Its contents could have fallen in the earlier sections, or the second and third sections could have been collapsed into one, but in either case Foddis’s essay, a work of scholarship, would have seemed out of place.

The contributors to the third section represent a network of friends and associates, not a disinterested community of impartial researchers jealously guarding high academic standards and ensuring strict quality controls. They give Branden a pass. Those outside the field may appreciate the admiration of trained professionals who knew or followed Branden.  Yet even non-experts will recognize that clinical psychology as we know it will be virtually unchanged or unaffected by these eulogistic essays, which are worthwhile not because of what they reveal about clinical psychology, but because of what they reveal about Branden the man.

The soaring tone struck by most of the contributors to the final section would have been more fitting for the epilogue, although one doubts they would have matched the flair and sensitivity that characterizes the essay of Stephen D. Cox, a literary critic and English professor at the University of California in San Diego. Cox’s touching epilogue is principally about Branden’s literary labors and talents. He claims that he saw Branden “in a way in which, perhaps, nobody else saw him—chiefly as a craftsman, busy in a literary workshop.” It’s from this unique vantage that Cox shares his learned opinions. “Our relationship was almost entirely literary,” he muses, “almost entirely concerned with what is ‘beautiful’ in writing.”

The two men had their differences—one was a Christian, for instance, and the other an atheist—but they cultivated a relationship based on shared interests and a mutual love for the written word. They started off as pen pals—Branden having initiated the first contact—and quickly became members of a discussion group at Branden’s home. Then they met regularly, one-on-one, over lunch or dinner and talked about literature—everything from the structural composition of novels (Branden had been working on one) to diction and syntax and the romantic love triangle between three of Branden’s fictional characters. “I didn’t feel it was my role to question Nathaniel about the psychological motivation of his works,” Cox explains of this love triangle, which loosely resembles the complex relationship between Branden, Rand, and O’Connor. Voyeuristic types will, I’m confident, wish he had questioned Branden to elicit salacious details.  

While several characters in Branden’s novel appeared, to Cox, “to represent different aspects of Nathaniel himself,” Cox didn’t see autobiography. Rather, the novel was, in his view, about “the mistakes, and the maturity, that can come with age,” as well as the need “to discover one’s course in life, even after one experiences great intellectual, material, and social success.” Eventually conversations about this novel turned into scrutiny of a draft play involving the same plot and theme; it turns out Branden was something of a dramatist in the vein of Henrik Ibsen. In fact, Rand had once gifted him thirteen volumes of Ibsen’s plays, which Branden later gifted to Cox.  “I’m looking at them now—a princely gift,” Cox remarks of these keepsakes, and you can imagine him sitting by his computer gazing wistfully at his bookshelf.

The Branden of Cox’s rumination is witty, charming, considerate, and friendly. When Cox says that “I never saw Branden try to impress anyone,” he implies that Branden was impressive in spite of himself. In the end, perhaps the most profound and lasting compliment that could be paid Branden comes in one simple line: “He was a fine literary companion.”

No appraisal of this collection could go without mentioning the excellent work of the editors, Campbell and Chris Matthew Sciabarra. Along with Cox, Bissell, and Roderick T. Long, they have put together, at the end of the collection, what appears to be an exhaustive annotative bibliography of references to Branden to date. I’m not aware of any works about Branden that don’t appear on this list.  

Although I discussed Campbell in the context of his essay contribution, I saved my praise for his and Sciabarra’s editorial efforts for the end of this review—not just because I have so far focused chiefly on the content of the essays (and hence, in large part, on the authors of those essays), but also because I wanted commendation of the editors to remain fresh on readers’ minds by placing it at the end.

Editors receive too little acclaim for their grinding and painstaking intellectual exertions, from proofreading and organizing to sourcing and advising. Editing can be a thankless, time-consuming struggle with little monetary benefit or professional recognition. Campbell and Sciabbarra should be celebrated and congratulated for their significant, impressive work. They have accomplished what they set out to do: inaugurate a “critical reassessment” of Branden by providing his theories about Objectivism and his “eclectic clinical approach” with a wider audience. They demonstrate that Branden is an important figure in his own right, a man worthy of sustained attention and scholarly exploration.

If this collection inspires future studies of Branden, then Campbell’s and Sciabarra’s quiet industry will have paid off. And they will have enabled future knowledge about Objectivism—its principles, founders, and controversies—to multiply. The roots of such education may be bitter, but the fruit will, indeed, be sweet.

Part Two: Review of Nathaniel Branden Issue of the Journal of Ayn Rand Studies

In America, American History, Arts & Letters, Book Reviews, Books, Economics, Historicism, History, Humanities, liberal arts, Liberalism, Libertarianism, Philosophy, Scholarship, Western Civilization, Western Philosophy on July 5, 2017 at 6:45 am

This post is the reproduction of portions of a series of pieces originally published at Atlas Society’s website.  The original series of posts is available here, here, here, and here.

The inclusion of Branden’s lecture and question-answer session in this collection gives him a voice in his own commemoration.  Published here for the first time, and transcribed by Roger Bissell, the lecture was given to the California Institute for Applied Objectivism in 1996. Its tenor can be gleaned from the opening paragraph in which Branden compliments his audience for being “dedicated to the broad philosophical ideas of Objectivism, but not in a religiously constricted and independent-thinking-discouraging way.”

Here Branden echoes his implicit criticism of the ARI camp. Debates between the Branden-ARI factions go beyond the personal disagreements between Branden and Rand to a broader philosophical question: is it better, at the outset of an intellectual movement, to insist upon the purity of a set of ideas at the expense of its slower adoption or to engage in an open dialogue that allows for give-and-take?

