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Love and the Law Professors

In Academia, Arts & Letters, Book Reviews, Books, Conservatism, Jurisprudence, Law, Law School, Legal Education & Pedagogy, Legal Research & Writing, Liberalism, Oliver Wendell Holmes Jr., Pedagogy, Scholarship, Teaching, Writing on March 29, 2017 at 6:45 am

This review originally appeared here in The University Bookman. 

As improbable as it sounds, someone has written “a love letter to the teaching of law.” At least that’s what Stephen B. Presser sets out to do in Law Professors, which is less pedagogical than it is historical and biographical in approach. If not a love letter, it’s at minimum a labor of love about the genealogy of American legal education, for which Presser is admirably passionate.

Even more improbable is how a book about three centuries of law professors could be enjoyable. Yet it is. Every rising law student in the United States should read it as a primer; experienced legal educators should consult it to refresh their memory about the history and purpose of their profession.

Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Prizker School of Law and the legal-affairs editor of Chronicles. He’s a leading voice of what is sometime referred to as paleoconservatism, who maintains that our political dysfunction derives in part from the methods and jurisprudence of law professors. His book might be called a diagnosis of our social ailments, the cure being the repurposing of legal education.

Beneath his silhouettes—two involve fictional figures (Lewis Eliot and Charles Kingsfield) while the other twenty deal with actual flesh-and-blood teachers—lies a structural dualism that enables him to classify his subjects under mutually exclusive heads: those who believe in higher law and divine order, and those who believe that laws are merely commands of some human sovereign. The former recognize natural law, whereby rules and norms are antecedent to human promulgation, whereas the latter promote positivism, or the concept of law as socially constructed, i.e., ordered and instituted by human rulers.

These binaries, Presser says, explain the difference between “common lawyers and codifiers,” “advocates of Constitutional original understanding and a living Constitution,” and “economic analysts of law and Critical Legal Studies.” Here the dualism collapses into itself. The common-law method is at odds with originalism in that it is evolutionary, reflecting the changing mores and values of local populations in a bottom-up rather than a top-down process of deciphering governing norms. Constitutionalism, especially the originalism practiced by Justice Scalia, treats the social contract created by a small group of founding framers as fixed and unamendable except on its own terms. The law-and-economics movement as represented by Judge Posner and Judge Easterbrook is difficult to square with natural law because it’s predicated on cost-benefit analysis and utilitarianism. In short, it’s a stretch to group the common law, originalism, and the law-and-economics movements together, just as it’s strange to conflate legislative codification with critical legal studies. Distinctions between these schools and traditions are important, and with regard to certain law professors, the binaries Presser erects are permeable, not rigid or absolute.

Presser’s narrative is one of decline, spanning from the late eighteenth century to the present day. It begins with Sir William Blackstone, “the first of the great modern law professors.” Presser may overstate the degree to which Blackstone propounded a common-law paradigm that was frozen or static and characterized by biblical principles. The influence of Christianity and moral principles is unmistakable in Blackstone’s Commentaries on the Law of England, especially in its introductory and more general sections, but the vast majority of the treatise—which was intended for an audience of young aspiring lawyers, not scholars or jurists—describes basic, mundane elements of the British legal system and organizes judicial principles and decisions topically for ease of reference. Presser is right that, more than anyone else, Blackstone influenced early American lawyers and their conception that the common law conformed to universal, uniform Christian values, but Jefferson’s more secular articulation of natural law as rooted in nature had its own adherents.

Other teachers included here are James Wilson (after whom Hadley Arkes has named a fine institute), Joseph Story (whose commitment to natural law is offset by his federalist and nationalist leanings), Christopher Columbus Langdell (whose “original and continuing impact on American legal education is unparalleled”), Oliver Wendell Holmes Jr. (whose career as a professor was short and undistinguished), John Henry Wigmore (whose “sometimes idol” was Holmes), Roscoe Pound (“a figure of extraordinary talent”), Karl Llewellyn (the “avatar” of the legal-realist movement), Felix Frankfurter (“no longer the God-like figure at Harvard”), Herbert Wechsler (“the anti-Holmes”), Ronald Dworkin (who reformulated the theories of John Rawls), Richard Posner (the subject of William Domnarski’s recent biography), Antonin Scalia (“best known for his bold conservative jurisprudence”), and several still-living contemporaries.

