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Review of Richard Posner’s “The Federal Judiciary”

In Arts & Letters, Book Reviews, Books, Jurisprudence, Law, Writing on December 27, 2017 at 6:45 am

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

“I’m not a typical federal judge,” Richard Posner says in his new book The Federal Judiciary, which seems designed to affirm that claim.

Released in August, this tome shouldn’t be confused with his self-published Reforming the Federal Judiciary, released in September. The latter has generated controversy because it includes documents internal to the Seventh Circuit Court of Appeals, including personal emails from Chief Judge Diane Wood and confidential bench memoranda. The former, the subject of this review, is no less blunt, though one suspects the editors at Harvard University Press ensured that it excluded improper content.

Publication of both books coincides with the sudden announcement of Posner’s retirement. This quirky and opinionated jurist is going out with a bang, not a whimper, after serving nearly 36 years on the bench. He could have taken senior status; instead he’s withdrawing completely, citing his court’s handling of pro se appellants as the prime reason.

The Federal Judiciary presents “an unvarnished inside look” at the federal court system, which, Posner insists, “is laboring under a number of handicaps,” “habituated to formality, resistant to change, backward-looking, even stodgy.”

Posner is a self-styled pragmatist who champions resolving cases practically and efficiently through common-sense empiricism without resorting to abstractions or canons of construction. He adores Justice Oliver Wendell Holmes Jr., whose jurisprudence resembled the pragmatism of C. S. Peirce, William James, and John Dewey. His methodology relies on analyzing the facts and legal issues in a case, and then predicting the reasonable outcome in light of experience and the probable consequences of his decision. Accordingly, he follows his instincts unless some statute or constitutional provision stands in the way. Most of the time, the operative rules remain malleable enough to bend toward his purposes.

This fluid approach to judging stands in contradistinction to that of Justice Antonin Scalia, for whom Posner has little affection. In fact, Posner establishes himself as Scalia’s opposite. Where Scalia was formalistic and traditional, Posner is flexible and innovative. Where Scalia was doctrinaire, Posner is pragmatic. Where Scalia was orthodox, Posner boasts, “I am willing to go […] deep into the realm of unorthodoxy.”

Posner’s criticisms of Scalia can seem irresponsibly personal, involving not only Scalia’s originalism and textualism (legitimate objects of concern) but also his religious views on Creationism (about which, Posner declares, Scalia was “wrong as usual”). He calls Scalia’s belief in the devil “[c]hildish nonsense” and denounces Scalia’s unhealthy lifestyle. In a low moment, he calls Scalia “careless” for dying next to a sleep apnea machine the ailing justice wasn’t using. This rebuke is irreverent, but is it constructive or extraneous? Does it advance Posner’s judicial methods while weakening the case for Scalia’s?

Aspiring to be “relentlessly critical and overflowing with suggestions for reform,” Posner attacks the “traditional legal culture” that, he says, “has to a significant degree outlived its usefulness.” Cataloging the targets of his iconoclastic ire would be exhausting. He jumps from subject to subject, castigating “judicial pretense” and treating with equal fervor such weighty topics as statutory interpretation and such trivial matters as the denotation of “chambers” versus “office.” He confers delightfully disrespectful labels (“slowpokes,” “curmudgeons”) on his colleagues but can also seem petty (complaints about food in the US Supreme Court cafeteria come to mind).

Most of his critiques have merit. His persistent assault on the sanctimony and pomposity of federal judicial culture is acutely entertaining, signaling to some of his more arrogant colleagues that they’re not as important or intelligent as they might think.

Posner likes to shock. What other judge would assert that the Constitution is “obsolete” or ask when we’ll “stop fussing over an eighteenth-century document” that institutes the basic framework of governance for the country? A bedrock principle underlying the separation-of-powers doctrine holds that the judicial branch interprets law while the legislative branch makes it. Posner, however, announces that federal judges legislate even though they’re unelected. Conservative commentators would offer this fact as condemnation, but Posner extols it as an indispensable prerogative.