This is not a subject that can be answered by labeling either side as “religionists” or “compromisers.” It’s a unique problem elevated to historical significance by the profundity and uniqueness of Objectivism. If Objectivism is the most exceptional philosophy to emerge in over two thousand years and one believes, as Objectivists do, that philosophy is the motive force of history, then the answer could reasonably impact the course of civilization itself. The stakes, in other words, are high for those involved.

The question-answer session thus raises an issue of great magnitude in the Rand-Branden divide: How should Objectivists relate to libertarians? The underlying debate is that, on one side, Rand and ARI reject the label “libertarian” or affiliations with libertarian groups (exceptions such as the Foundation for Economic Education and the Cato Institute exist) because they claim that self-identifying libertarians often embrace a sort of “libertarianism by any means,” foregoing philosophical foundations.

Rand and ARI have argued that because philosophy guides human thinking in all areas of life and constitutes a fundamental, salient force, it is unacceptable to categorize their beliefs under a name that permits just any possible philosophical argument for a political conclusion. Objectivism is not primarily an economic or political calculus but a philosophical system whereby the means by which one arrives at conclusions matters. Branden and others critical of Rand have argued that accepting the libertarian label is unobjectionable and better promotes the popularizing and engagement that Branden values. Disciples of Rand disagree to varying degrees.

Branden speaks about himself in the third person (“you had to know Nathaniel Branden or Barbara Branden, and you had to impress them sufficiently to get an introduction to Ayn Rand”) and with superlatives of the sort employed by the sitting President of the United States (“the wonderfully exciting opportunity to read,” “a very special world, which is very close to being incommunicable,” “it was a very intoxicatingly pleasant and enjoyable way to process experience,” “we are somehow participating in this marvelous, exciting and inspiring reality,” etc.).  

His accounts are fascinating; whether they’re entirely true is another matter. His portrayal of a dinner with Rand and O’Connor during which he articulated anxiety about the publication of Atlas Shrugged is telling, as is Leonard Peikoff’s announcement, on a separate occasion, that, as Branden puts it, “in six months of the publication of Atlas Shrugged, we’ll be living in an Objectivist society.” “Now,” says Branden of Peikoff’s comment, “we knew that this was excessive, and this couldn’t be true. . . . But what it also reflects is something of the highly excited, intoxicating mental state of the period.”

Stories like this help those of us who were not alive at the time develop a fuller sense of what these individuals were like. Branden and Rand and their followers set out to form an exclusive community and were often impatient with outsiders who didn’t understand their positions, or so Branden claims. He regrets that their tactic was first to insist on conformity before initiating dialogue with outsiders, rather than initiating dialogue with outsiders to recruit new adherents. “[I]t was very, very tempting to retreat into self-righteousness,” he reflects about his encounters with those who were not yet initiated into his manner of thinking. He also depicts the group—The Collective—as elevating Rand the person over her principles: “In those days, it was made abundantly clear to us that fighting for Objectivism meant fighting for Ayn Rand. Loyalty to Ayn Rand was an issue of the highest possible value in the hierarchy.”

Therein lies much of the controversy surrounding Branden and his legacy. These “fighting words” give the strong sense that battling for Objectivism meant battling for Rand. Those of us who were not present for the conversations, meetings, debates, and interactions of that time cannot speak to the extent to which this is true. However, the accusation seems at odds with Rand’s explicit statements enjoining those who studied her philosophy that thinking for themselves and making their own evaluations of every idea were the only rational means of ascertaining truth. She rejected arguments from authority, even or especially when she was the authority in question. Whether that was conveyed in her personal relationships, though, we cannot know. It is imaginable that someone with such a forceful personality, so certain in her beliefs and ideas, would be difficult to oppose and that the environment of The Collective may have made any but the most resilient participant demure in her presence.

Branden’s stories about Rand are almost invariably unflattering, which is understandable in the context of their personal conflict, but perhaps unproductive in maintaining his broader position of extolling her philosophy and even, in large part, her character. He argues for understanding her as “conflicted” and complex rather than saintly, but he hardly counterbalances his negative portrayals with anything positive. She is, in his renderings, almost universally cranky, rude, aggressive, and bitter—a figure who seems to have gained a following for her ideas despite her horrid persona.  

Moreover, he sometimes assumes a condescending tone towards those associated with her. He represents Peikoff and George Reisman, for instance, as being inextricably caught up in her world, coloring Peikoff as an emotional dependent and Reisman as a social hostage. In all cases, however, Branden remains the sound-minded individual who, if a bit naïve in his youth, learned the error of the Randian ways and parted with her. This attitude dismisses some independent and analytical minds as fragile or conformist. One could argue that Branden’s characterizations of events weren’t wrong—again, we weren’t there and so don’t know for sure—but they also gloss over the fact that now, as older men of prominence, Peikoff and Reisman stand by her legacy and take her side in the split.

It’s clear that Branden detested what he portrays as a culture of loyalty that did not admit of dissent or disagreement and that, in his depiction at least, was unwilling to improve upon or revise Rand’s ideas, which some of her associates, again in his view, assumed to be without flaws. Branden locates the origin of this allegedly rigid groupthink in Rand’s early years. Defenders of Rand will disapprove of Branden’s characterization of this period as “the very dark side of the early years,” just as they may wince to hear Branden describe how her closest associates refused or hesitated to acknowledge their errors or ignorance about certain matters, as though they needed always to pretend to possess perfect knowledge. Although Branden criticized what he dubbed “Orthodox Objectivism,” of which he remained critical until the end, he was equally clear that he wished Objectivism to continue spreading, and he offered pointed suggestions about how to accomplish that, namely by gaining credibility and acceptance within the academy and finding publishers within mainstream peer-reviewed journals.