Presser is particularly hard on Holmes, relying on Albert Alschuler’s harsh and often careless assessments of the Magnificent Yankee. He charges Holmes with embracing the view that judges were essentially legislators and suggests that Holmes was “policy-oriented.” Although this portrayal is popular, it is not entirely accurate. In fact, Holmes’s jurisprudence was marked not by crude command theory (the Benthamite version of which he adamantly rejected) but by deference and restraint. Presser himself recalls Alschuler in claiming that Holmes “was prepared to approve of virtually anything any legislature did.”

So was Holmes a policy-oriented judge legislating from the bench, or did he defer to legislatures? Undoubtedly the latter. Only once during his twenty years on the Massachusetts Supreme Judicial Court did he hold legislation to be unconstitutional. As a Supreme Court Justice, he almost programmatically deferred to state law. “[A] state legislature,” he said, “can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States,” adding that courts “should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.” Rather than imposing his personal policy preferences, Holmes believed that a judge’s “first business is to see that the game is played according to the rules whether [he] like[s] them or not.” If Holmes’s conception of judicial restraint and the Fourteenth Amendment had carried the day, the holdings in Roe v. Wade, Planned Parenthood v. Casey, Lawrence v. Texas, and Obergefell v. Hodges, among others, would not have occurred.

Presser admittedly doesn’t like Holmes, but he is polite about it. There’s a charming sense of collegiality in his assessments of his contemporaries as well. He boasts of his own traditionalism without hesitating to call Duncan Kennedy and Catharine MacKinnon “brilliant.” He disagrees with his opponents without denigrating their intelligence and expresses gratitude to faculty whose politics differ radically from his own. He describes a variety of disciplinary schools, including critical race theory, which don’t appeal to him. And he gives some unjustly neglected thinkers (e.g., Mary Ann Glendon) the attention they rightly deserve while some overrated thinkers (e.g., Cass Sunstein) receive the attention they relish.

President Obama is held up as the quintessential modern law professor, the type of haughty pedagogue responsible for the demise of the rule of law and the widespread disregard for constitutional mandates and restrictions. Yet law professors as a class weren’t always bad; in fact, they once, according to Presser, contributed marvelously to the moral, spiritual, and religious life of America. Presser hopes for a return to that era. He wishes to restore a proper understanding of natural law and the common-law tradition. His conclusion takes a tendentious turn that reveals his abiding conservatism. Those who agree with him will finish reading this book on a high note. His political adversaries, however, may question whether they missed some latent political message in earlier chapters.

But isn’t that the nature of love letters—to mean more than they say and say more than they mean? Presser’s love letter to law teaching is enjoyable to read and draws attention to the far-reaching consequences of mundane classroom instruction. He’s a trustworthy voice in these loud and rowdy times.

Allen Mendenhall Interviews Paul Goldstein About His Latest Novel, “Legal Asylum”

In Academia, Arts & Letters, Books, Creative Writing, Fiction, Humanities, Law, Law School, Law-and-Literature, Literature, Novels, Teaching, The Academy, Writing on March 1, 2017 at 6:45 am

Paul Goldstein is an expert on intellectual property law and the Stella W. and Ira S. Lillick Professor of Law at Stanford Law School. He is the author of an influential four-volume treatise on U.S. copyright law and a one-volume treatise on international property. He has also authored ten books including five novels. Some of his other works include Copyright’s Highway: From Gutenberg to the Celestial Jukebox, a widely acclaimed book on the history and future of copyright, and Intellectual Property: The Tough New Realities That Could Make or Break Your Business. Havana Requiem, his third novel, won the 2013 Harper Lee Prize for Legal Fiction.

Paul Goldstein

Paul Goldstein

AM:  Thanks for taking the time to do this interview. What has been your colleagues’ reaction to this satire? 

PG:  My colleagues are, by and large, a sturdy and good-natured lot, and most of the reactions I’ve received have been very positive. Several have told me that they actually found themselves laughing out loud while reading the book. Still, there are a couple of colleagues who I know have read the book, but who seem curiously silent, and avoid my glance in the hallways. Who knows what they’re thinking!

AM:  Were you afraid your colleagues might push back against the novel, seeing themselves in the characters?  

PG:  I decided at the outset not to make Legal Asylum a roman a clef—a genre that I find cowardly and mean-spirited, and that I put in the same category as practical jokes. At the same time, there are certainly recognizable types of legal academics in the book, and it’s been a good deal of fun talking with colleagues about which group they put themselves in—Poets, Quants or Bog Dwellers.