Although he alleges that judges are political actors, he’s impatient with politicians. He ranks as the top weakness of the federal judiciary the fact that politicians nominate and confirm federal judges and justices. (The president nominates and the Senate confirms.) The basis of this objection is that politicians are mostly unqualified to evaluate legal résumés and experience.

A refrain Posner employs to advance his argument — “Moving on” — might serve as his motto for judges, who, in his mind, must break free from undue restraints of the past. “The eighteenth-century United States, the nineteenth-century United States, much of the twentieth-century United States,” he submits, “might as well be foreign countries so far as providing concrete guidance (as distinct from inspiration) to solving today’s legal problems is concerned.” This isn’t meant to be hyperbole.

His citations to Wikipedia and tweets — yes, tweets — enact the forward-looking attitude he celebrates: he’s not afraid of new media or of pushing boundaries. Consider the time he asked his law clerks to doff and don certain work clothing to test facts presented by litigants in a case before him.

His advice to colleagues on the bench: Let clerks refer to you by your first name; do away with bench memos and write your own opinions; stop breaking for three-month recesses; stagger hiring periods for law clerks; don’t employ career clerks; don’t procrastinate; don’t get bogged down in procedure at the expense of substance; be concise; read more imaginative literature; avoid Latinisms; abolish standards of review. If you’re an appellate judge, preside over district-court trials. And whatever you do, look to the foreseeable future, not backward, for direction.

Readers of his most recent book, Divergent Paths, will recognize in these admonitions Posner’s distinctive pet peeves. He believes that judges who don’t author their opinions are weak or unable to write well. If judges were required to write their opinions, he supposes, fewer unqualified lawyers would sit on the bench: inexpert writers, not wanting to expose their deficiencies, would not accept the nomination to be a federal judge.

Posner’s love of good writing is so pronounced that he praises Scalia, his chosen nemesis, for his “excellent writing style.” He sprinkles references to Dante, Tennyson, Keats, Fitzgerald, Nietzsche, T. S. Eliot, Orwell, and Edmund Wilson and supplies epigrams by Auden, Yeats, and Alexander Pope. Those who didn’t know it wouldn’t be surprised to learn that Posner majored in English at Yale.

Still one comes away with the impression that he has sacrificed precision for speed. He appears to have cobbled together several blog posts and other articles of only ephemeral significance to pad his polemic. He discusses judges’ “priors” on page 116 but doesn’t define that term (“a mixture of temperament, ideology, ambition, and experience”) until page 148. Liberal with block quotes, scattered in focus, he recycles by-now familiar arguments against Bluebook and legal jargon and other staples of the legal academy. Even those who agree with him on these points will balk at the redundancy.

The repetition isn’t only at the thematic level: it involves diction and syntax. He tells us on page 408, “Pope Pius XII made peace with evolution in 1950.” Then a page later, he states, “The Church had had a ‘problem’ with evolution until Pius XII had made his peace with it in 1950.” On page five, he writes, “almost all federal judicial opinions are drafted by law clerks […] in the first instance, and edited more or less heavily by the judge.” He then echoes himself on page 22: “[M]ost judges (and Justices) require their law clerks to write the initial draft opinion, which the judge then edits.” He describes this same process again on page 276. “I write my own opinions,” he declares only to repeat himself later: “I write and edit my own opinions.” These are mere samples of a striking trend in Posner’s book.

A former law professor, Posner concludes by assigning grades to the federal judiciary in eight categories: selection of judges (B), judicial independence (A-), rule of law (A), finality of judgments (B), court structure (B), management (C), understanding and training (C), and compensation (B+). Total? Around a B average. For all the fuss, that’s a decent score.

Posner’s characteristic arrogance is grandly exhibited. “I’m a pretty well-known judge,” he assures us. His preface includes a short bibliography for “readers interested in learning more about me.” He names “yours truly” (i.e., himself) in his list of notables in the field of law-and-economics, an indisputable detail that a more humble person would have omitted. Posner’s self-importance can be charming or off-putting, depending on your feelings toward him.