As much as I have hoped to avoid engaging the Rand-Branden split, it is a major part of Branden’s speech and the question-answer session deals with it. Given that Branden delivered the talk in 1996 and that, as he notes, he rarely spoke on Objectivism by then, one could take his comments as at least somewhat representative of his hierarchy of concerns on the subject. The talk and question-answer session reveal that his fallout with Rand remained a considerable part of his legacy and that he felt the need to defend himself by attacking Rand. That would explain why his answers can, at times, seem unfair to Rand. For example, asked why Rand supported Richard Nixon over George McGovern—rather than the Libertarian Party candidate John Hospers—Branden stated that she should’ve supported Hospers, that she was “uninformed” about libertarianism and political issues, and that she associated libertarianism with anarchism, which she despised. In truth, Rand had contempt for Nixon and a well-reasoned argument against Hospers, even citing his campaign views and the Libertarian Party’s platform. If I know this, then Branden certainly should, so his comment reads as if he’s giving her as little credit as possible and characterizing her as an angry zealot.

Whatever one thinks of Branden, there’s merit and perhaps a degree of honor in his hope that “there is a tremendous area of work that needs to be done, that will be done, … that is nowhere to be found in the Objectivist literature.” His disagreements with other Objectivists did not lead him to give up on Objectivism or abandon its central tenets. He remained ever devoted to this philosophy even if his commitments to knowledge and learning lost him friendships and widened the gulf between his ideas and those of other followers of Rand. It is worth asking whether Branden, despite his implicit discounting of the early years as too preoccupied with “fighting for Ayn Rand,” did not spend much of his remaining years fighting against Rand. Did his autobiographical writings and the writings of Barbara Branden on their relationships with Rand take up too much of his post-Rand career as a psychologist and philosophical thinker?

 

 

The American Bar Association Stifles Legal Education

In Academia, American History, Arts & Letters, Economics, History, Law, Law School on June 28, 2017 at 6:45 am

This piece originally appeared here at the Library of Law and Liberty.

The Accrediting Council on Education in Journalism and Mass Communications is a nonprofit accrediting agency for journalism programs. Bradley Hamm, the dean at Northwestern’s Medill School of Journalism, has called the council’s accreditation-review process “flawed,” “superficial,” “extremely time-consuming,” and “sort of a low bar.”

So he’s gotten out. Northwestern University has effectively terminated its relationship with the council, calmly embracing its new status as unaccredited.

The online journal Inside Higher Ed, which points out that the Graduate School of Journalism at the University of California, Berkeley, has done the same, quotes Dean Hamm as saying that, “as we near the 2020s, we expect far better than a 1990s-era accreditation organization that resists change—especially as education and careers in our field evolve rapidly.”

This is a tremendous blow—when two of the most prominent and celebrated journalism programs in the country refuse to acknowledge the authority and legitimacy of an accreditor, it’s tough for the accreditor to argue that the resistant institutions are merely upset about their ability to maintain accreditation. If other journalism schools are frustrated with the council’s obsolete standards, and its tendency to micromanage curricula, more of them will likely follow the example of Northwestern and Berkeley.

The social and financial costs of burdensome accreditation standards and procedures are even more pronounced in the field of law. Small businesses and Americans of modest income struggle to afford the high costs of hiring an attorney or litigating a case. Access to justice or quality representation is a constant concern within the legal profession.

Meanwhile, the American Bar Association, which remains the only accrediting body for law schools in the United States, regulates legal education in a way that drives up costs for law students, and for the consumers onto whom those costs are eventually projected.

The ABA restricts innovation by fixing the number of credit hours necessary for law students to graduate, effectively eliminating the possibility of a shorter program than the standard three years. It discourages law professors from honing their practical skills by narrowing the designation of “full-time” faculty to exclude those who maintain an ongoing remunerative relationship with a law firm or business. Its requirements regarding equipment and technology mean, in practice, that many schools are buying expensive computers and furnishing computer labs that students may never use.

ABA scrutiny of attrition rates has also contributed to a change in law-school culture and practices. There was a time when law schools could accept a high percentage of applicants who, as students, had to prove their competence in the classroom and stand or fall on their academic merit. Those who couldn’t cut it flunked out. They didn’t incur three years of debt only to take and retake a bar exam they weren’t equipped to pass.

The ABA position penalizing schools for high attrition—the result of a new interpretation of Standard 501(b) that prohibits law schools from admitting applicants who aren’t “capable” of completing a Juris Doctor or passing a bar exam—now arguably causes law schools to seek to retain students who can’t cut it. To that end, it encourages grade inflation and heavier use of student loans.

Law schools recently came under criticism for hiring their own graduates as a way to boost their post-graduation employment statistics. In response, the ABA instituted procedures to prevent the spread of misleading data. What seemed like a good-faith effort to enhance transparency and accountability has led, instead, to flawed incentives. Law schools have taken to promoting “JD-required” and “bar-passage-required” jobs to their graduates more strongly than corporate or financial positions that pay higher salaries but don’t require either a law license or bar membership.

If you graduated from law school today and became the CEO of a large, multinational company tomorrow, you would skew your school’s data in an unfavorable direction.

This changed emphasis neglects the realities of a marketplace in which the availability of traditional law jobs remains stagnant. To best serve their students, law schools should feel free to guide them toward alternative careers based in new technologies and businesses that would benefit from the knowledge and leadership that legal education supplies.

The ABA’s ministrations also help drive up the price of legal education, forcing law schools to direct time and resources toward ABA compliance that could be put toward student scholarships or improving the curriculum. And a higher price tag means that members of the legal profession, and young lawyers in particular, in order to pay debts or compensate for opportunity costs incurred during law school, pass these costs on to consumers in the form of higher legal fees.

The bottom line is that, when a substantial portion of the population cannot afford to hire an attorney, or at least feels that way, the legal system has failed in its chief purpose: to ensure that wrongs are righted and justice is served.