AM:  In an interview with Jon Malysiak, the director of Ankerwycke Books, you stated that you’d spent 50 years thinking about the absurd and eccentric features of legal education. What are some of these?

PG:  One absurdity of course is the grim-faced crusade of law school deans to secure for their institutions a higher and still higher slot in the US News law school rankings, or at least not to slip from their present perch. That’s the question that drives the story: Can a law school make it into the US News Top Five and lose its ABA accreditation, all in the same year? Another absurdity highlighted in Legal Asylum is that, where in other university departments academic advancement, including tenure, turns on publication in peer-reviewed journals, American law schools commit the credentialing function to second-year law students who run the law reviews.

AM:  Your book is funny.  Why is humor a powerful mode of critique?

PG:  I’m glad you found the book funny! As to why humor is such a powerful mode of critique, it is because, for humor to work, it has to surprise the reader. Wait…she said that! He did what! And it’s that surprise, that unexpected twist, that turns the reader’s angle of view a fraction of a degree—or if it’s a belly laugh, maybe a full degree—so that the subject of the lampoon suddenly appears in a different light. To discover, for example, that the emperor is wearing no clothes, is not only funny, but it’s also a powerful critique of a certain kind of political leader.

AM:  You’ve called your protagonist, Dean Elspeth Flowers, a hero.  Why?

PG:  For a literary hero to be at all interesting, she or he needs to be flawed—the deeper the flaw the better—because it is only character defects like pride, willfulness and grandiosity that will get the hero in trouble, and without trouble, what kind of story do you have? Several readers of Legal Asylum have told me how shocked they were to discover that, by the end of the book, they were truly rooting for Elspeth.

AM:  Is there anything good about the obsession with law-school rankings and the so-called “arms race” between law schools?

PG:  I’m sure there are some beneficiaries of the law school rankings game. The companies that publish all those glossy brochures touting law school achievements to prospective respondents in the US News polls certainly come out ahead. So do the airlines that fly admitted students to the law schools that are recruiting them like prized football prospects. And of course there’s US News itself, for which rankings must be a rare profit center in a bleak economic landscape for news media.

AM:  It’s interesting that the American Bar Association doesn’t dodge satire in the book, yet the ABA—or a division of it—published the book.

PG:  I have a wonderful and brave editor at Ankerwycke, and he didn’t once bat an eye at the parts of the story that poke fun at the A.B.A accreditation process.

AM:  Did you ever consider writing about lower-ranked law schools, or did you, a Stanford law professor, write from the perspective you knew—from a top-ranked law school?  I’m thinking now of Charlotte Law School and the troubles it’s been facing in light of the Department of Education’s decision to revoke federal funding there. It seems to me that law professors and administrators at these schools, who are in crisis mode, may not be in the mood for humor about legal education. 

PG:  My first law teaching job was at a state law school and, although this was long before the rankings game got underway, I can say that, like countless other schools today—state and private—that haven’t made it into the top tiers, it was preparing its students for the practice of law as effectively as any law school in the country. Are there law schools that shouldn’t be in business today? I expect that there are, and that has nothing to do with the US News hierarchy. But other schools have a legitimate grievance against rankings that pretend that their fine-grained hierarchical distinctions convey any useful information.

AM:  Why the noun “asylum” in the title of the book?  It’s provocative and suggestive.

PG:  I like book titles that are at once evocative and descriptive. It’s hard to beat Anthony Doerr’s All the Light We Cannot See, for example.  There is of course an asylum for the criminally insane that figures in the plot of Legal Asylum, but the book’s title also aims to evoke the sheltered craziness that passes for legal education at the state law school where the story takes place.

AM:  Thanks again for the interview.  Any closing comments about how readers can find your work?

PG:  It was a pleasure. Readers can buy the book at Amazon.com, Barnes & Noble, IndieBound, and Shop ABA.

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.

Richard Posner is a Monster

In Academia, Arts & Letters, Book Reviews, Books, History, Humanities, Jurisprudence, Law, Legal Education & Pedagogy, liberal arts, Oliver Wendell Holmes Jr., Pragmatism, Scholarship, Writing on January 11, 2017 at 6:45 am

Allen Mendenhall

This review originally appeared here in the Los Angeles Review of Books.