Unintended harm, however, is nothing new for the ABA.

Founded in 1878 by “leading” or “representative” lawyers who were selected by an elite group of men from states along the East Coast, the ABA sought to nationalize professional and ethical standards with these goals: “to advance the science of jurisprudence, promote the administration of justice and uniformity of legislation throughout the Union, uphold the honor of the profession of the law, and encourage cordial intercourse among the members.”[1]

Noble ambitions indeed. But the organization soon became a fraternal guild that sought to enforce rigid barriers to entry into the legal profession with the assistance of independent bar associations in the 50 states. “For many years,” explained legal scholar Philip J. Wickser in the 1920s, “the Association fought hard to retain its selective quality, and not to forget that a relatively small homogenous group could get the most done.”[2]

The ABA officially excluded African Americans for 66 years, according to Susan D. Carle in her 2013 book Defining the Struggle. Its ouster of three African Americans in 1912 on the basis of their skin color drew protests from the newly founded National Association for the Advancement of Colored People. That same year, the ABA issued a resolution stating that “it has never been contemplated that members of the colored race should become members of this Association.”[3]

Although the ABA has since sought to make up for its racist past by increasing the ethnic diversity of its membership, creating a commission on sexual orientation and gender identity, and strengthening its rules prohibiting racial harassment or discrimination, part of its purpose historically has been to regulate entry into the profession and decrease the number of low-income, immigrant, and minority lawyers[4] (though in recent decades such decreases have been a consequence, not the purpose, of ABA regulation).

No matter how hard the ABA attempts to distance itself from its origins, it cannot escape the fact that its function is to exclude certain groups from membership to enable a monopoly on legal services by its members. Such exclusion has tended to fall along racial lines. One law professor has thus complained that “all of the ABA’s diversity efforts ring hollow” because the ABA “caused blacks to be excluded from the profession in the first place.”[5]

Given its racially charged beginnings and racially dividing regulations and standards, it’s surprising that the ABA is still considering revising Standard 316, which addresses the bar-passage rates of law-school graduates. Compliance with the revised standard would require bar passage by 75 percent of the graduates of a currently approved (as opposed to provisionally approved) law school in at least three of the last five years.[6]

A few months ago, Lawrence P. Nolan, the president of the State Bar of Michigan, penned a letter to ABA delegates to point out, among other things, that minority organizations—and even the ABA Council for Racial and Ethnic Diversity in the Educational Pipeline—were against the proposed revision to Standard 316. “The collective judgment of those committed to [reducing] the . . . racial disparity in the legal profession,” he said, “is reflected in their unanimous opposition to this amendment.”

Nolan also stated that the ABA’s own data “confirms the large gap for African-American bar passage rates, which are lower than overall rates, particularly on the multiple-choice test.” Statistics cited by Nolan show that African Americans pass the bar exam at a lower rate than whites and that the percentage of white repeat takers of the bar exam is 3.2 percent whereas the figure for black repeat takers is 14.1 percent. If those statistics are accurate and predictive, then the effects of the revised standard would fall disproportionately on those schools with higher numbers of African American students.

Supporters of the proposed revision portray law schools as exploiters of racial minorities that have been admitting underqualified applicants to make up for diminishing admissions applications. There’s truth to this characterization. Law-school admissions standards have dropped precipitously as enrollment has declined.

But why trust the organization that caused or at least exacerbated many of these problems to fix them? We need imagination and rational risk to move forward constructively and creatively. Proposals as wide-ranging as abolishing the bar exam or developing non-JD curricula in law schools ought to be seriously considered. Another idea would be to strip the ABA of its accrediting powers altogether, something the U.S. Department of Education might consider.

During this moment of social unrest, when rancorous partisanship seems to permeate all fields of discourse, faculty and administration all along the political spectrum can agree on one thing: The ABA is systematically harming ethnic minorities and becoming as obsolete as its counterpart in journalism education.

It may well be time for top-ranked law schools to follow in the footsteps of the J-schools at Northwestern and Berkeley. Only if several leading law schools joined to seek an end to the ABA’s accrediting function would this reform stand a chance. Law schools with lower rankings may lack the credibility to resist, given their stake in the accreditation process. Their administrators already, in my view, avoid speaking out against the ABA due to their reasonable fear of retaliation. (My own trepidation almost prevented this piece from reaching print.)

Granted, it might give the law schools pause that in most states, admission to the bar (by authority of the state bar or the state supreme court) is conditioned on holding a degree from an ABA-accredited law school. Still, the journalism-school revolt demonstrates that a mass rebuff of the ABA’s accrediting legitimacy is neither extreme nor absurd. Prominent law schools are already experimenting in other areas, such as considering GRE scores (rather than just LSAT scores) for admissions purposes. Such experimentation is all to the good.

The legal profession is, in the words of Benjamin Barton, “facing a major retrenchment” and remains mired in outmoded tasks that artificial intelligence may replace. It’s stuck in a bygone period when lawyers felt threatened by entrepreneurial upstarts who breached longstanding protocols such as prohibitions on advertising or contingency fees. It’s time for an energetic rethinking of the goals and purpose of legal education and the legal profession.

Ending ABA accreditation authority would be an exciting first step. It would enable administrators to reallocate resources to lower the costs of legal education and, consequently, of legal services. And it would allow them to focus on their true mission: not lining the pockets of accreditation agencies and bureaucratic guilds but educating prospective lawyers and bringing justice and order to rich and poor alike.

The views expressed herein are solely the author’s, and do not reflect those of Faulkner University’s Thomas Goode Jones School of Law or its Blackstone and Burke Center.

 

[1] Simeon E. Baldwin, “The Founding of the American Bar Association,” The American Bar Association Journal 3 (1917), 659-62, 695.

[2] Philip J. Wickser, “Bar Associations,” Cornell Law Quarterly 15 (1929-30), 398.

[3] Susan D. Carle, Defining the Struggle: National Organizing for Racial Justice, 1880-1915 (Oxford University Press, 2013), pp. 281-82, and 541-43.

[4] Jerold S. Auerbach, Unequal Justice: Lawyers and Social Change in Modern America (Oxford University Press, 1976), p. 65: “During the second decade of the twentieth century the American Bar Association began to assert itself aggressively as a professional protective organization. Its purpose was twofold: to preserve its own exclusiveness (and the status that accompanied its preservation) and to exert professional leverage upon the political process.” For admission of minorities, see Auerbach, pp. 65-66, 71, 107, 131, 159-60, 200, 216, and 295.

[5] George B. Shepherd, “No African-American Lawyers Allowed: The Inefficient Racism of the ABA’s Accreditation of Law Schools,” Journal of Legal Education 53 (2003), 104.

[6] The ABA Council and the Accreditation Committee of the Section of Legal Education and Admissions to the Bar operate independently of the ABA pursuant to regulations of the U.S. Department of Education, which recognizes these bodies as authorized accreditors. For ease of reference and understanding, and because of the connection between these accrediting bodies and the ABA, the taxonomy I have adopted simply lumps these bodies together under the heading of “ABA.”

Book Review: “Historic Alabama Courthouses,” by Delos Hughes

In American History, Arts & Letters, Book Reviews, Books, History, Humanities, Law, Southern History on April 12, 2017 at 6:45 am

Julia Jordan Weller, a native of Montgomery, Alabama, attended Hollins University and obtained her undergraduate degree from the University of Alabama in 1985. She obtained her Juris Doctorate from Cumberland School of Law in 1988. Since that time, she has served as a law clerk to the Honorable Joel F. Dubina on both the United States District Court and the United States Eleventh Circuit Court of Appeals. Mrs. Weller practiced law with firms in both Montgomery and Birmingham where, in addition to handling litigation throughout the State, she also served as an Administrative Law Judge for the State Health Planning and Development Agency. In 1998, Mrs. Weller became an Assistant United States Attorney, eventually becoming the First Assistant United States Attorney (Chief of Staff) in the Middle District of Alabama. She later worked as the Chief Administrative Law Judge for the State Personnel Board and thereafter as the Chief Administrative Law Judge for the Office of Attorney General. She became the Clerk of the Supreme Court of Alabama on July 16, 2013. Mrs. Weller is married to Christopher W. Weller, Sr., a shareholder with the law firm of Capell and Howard in Montgomery, Alabama. The Wellers have two children, Christopher Weller, Jr. and Florence Weller, and attend St. Peter Catholic Church.

If the walls of courthouses could talk, they would whisper the experiences of those who worked, litigated, and governed over the last 150 years or more.  Some courtrooms have evolved from open air forums, such as those held in Wedowee until 1836, to some of the grand domed buildings that seem to radiate the authority of the court.

Author Delos Hughes escorts the reader through a journey stopping in each Alabama County, beginning from the outset of Alabama’s judicial history.  Hughes explores Alabama’s earliest architectural expressions of justice, ranging from log cabins to Neoclassical Revival.  He notes that courthouses often reflect through their architecture a sense of presence and the ideals of the communities which built them. These elements not only demonstrate the artistic preferences of the county, but also tell stories about the county’s politics, economies, class structures, and ethnic backgrounds.

Hughes writes, for instance, that the courthouse built in Baldwin County in Daphne, Alabama, and designed by the famous architects Frank Lockwood and Benjamin Bosworth Smith, “conveyed permanence, stability, seriousness—just the message that Bay Minette wanted to convey.”  Of the Bibb County 1902 Courthouse, Hughes states, “the building conveys an impression for ecclesiastical rather than governmental or administrative or political.”

Interestingly, in Centre, Alabama, in Cherokee County, fire consumed two courthouses: one in 1882 and, later, the successor that was built in 1895.  Thus, “befitting a facility so prone to burning, the commanding architectural feature” of the 1896 Cherokee County Courthouse included a bell tower to alert citizens of any further fire dangers.

A photograph of the Wilcox County Courthouse of 1859 depicts a grand Greek Revival building with fluted Doric columns and exterior iron stairs to the second floor courtroom.  In contrast, a simple white board fence surrounds the majestic building, apparently for the practical purpose of keeping the livestock, which roamed freely through the streets, from wandering into the courthouse.  The image creates an ironic contrast between the community ideals and perceptions against the backdrop of the county’s practical economic realities.

With witty dialogue and interesting insight, this collection of history and photographs is a must for any individual involved in litigation throughout this great state.  Having handled litigation in nearly every county, I can say what a treasure this book would have been in my earlier years of law practice.

Hughes’s book provides a new set of viewing glasses to observe the personality and expressions fused into Alabama’s earliest judicial architecture.  These historical backdrops shed both a serious and whimsical light on the buildings, some of which still exist, as well as on the tales of Alabamians—their roots, experiences and growth. Historic Alabama Courthouses is a delightful necessity for any Alabama lawyer and a guilty pleasure for lovers of the courtroom.

Donald Trump, the Cowboy

In America, American History, Art, Arts & Letters, Conservatism, Film, History, Humanities, Literary Theory & Criticism, Philosophy, Politics on March 22, 2017 at 6:59 am

Allen Mendenhall

This article originally appeared here at The Daily Caller. 

Americans love film, a medium we’ve popularized across the globe. We’re home to Hollywood; we pioneered cinema as an industry and an art form.

Film has enabled cultural memory and iconography to survive in residual form from generation to generation. Since early motion pictures, images that flashed across our screens have become part of our communicative coding, manifesting themselves in political discourse in subtle, unexpected ways.