William Domnarski is probably right when he writes that Richard Posner, like his hero Oliver Wendell Holmes Jr., “seemed destined for a literary life.” Holmes modeled himself on Emerson; he was the class poet at Harvard and earned his reputation as a thoughtful if controversial man of letters who could write with panache.

Posner, who majored in English at Yale, modeled himself on Holmes. “Holmes,” Posner declared in a missive, “is the greatest jurist, at least of modern times, because the sum of his ideas, metaphors, decisions, dissents, and other contributions exceeds the sum of contributions of any other jurist of modern times.” Posner’s writing similarly stands out for its flair and confidence.

Both men extended their influence beyond their legal opinions and have contributed to philosophy, becoming provocative historical figures in their own right. Posner has correctly invoked Holmes as a pragmatist, even if Holmes avoided the designation and referred to William James’s pragmatism as an “amusing humbug.” A member of the short-lived Cambridge Metaphysical Club that birthed pragmatism in the 1870s — and which also included James and C. S. Peirce — Holmes at least imbibed the pragmatism that was, so to speak, in the Boston air. Posner’s pragmatism, however, is only tangentially related to the thinking of Peirce and James, and so one hesitates to call it pragmatism at all.

In a move that must irritate University of Miami professor, Peirce supporter, and Richard Rorty critic Susan Haack, Posner distinguishes his variety of pragmatism — what he calls “everyday pragmatism” — from philosophical pragmatism. His thesis is most pronounced in his book Law, Pragmatism, and Democracy(2005). The quotidian pragmatism that inheres in the law is, in his view, practical and forward-looking and based on “reasonableness.”

It’s not always clear how this mode of pragmatism intersects with, or diverges from, the so-called traditional or classical pragmatism, though it differs markedly — and refreshingly — from what Haack labeled “vulgar Rortyism,” that Frenchified variety of structuralism that dispensed with truth as a meaningful category of discourse.

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One suspects, given his outsized ego, that Posner delights in having placed his stamp on legal pragmatism, thereby forcing perplexed students in philosophy departments to come to terms with his ideas and square them with not only Peirce and James but also John Dewey, George Herbert Mead, and W. V. Quine.

Posner’s self-importance can be charming or off-putting. You might see him as an erudite, spirited dandy playing the part of flamboyant intellectual; or, more cruelly, as a bitter sophist bent on celebrating his own idiosyncratic views and maliciously dismissing his opponents with callous words and harsh indictments. Certainly his gratuitous rhetorical attacks on the late Antonin Scalia warrant this latter take.

And yet the man speaks with a high, soft voice; loves and spoils his cat; and spends most of his time reading and writing. It’s hard to condemn such things.

Posner is on record as having fancied himself as not just equal to, but more intelligent than, Learned Hand and Henry Friendly — two giants of American law — because he considered himself more informed about economics. This is surprising, chiefly because his self-assessment occurred before he became a judge.

As a judge, Domnarski tells us, “he could seek to persuade his new judicial colleagues to follow him, so as to further shape the law as he saw it — in his own image.” He continues to shape everything, it seems, in his own image, including, perhaps, Domnarski’s biography, which he read both in draft form and as a final manuscript.

One wonders how heavily he edited his own biography — how much latitude he enjoyed in fashioning his story. He sat for interviews and emailed with Domnarski, which wouldn’t be unusual or improper had he not been a primary source of his own legend, as he certainly appears to have been. As a young man, Posner exercised his authority as president of Harvard Law Review to include certain content over the objections of his peers. Might he have done this with his biographer?

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Posner, an only child, is used to promoting himself, and his acquaintances at different stages of his life often note his arrogance. As early as high school, he would say “the Poze knows,” and called himself “the mighty one,” writing in yearbooks that he “welcomes you as a High Priest of Posner Worship.” You can write this off as playful, but you can’t write off the fact that he cites himself in cases more than any other judge — though not by name, Domnarski points out, as if to acquit him of unseemly motivations.

An editor of a peer-reviewed journal once complained that Posner had cited himself too often in a paper, to which Posner rejoined that self-citation was necessary because he had produced most of the relevant literature on the subject. “The Poze knows,” the footnotes might have read. Another time an exasperated Posner wrote to editors at Cambridge University Press, “Don’t you know who I am?” — the same remark that landed Henry Louis Gates Jr. in hot water under different circumstances.