Perhaps the most foundational figure in American cinema is the nomadic cowboy, that romantic hero of the frontier whose moral ambiguity thrills and troubles us. Frederick Jackson Turner announced his frontier thesis in 1893, drawing attention to the rugged individualism and westward expansion that characterized American liberty and differentiated the New World from Europe.

The masculine figure of the cowboy embodies this thesis. He’s an archetype. Garbed in buckskins and spurs, he conquers the wilderness and the Indians, exacting ruthless revenge on his foes and exercising his menacing skills to achieve justice, at least his notion of it.

But he has a dark side. One is never certain whether he’s a bad guy with good qualities or a good guy with bad qualities. He can be, like Wyatt Earp, both lawman and outlaw, and his very presence creates dysfunction, jeopardizing the harmony of the community and the stability of the nuclear family. Even Shane, the most impeccable of cowboys, endangers the affection between Joe Starrett and his wife and risks undermining the sense of corporate community he’s fighting to uphold.

The cowboy is a paradox: heroic yet savage, mannered yet unruly, tamed yet wild, gentle yet violent. He’s a beloved and mysterious loner, reckless in the pursuit of civilized life. There’s dissonance in his desire to establish domestic settlement and close the frontier while exploring nature, roaming the open range, and maintaining noble independence. With his code of honor, he’s the American version of the brave and chivalrous knight who rides off on quests and adventures.

Former presidents have sought to embed themselves in the Western genre, troping the image and lore of the cowboy. President Reagan, a friend of John Wayne, acted in Westerns and was known to clad himself in big shiny belt buckles and Stetson hats. George W. Bush played up his Texas swagger, wore boots and shot rifles, vacationed on his ranch and applied the pioneering spirit to foreign affairs.

Unlike his immediate predecessor, Donald Trump is a cowboy, or the semiotic mutation of one. That’s why he appeals to so many Americans. This may come as a surprise. He might seem more like the cowboy’s close cousin, the urban gangster. After all, he’s a New York casino and real-estate magnate who wears dark suits and bright ties and displays his money and wealth. He’s gaudy and flashy like Tony Montana, and a wealthy patriarch like Vito Corleone. He’s charismatic and travels in groups, and there’s a noirish quality to his messaging, which the media keeps calling “dark.”

Yet his narrative arc is not one of dramatic rise and inevitable fall.  Nor is he an immigrant figure with ties to drugs and organized crime. He is, instead, the brawling gunslinger, marked by vanity and bravado, irresponsible in his boastfulness. He speaks for a community not his own, glamorizing his triumphs and victories. His bombast and boisterousness have an inexplicably moral feel, as if he represents more than himself and speaks for others—the common man, the forgotten man, the ranchers and laborers.

The cowboy stands up to cattle-baron cronies, just as Trump takes on leading news outlets and the so-called “establishment.” He portrays himself as an outmatched Will Kane, ready to confront gangs of rivals against all odds—as he did in the election when he knocked off his primary opponents and then the presumptive Democratic president, proving an entire class of pollsters and the commentariat wrong.

Like Old Rough and Ready, Trump is vague on political positions and policy prescriptions. His supporters speak of the “Trump Train,” a phrase suggestive of the nineteenth-century railroad, which dominated American industry. His derogatory comments about Mexicans and immigrants are alike in kind if not degree to those of Ethan Edwards regarding the Comanche. Think John Wayne in The Searchers.

Trump is married, but not domesticated. He blurs the lines between truth and embellishment, decrying and creating fake news in the same breath. He harnesses the power of the maxim from The Man Who Shot Liberty Valence: “When the legend becomes fact, print the legend.”

Trump’s high-soaring rhetoric is reminiscent of an earlier moment in American history when there were, in the American psyche, clear winners and losers. The slightest insult can cause him to seek revenge that’s both personal and heedless, having something of the showdown about it.

He’s a tweet-dueler. The Internet being the new frontier, in an age when you can’t get away with gratuitous killing, he trades characters, not bullets. And he’s quick on the draw, able to unload rounds of tweets in mere seconds.

Like William Munny, the aging anti-hero in Clint Eastwood’s Unforgiven, Trump doesn’t drink. His infatuation with Mexico and insistence on building a wall across the Southern border recall the boundary disputes of a bygone era. Imagine Santa Anna and the Republic of Texas as historical antecedents to current border anxieties.

Trump’s carefully orchestrated press conferences, campaign rallies, and inaugural address suggest that he demands a spectacle that’s as visually magnificent as a John Ford film. He fancies the long-shot panorama with American flags in the background. He flies in and out of small towns, ever the roving myth, and he doesn’t have a single place to call home.

During a period of economic contraction, aging population, shifting demographics, and declining American power, ordinary Americans understandably look to a time of territorial growth, when heroes defeated “the Other,” solved their problems, and overcame adversity. With the advent of Google Maps and Street View, folks long for a past of exploration and geographic mystery—when there were borders between known and unknown lands. Trump talks about Greatness. Speaking in superlatives, he refers to things as Amazing, Huge, Tremendous, and Wonderful. His vision for America is as wide in scope as the Western landscape.

Trump is a construct of the mythic figure we’ve come to expect from viewing Western symbols, plots, and motifs. He reminds us of the William Faulkner line: “The past is never dead; it’s not even past.” The cowboy is indeed alive and well, even if he’s a sign of the past. He comes in the improbable, astonishing form of Donald Trump. And he wants to win.

 

The American Nietzsche? Fate and Power in Oliver Wendell Holmes Jr.’s Pragmatism

In America, American History, American Literature, Arts & Letters, Creativity, Emerson, Essays, History, Humanities, Jurisprudence, Law, Law-and-Literature, liberal arts, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Rhetoric, Scholarship, Western Philosophy on February 15, 2017 at 6:45 am

Allen Mendenhall

Seth Vannatta of Morgan State University recently coauthored a piece with me on Friedrich Nietzsche’s influence on U.S. Supreme Court Justice Oliver Wendell Holmes Jr.  The piece appeared in the fall 2016 issue of UMKC Law Review.

Richard Posner is one of the few legal minds to have noticed the affinity between the philosophies of Holmes and Nietzsche. Dr. Vannatta and I hope to expand the circles of interest in this topic.

Our article demonstrates how Holmes’s pragmatism both comports with and departs from Nietzsche’s existentialism. Holmes’s pragmatism shares with Nietzsche’s existentialism a commitment to skepticism, perspectivalism, experiential knowledge, and aesthetics, as well as an abiding awareness of the problematic nature of truth and the fallibility of the human mind.

We suggest that Holmes was familiar with Nietzsche’s writings and that the two thinkers turned away from Christian ethics and glorified the life struggle in distinctly evolutionary terms. Both men celebrated the individual capacity to exercise the will for purposes of personal autonomy, greatness, and creative or aesthetic achievement. Nietzsche, however, did not share Holmes’s belief in the pragmatic potential of meliorism, which marks the distinction between their notions of fate.

The thinking of Nietzsche and Holmes converges in the person of Ralph Waldo Emerson, who was a manifest influence on both Holmes and Nietzsche and whose thinking on fate and power, inflected as it is by aesthetic pragmatism, shapes our understanding not only of Holmes and Nietzsche in isolation but also of Holmes and Nietzsche as paired, ambitious philosophers concerned about the role of fate and power in human activity.

The article is available for download here in the SSRN database for those who are interested in reading more about this curious relationship between two intellectuals whose ideas shaped society during the 20th century.

Our Real Constitution—And What Happened to It

In American History, Arts & Letters, Book Reviews, Books, Conservatism, History, Humanities, Jurisprudence, Law, liberal arts, Philosophy, Politics, Scholarship, Western Philosophy on January 25, 2017 at 6:45 am

Allen Mendenhall

This review originally appeared here in The University Bookman.

Conservatism lost a giant when George W. Carey passed away in 2013. Thanks to Bruce Frohnen, his longtime friend, we’re able to hear anew Carey’s prudent admonitions in these strange and interesting times.

Before his death, Carey completed drafts of chapters on progressivism and progressive constitutional reform that later became substantial portions of two chapters in Constitutional Morality and the Rise of Quasi-Law, the book that Frohnen has now completed. The final product is an impressively collaborative effort that substantiates the idea of constitutional morality, which Carey spent years developing.

The two men had planned to split the chapters in half. Having few disagreements between them, they reserved the right to approve and edit each other’s contributions. Carey’s untimely passing changed these plans. To honor his friend, Frohnen consulted Carey’s work carefully, downplaying his own more “antifederalist” positions to accommodate Carey’s more federalist leanings. If Jefferson and Hamilton would have agreed that the size and scope of the American government has become dangerous and unmanageable, then it’s no surprise that Frohnen and Carey found common ground.

Constitutional morality denotes “the felt duty of government officials … to abide by the restrictions and imperatives imposed on them by a constitution.” It contemplates the “unwritten constitution,” a concept central to Frohnen and Carey’s argument that’s drawn from Russell Kirk and Orestes Brownson, both of whom Frohnen in particular has interpreted thoughtfully and skilfully. Kirk defined the unwritten constitution as “the body of institutions, customs, manners, conventions, and voluntary associations which may not even be mentioned in the formal constitution, but which nevertheless form the fabric of social reality and sustain the formal constitution.” To maintain their authority and gain general acceptance in a community, written constitutions and positive laws must reflect the norms and values of the people they bind. Frohnen and Carey’s narrative is about how quasi-law in the form of executive decree and the administrative state have become divorced from the people they govern.

The narrative runs something like this. Rule by executive command and administrative agencies has resulted in a decline of the rule of law in the United States. Odd, extratextual interpretations of the United States Constitution have dislocated its content from the common understandings of reasonably prudent Americans. The Progressive Era facilitated a shift in our approach to law that was qualitatively different from the teachings of checks-and-balances, decentralization, separation-of-powers, and other such doctrines alive in the minds of our Founders, even those like Hamilton and the young Madison (as against the later Madison) who favored a strong national government. Consequently, we have found ourselves in a crisis of constitutional morality, there being little institutional and systemic accountability to curb the broad powers of bureaucracy, reckless and unelected federal judges, a delegating congress beholden to lobbyists and corporations, and the expansion of executive privilege, prerogative, and patronage.

Political rhetoric of limited government, common among Republican leaders, does not square with the manifest reality of the ever-growing managerial state. Heated discourse alone won’t suffice to roll back federal programs and agencies. “What is required,” say Frohnen and Carey, “is a retrenchment of the federal government into a much smaller but more detailed and legalistic form that allows more actions to be taken by other institutions, be they states, localities, or associations within civil society.” In short, these men call for devolution and subsidiarity. They make the case for localized control based on clear rules that are consistent with common norms and expressed in a shared idiom.

Championing the rule of law involves the recognition that, although morality does or should underpin laws, “we cannot use the tool of law to achieve perfect virtue, or freedom, or any other moral good.” Without denying the importance or reality of natural law, which is antecedent to human promulgation, Frohnen and Carey approach it cautiously, stating that it “is not a rigid code demanding that human law force all human beings into a straightjacket of specific individual conduct.” Seemingly skeptical of grand schemes for the magnificent systematization and organization of natural-law principles, they humbly submit that humans “can only do our best to develop practical lawmaking and interpreting virtues such that the laws we make will be efficacious in spelling out and enforcing duties in such a way as perhaps to encourage people to pursue virtue.” This nomocratic mode of thinking recalls Hume, Burke, Oakeshott, Kirk, and Hayek with its awareness of the limitations of human knowledge and its attention to the historical, institutional, and cultural embeddedness of standards and values.