Although Domnarski connected with over 200 people to piece together this book, Posner’s personal opinion of himself seems to control the narrative and crowd out contrary valuations that critics may have offered. It’s not that Posner’s accomplishments and reputation are unearned. He’s worked hard to become perhaps the best-known and most prolific federal circuit judge in our nation’s history, and his talents and learning are unquestionable and impressive. The person who emerges in these pages is exceptional at what he does, but difficult to like. He graduated first in his class at Harvard Law School but was not popular. He remains good with ideas — just not with people. He’d rather disseminate brilliant theories than keep them to himself, even when they’re in bad taste or poor form. Whether that’s a virtue or vice depends upon one’s priority for manners and decorum.

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Posner’s most remarkable and admirable quality, it seems to me, is his ability — even willingness — to accept constructive criticism in stride. He doesn’t take evaluations of his work personally, and he invites opposition to fine-tune and improve his ideas. He instructs his clerks to criticize his draft opinions line by line so that he can perfect his rationale. “[W]e should want” and “insist upon,” he wrote to a colleague, “challenge and criticism; the rougher the better; for one of the great dangers of achieving eminence is that people are afraid to criticize you and then you end up inhabiting a fool’s paradise.”

Posner has referred to himself as a “monster,” a characterization he’s also reserved for Wagner, Tolstoy, Nietzsche, Wittgenstein, Proust, Kafka, and Michelangelo. The term thus seems like an odd form of self-approbation rather than regret or self-loathing. It accords with his grand notion that he is “a Promethean intellectual hero,” not just some federal judge who happens to be well read.

Posner remains “a writer first and a lawyer second.” He’s correct that, as he told one correspondent, “the modern practice of law does not offer a great deal of scope for the poetic imagination.” Law schools have divided faculty into fields and sub-fields, and specialists in different areas of practice are increasingly unable to speak to one another in a common idiom or with shared vocabularies. Posner studied at Yale under Cleanth Brooks, who directed Posner’s research on William Butler Yeats, so he knows a thing or two about the poetic imagination and memorable expression.

But maybe the law is not about poetic imagination. Maybe it requires a prosaic and mechanical mind that can dispassionately and without fanfare adjudge the soundness of legal arguments presented by the parties to a case. If so, Posner may have been better suited for a different profession, one he would have loved and within which he could have more appropriately flaunted his creativity. Being an English professor, though, would’ve been out of the question; he dismisses much of what English literature departments regard as scholarship as “bullshit.” He uses the same word to describe work in the legal professoriate, of which he was once a seminal figure. By age 30, in fact, he had achieved the rank of full professor at the University of Chicago Law School. He cultivated the image of an iconoclastic rabble-rouser willing to subject all human activity to cost-benefit analysis. He popularized the law-and-economics movement and eagerly imparted that economic efficiency supplied the right methodology for describing and delineating common-law judging, which involved practical resolutions to concrete problems. The doctrinaire Posner of this period drifted far from the Communist roots of his mother. More recently, though, he’s alleged that capitalism is a failure and moved decidedly to the left on key issues.

Perhaps because of his haughtiness, the law can seem boring and routine without him. There’s something to be said for the color and liveliness he brings to his office, and for his belief that “the law really is a very limited field for a person of literary bent.” Domnarski’s treatment may seem deferential, but it doesn’t cover up Posner’s naked, sometimes brutal honesty. Posner is willing to say what others aren’t, and able to say it more eloquently.

If, as Domnarski avers, Posner considers the average lawyer to be like Bartleby or Ivan Ilych — fancifully tragic figures — then he must disdain or pity those lawyers who come before him in the courtroom and submit their briefs for his relentless scrutiny. The 1987 Almanac of the Federal Judiciary states that lawyers who argued before Posner found him to be “arrogant, impatient, dogmatic,” and “opinionated,” and that he “dominates arguments” and “cross-examines lawyers as if they were 1-Ls in a Socratic exchange with a professor.” The man is important, no doubt, but never learned how to play nicely.

Ever the Darwinian, Posner has suggested that great books prove their merit over time in the competition of the marketplace; perhaps his reputation will too.

Cornel West and Robert P. George Discuss the Liberal Arts

In Academia, Arts & Letters, Books, Ethics, History, Humanities, liberal arts, Liberalism, Literature, Pedagogy, Philosophy, Politics, Scholarship, Western Civilization, Western Philosophy on January 4, 2017 at 6:45 am

Dr. Cornel West and Dr. Robert P. George discussed the purpose of a liberal arts education at a forum of the American Enterprise Institute (AEI) in Washington, D.C., on Wednesday, November 30, 2016.  AEI Visiting Fellow Ramesh Ponnuru moderated the discussion, which appears in the video below.

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.

Terry Eagleton on the Death of Criticism

In Academia, Arts & Letters, Books, Fiction, History, Humanities, liberal arts, Literary Theory & Criticism, Literature, Philosophy, Rhetoric, Scholarship, The Academy, Western Philosophy on December 14, 2016 at 6:45 am

The following lecture by Terry Eagleton was delivered at the University of California Berkeley in 2010.

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

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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

Review of “The Final Days of Great American Shopping,” by Gilbert Allen

In American Literature, Arts & Letters, Book Reviews, Books, Creative Writing, Fiction, Humanities, liberal arts, Literary Theory & Criticism, Literature, Poetry, Short Story, Southern Literary Review, Southern Literature, Writing on November 30, 2016 at 6:45 am

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This review originally appeared here in Southern Literary Review.

With so many journals and genres available today, the dependable reviewer has a duty to warn off the noble optimists and advise the faint-hearted when a book is not for them.  Obligation thus requires that I caution readers:  Gilbert Allen’s The Final Days of Great American Shopping, a collection of short stories, is intelligent, nuanced, poignant, and distressing—and hence not for everyone.

If you’ve read more than one Nicholas Sparks novel this year, this book isn’t for you.  If you think Oprah is a guardian of culture, this book isn’t for you.  If you believe Fox News and CNN are edifying, this book isn’t for you.  If you think David Brooks, Charles Krauthammer, and Sidney Blumenthal are men of letters, this book isn’t for you.  If you prefer Dr. Phil to Jung and Freud, this book isn’t for you.  If Joel Osteen inspires you in a way that Augustine and Aquinas cannot, this book isn’t for you.  If, in fact, any of the aforesaid are true of your case, you might just be the unwitting target of Allen’s satire.

Having dispensed with the stereotypes and requisite preamble, I own that this is, in some respects, a personal review.  Allen was my professor at Furman University and a man I continue to admire.  He cannot be blamed for the way I turned out, and certainly not for my politics.  But he is partially responsible for my love of poetry and aesthetics.

Allen, I recall, loved cats, as well as his isolated, sylvan home in Traveler’s Rest, South Carolina, which is far from his native Long Island, both culturally and geographically.  His spoken diction was always precise, as was the pencil-thin mustache that grayed above his lips.  Tall and skinny, with belts so long they could’ve wrapped around him twice, he spoke softly and carried a big pen.

He commits poems to memory.  I once heard him recite “Stopping by Woods on a Snowing Evening” to the tune of La cumparsita, a curious performance he allegedly repeats using other poems and tangos.  Ancient or modern, free verse or rhyming, short or long, poetry is his lifework, calling, and passion.  So, I suspect, he suffers, as honorable poets are wont to do.  His suffering will surely escalate as he decides how to mass-market this latest book—his first one in prose—that’s critical of mass-marketing.

The book depicts a self-indulgent American suburbia starved for money and materialism, where people try to purchase happiness and other forms of fleeting satisfaction while fixated on their own or others’ sexuality.  These 16 stories, told in chronological order from the recent past to the immediate future—and, at last, to the year 2084—are not directly about sex.  Yet sexual anxieties, appetites, and insecurities bear a subterranean, causative relationship to the acquisitive urge and cupidity that complicate many of the characters in Allen’s dystopian community, Belladonna, a gated subdivision in South Carolina, probably near Greenville.

Allen’s opening story is a complex portrait of loving and loathing, and the fine line between the two.  A childless couple, Butler and Marjory Breedlove, still in their early 40s, struggle to remain compatible as they degenerate into a life of stultifying domesticity, having suffered through three miscarriages and the abortion of an anencephalic child.  Butler is an insurance salesman and a beer-drinking baseball fan who will pull for an aging veteran against his own beloved Atlanta Braves.  Marjory, the silent, brooding type, obsesses over her luxuriant, blooming flowers, the fecundity and fertility of which contrast with her own barrenness.