If there is one take-home point from this book, it’s that government is not the instrument through which to facilitate the good, the true, or the beautiful. We should avoid the “new dispensation” that consists in “a government ruled not by formal structures and procedures but by the pursuit of putatively good policy through broad statements of programmatic goals and the exercise of broad discretionary power.” Disempowering the central government may be the obvious counter to this new dispensation, but we’ve been advocating that for decades. In fact, Frohnen and Carey believe that “there can be no simple return to the original dispensation,” which involved “the Framers’ constitutional morality, emphasizing procedure, caution, and restrained defense of one’s institutional prerogatives.”

With no quick and easy remedy at the ready, Frohnen and Carey encourage something less magnificent and extraordinary: civic participation in local associations and mediating institutions such as “families, unions, clubs, schools, and religious groups,” the kinds of little platoons that struck Alexis de Tocqueville, during his tour of America, as bulwarks against tyranny. “More important than any particular policy,” Frohnen and Carey aver, “is the attitude toward law and policy making that must be recaptured.” Although they suggest that some form of separation or secession may become inevitable, the corrective they envision is rhetorical and discursive. We must, in their view, shape the political discourse through private associations, which, in the aggregate, engender the bottom-up processes of rulemaking that reflect the normative orders of local communities rather than the top-down commands of a faraway, massive, impersonal sovereign.

Free Exchange with Dr. Donald Livingston of Emory University

In America, American History, Arts & Letters, Books, Conservatism, Economics, History, Humane Economy, Humanities, Law, liberal arts, Liberalism, Libertarianism, Philosophy, Politics, Scholarship, Southern History, The South, Western Civilization, Western Philosophy on January 18, 2017 at 6:45 am

In 2014, Dr. Donald Livingston sat for an interview for “Free Exchange,” a program of the John W. Hammond Institute for Free Enterprise at Lindenwood University.  The interview appears below. Dr. Livingston is Professor Emeritus in the Philosophy Department at Emory University, President of the Abbeville Institute, and Fellow of the Institute for Advanced Studies at the University of Edinburgh.

Seth Vannatta on Conservatism and Pragmatism in Law, Politics, and Ethics

In Academia, American History, Arts & Letters, Book Reviews, Books, Conservatism, History, Humanities, Jurisprudence, Law, liberal arts, Philosophy, Politics, Pragmatism, Scholarship, The Academy, Western Philosophy on December 28, 2016 at 6:45 am

Allen 2

At some point all writers come across a book they wish they had written. Several such books line my bookcases; the latest of which is Seth Vannatta’s Conservativism and Pragmatism in Law, Politics, and Ethics.

The two words conservatism and pragmatism circulate widely and with apparent ease, as if their import were immediately clear and uncontroversial. But if you press strangers for concise definitions, you’ll likely find that the signification of these words differs from person to person. Maybe it’s not just that people are unwilling to update their understanding of conservatism and pragmatism—maybe it’s that they cling passionately to their understanding (or misunderstanding), fearing that their operative paradigms and working notions of 20th century history and philosophy will collapse if conservatism and pragmatism differ from some developed expectation or ingrained supposition.

I began to immerse myself in pragmatism in graduate school when I discovered that its central tenets aligned rather cleanly with those of Edmund Burke, David Hume, F. A. Hayek, Michael Oakeshott, and Russell Kirk, men widely considered to be on the right end of the political spectrum even if their ideas diverge in key areas. In fact, I came to believe that pragmatism reconciled these thinkers, that whatever their marked intellectual differences, these men believed certain things that could be synthesized and organized in terms of pragmatism. I reached this conclusion from the same premise adopted by Vannatta: “Conservatism and pragmatism . . . are methods . . . guided by various common norms.” As such, they can lead to different political policies despite the consistently conservative character of their processes and techniques.

Read my review of Vannatta’s book in University of Dayton Law Review by downloading it from SSRN at this link.

Oliver Wendell Holmes Jr., Pragmatism, and the Jurisprudence of Agon

In America, American History, American Literature, Arts & Letters, Books, History, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Research & Writing, liberal arts, Literary Theory & Criticism, Literature, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Rhetoric, Scholarship, The Supreme Court, Western Philosophy, Writing on December 7, 2016 at 6:45 am

Allen 2

My latest book, scheduled for release next week through Bucknell University Press, is about United States Supreme Court Justice Oliver Wendell Holmes Jr.  The book continues my work at the intersection of law and the humanities and should interest scholars of literary theory, American literature, jurisprudence, and pragmatism.

I argue in the book that Holmes helps us see the law through an Emersonian lens by the way in which he wrote his judicial dissents. Holmes’s literary style mimics and enacts two characteristics of Ralph Waldo Emerson’s thought: “superfluity” and the “poetics of transition,” concepts ascribed to Emerson and developed by literary critic Richard Poirier. Using this aesthetic style borrowed from Emerson and carried out by later pragmatists, Holmes not only made it more likely that his dissents would remain alive for future judges or justices (because how they were written was itself memorable, whatever the value of their content), but also shaped our understanding of dissents and, in this, our understanding of law. By opening constitutional precedent to potential change, Holmes’s dissents made room for future thought, moving our understanding of legal concepts in a more pragmatic direction and away from formalistic understandings of law. Included in this new understanding is the idea that the “canon” of judicial cases involves oppositional positions that must be sustained if the law is to serve pragmatic purposes. This process of precedent-making in a common-law system resembles the construction of the literary canon as it is conceived by Harold Bloom and Richard Posner.

The book is available for purchase here:

Click here to purchase

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