Butler, as if to compensate for a sense of emasculation occasioned by his inability to sire offspring, sets out to install storm windows one Saturday morning while Marjory is off visiting her mother.  If Marjory cannot be gratified through sexual activity, he presumably reasons, then she’ll derive pleasure from his dutiful, manly labor.  A client has told him that storm windows are “easier than a second honeymoon” because they require just nine “screws,” so there’s little doubt that Butler’s chore is substitutionary: it fulfills the need for virile exertion that, we may assume, is not met through copulation.

The problem is, Butler procrastinates and leaves the windows leaning over Marjory’s flowers for too long.  Any boy who’s used a magnifying glass to burn ants would’ve known not to do this, but not Butler.  He doesn’t consider what might happen to Marjory’s flowers as he sets aside the windows to pursue booze and television.  He does, however, manage to complete the window installation.  When Marjory returns, he proudly reveals his handwork, announcing, “I did it myself.”

He’s not fully aware of what it is until Marjory, ignoring the windows, says, “My flowers.”  She stares at her garden as if peering into an “open grave.”  The florae that were adjuncts for her lost children, that were little leafy lives she had created and sustained, are now dead.  She can’t bear the loss.  Tragedy compels her to mourn on a closet floor in her nightgown.  It’s an intolerable image—her sitting there, grieved and defeated—that captures the sad inability of two people to live out their most primitive desires.

The seemingly banal agonies in this story of strained marriage are subtly and quizzically meaningful.  What is the significance, for instance, of Marjory’s decision to serve up a scrumptious breakfast for Butler while she munches on blackened toast?  Such a small gesture, but so gravely significant.

With moments like these, impressively numerous in such a short, short story, Allen achieves, I think, the right amount of ambiguity: neither Butler nor Marjory is the “bad guy,” and both seem thwarted from intimacy and happiness by forces beyond their control yet caused by their own deliberate action.  They mean well, mostly, but they’re the same poles on a magnet, destined, it seems, to repel one another.  Even their surname—Breedlove—raises interpretive puzzles, since breeding and loving seem foreign to their relationship.  Whether it’s their childlessness or an accumulation of small disappointments that causes their desperation and despair remains unclear.

Perhaps they recognize, as most of us do at some point, that they’ll never become the people their younger selves wanted to be—and that this, whatever this may be, is all there is.  Youthful aspiration is bound to become dashed hope, and once we’ve made ourselves what we are, there’s no unmaking us.

John Beegle, the protagonist of the following story who happens to have purchased health insurance from Butler Breedlove—each story is delicately linked—faces a different problem, or problems: a growing estrangement from his wife and the incapability to connect with his teenaged daughters, one of whom has grown increasingly flirtatious in proportion to her budding breasts.  John likes “to understand things, piece by piece,” but he can’t make sense of the females in his family.  They move so fast, and he so slowly.

This all changes when he discovers, in the garage of his new house, an “autogyro,” or small helicopter, circa 1961.  This antique machine remains operational, and the more John works on it, the more his daughters take to him.  He even revives his libido, surprising his wife with a “midday tryst.”  The restoration of the helicopter refurbishes his own spirits, and he eventually takes the perilous contraption for a ride, rising high into the air until he can “see everything.”  Like Frost’s wistful narrator who imagines himself climbing a birch tree up toward heaven only to be set back down again, John, hovering in the sky, “begins to dream of his landing, of his own house.”  He thinks of his family and his return to the ground.  Earth is, indeed, the right place for love.

The book is full of characters like these: the widowed Priscilla Knobloch with her twelve-year-old, one-handed daughter; Ted Dickey, whose numerous speed-dating partners represent different social ailments from materialism to decadence; the unnamed hick hair stylist who likes to rear-end Porsches (just a “love tap”) and talk about blow jobs; a thrift store worker and his wife, the menopausal Meredith, who start a non-profit corporation for religious “bedding”; Jorja Sorenson, a painter, and her husband, Houston, who collaborate on the sculpture of a fetus that draws the attention of none other than Marjorie Breedlove; and on and on.

Through these hapless, heedless figures and their goods, interests, and acquisitions—television, cars, homes, designer shoes—certain symptoms of our national condition are projected: greed, consumerism, profligacy, extravagance, melancholy.  It’s not overstating to say that, with these stories, Allen has tapped into our national consciousness and disorder.  The quintessential American, restless and without a past, energetic and democratic, his works and beliefs at once enterprising and derivative—that iconic, preeminently rugged and relatable laborer—has, in our imagination, transitioned from self-reliant and industrious, always ready to “simply, simplify,” to dark and pitiful, burdened by the wealth and joy that forever elude him.

Although Americans once envisioned a vast frontier of possibility, an unknown and ever-widening expanse of hope and promise, imbuing optimism and idealism wherever we went, we now, sketchy and insecure, stumble along looking for opportunities that don’t exist, endeavoring to remain perpetually young and verdant, as if gray hair weren’t a crown of glory and splendor.  We want what we can’t have and have what we don’t want.

Once we were Franklins and Jeffersons, Emersons and Whitmans; today we’re Willy Lomans.  Or Cher Horowitzes.  Or Gordon Gekkos.  Without guilt we can’t identify with Reverend Dimmesdale or Hester Prynne.  Without abstinence, we can’t appreciate the allure of Rappacini’s daughter.  As coddled, perpetual children, we don’t get Ishmael and Ahab, Frederick Douglass, or Jay Gatsby.  We’re so phony that we don’t understand Holden Caulfield anymore.

So Allen has done us a great service.  By mocking us and portraying our ominously recognizable and quotidian depravities, he’s exposed the warring desires to which we’ve fallen prey: extravagance and simplicity, envy and indifference, aspiration and defeat, conformity and revolt.  He’s a spokesman for the disenchanted and disillusioned, for those who still possess the poetic vision about which Emerson intoned.   He sees a double consciousness, a conflict of the mind, that drags us into woeful insipidity and angst.  If reading his book isn’t like looking reluctantly and masochistically into the mirror, or less figuratively into your own split psyche, then you’re delusional or dishonest, or perhaps—just perhaps—the rare exception.

These stories are harsh, biting, titillating, disparaging, and sarcastic, but they’re also funny.  Allen derides us, and perhaps himself, with humor.  He’s a sensitive man, and very quiet.  Who knew that, beneath his silent façade, there was a hilarious personality?

I did.  Because his poetry reveals that about him.

His first collection of poetry, In Everything, was spiritual and serious, a sort of Buddhist mystical meditation on Nature and Being.  As time went on, he eased up and relaxed.  He moved from the intensity of numinous experience to the comic realities of everyday life.

It’s not that his writing became lighthearted, upbeat, or shallow.  It remained pensive and complex and open to rigorous interpretation, sometimes even cosmic in scope.  Yet there was something more playful and satirical about it.  He came to enjoy social criticism as much as he enjoyed, say, the splendor of sentience and the complexities of the mind and soul.

This tendency towards the witty and quirky, as I have suggested, finds expression in The Final Days of Great American Shopping.  It’s evident in a pick-up line: “Would you like to go on a corporate retreat next month?  As my tax deduction?”  It materializes in unsuspecting places such as the urinal, where a man talks on his cell phone as he pisses.  It even surfaces in the epithet “Confederate Flaggots,” which implies a phallic fascination with flag poles that’s endemic among men “who dress up in nineteenth-century costumes to do unspeakable things to one another in public parks.”

But not every attempt at humor is successful: the narrator of the story “Friends with Porsches” speaks like a redneck, but not a real redneck—just a forced caricature whose colloquialisms and ungrammatical syntax aren’t quite believable as actual speech.

Allen’s sardonic, unpretentious fiction renders a society that’s abandoned the “errand into the wilderness”—as Perry Miller so aptly labeled the once powerful theme of American experience—for the errand into the shopping mall.  Although some of the technology that appears in his stories is already dated—most of the stories were first published before iPhones and iPads made the Internet and email a ubiquitous, hand-held phenomenon—one senses in their representation a renewed and profane scrutiny that’s both subversive and daring.

Are we in the final days of American shopping, as Allen suggests?  If so, is that an apocryphal singularity, the secular equivalent to the eschaton?

Maybe.  Shopping, for Allen, is, after all, much more than merely examining and evaluating retail merchandise with an eye toward a trivial purchase.  It’s systemic and magnificent, a fluid cultural sickness with no immediate cure.  Alike in severity to those idolatrous practices which demand prophetic ministry, it signals a coming destruction that necessitates oracular warning.  Shopping has become the lord and king of us all.

As for the other events of shopping’s reign, those which don’t appear in Allen’s book, are they not written in the records of the Internet, the annotations of our technology, and the annals of our digital media?  Allen buries shopping with its ancestors.  And he buries us, and our endless wants, with it.

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