Yet he’s honest. And forthright. Not just the federal judiciary but the entire legal profession thrives off mendacity, which is not the same as a lie or embellishment. It’s a more extravagant, systemic mode of false narrative that lawyers and judges tell themselves about themselves to rationalize and enjoy what they do. Posner sees through this mendacity and derides it for what it is. His frank irritability is strangely charming, and charmingly strange. The federal judiciary has lost a maverick but gained a needed detractor.

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Daniel James Sundahl Reviews Sara Baker’s “The Timekeeper’s Son”

In Arts & Letters, Book Reviews, Books, Creative Writing, Fiction, Humanities, Literary Theory & Criticism, Novels on December 13, 2017 at 6:45 am

Daniel James Sundahl is Emeritus Professor in American Studies and English at Hillsdale College where he taught for over 32 years.  Prior to retirement, he was Kirk Distinguished Professor in American Studies. He’s relocated from Michigan to South Carolina.

These days one can enroll in creative writing programs with coursework or workshops in narrative medicine, poetic medicine, expressive writing and even medical humanities.

It’s an interesting notion likely connected to “coming of age” stories, “family dynamics” stories, all to be told with within expansive and insightful narratives which apply to all fields of “work” and of course what it means to be human with an examined life. Storytellers, after all, are interpreters in professional and cultural environments.

What would be the point?

Narrative as healthcare can be the point especially since stories help build empathy, mindfulness, and are diagnostic tools.  Imagine for a moment a healthcare professional addressing an illness.  How quick and easy to venture into remote hypotheticals.  How better to address the illness through narrative, the interior experience of deep inquiry, confronting the illness as a story.

I mention this since it seems the way to address a review of Sara Baker’s The Timekeeper’s Son, a novel which asks the reader to recognize, absorb, interpret, and bear witness to a young man’s “difference” and his family’s dysfunction.

Why?

It can be used to explain motivation, even what organizes a novel’s plot or narrative development.

Here’s some context. I once sat with a student attempting something basic—how to use a dictionary.  It was fundamental, alphabet, phonetics, and a dictionary entry.  I gave the young man a word and then handed him the dictionary with the simple request: Look for the word which I had just sounded out.

He was flummoxed and looked at me and said, sweetly, “I don’t know how to use the air conditioner.”  The issue was severe dyslexia.

There’s a kinship between this small narrative and Sara Baker’s novel: In a Georgia small town, Josh Lovejoy, whose aspiration in life is to become a filmmaker, drives home late at night uncharacteristically “high.”  Accidentally he hits a jogger, David Masters, placing him in a coma.  In all likelihood, Josh owns some hidden disabilities, living as he also does in a fragile household.

The incident is shattering, more so because Josh is already estranged from his father, who sees little value in Josh’s aspirations.  The consequence of living with a “distant” father is Josh’s loneliness and lack of self-worth.

He’s adrift at an important moment in his life and culpable for the accident.  He takes up his court-ordered community service while waiting to see if his culpability will change when and if David Masters dies.  Josh works at the Good Shepherd School for Disabled Children.

Baker places the reader, then, in the heart and soul of a troubled young man; the plot, however, is diagnostic, addressing not only the Josh’s “troubles” but the delicate equilibrium of his family and the Masterses’ family.

It’s a “case study,” in other words; Josh’s father is a clockmaker whose sense of things is more devoted to the timepieces he keeps running but with the same disinterestedness he brings to his family life.  His “shop” is the place to which he retreats.  Josh’s mother, on the other hand, is equally preoccupied if not depressive.

In the novel’s time, then, as those hidden disabilities and wounds emerge against the background of the claims and limits of community, Josh faces a certain kind of annihilation which would include the “good” that’s in his heart.

Interview with Cyrus Webb Regarding “Of Bees and Boys”

In Arts & Letters, Book Reviews, Books, Creative Writing, Creativity, Essays, Humanities, Literature, Southern Literature on November 22, 2017 at 6:45 am

Redeeming the Debauched Falstaff

In Academia, Arts & Letters, Book Reviews, Books, Britain, British Literature, Creativity, Fiction, Humanities, liberal arts, Literary Theory & Criticism, Literature, Philosophy, Shakespeare, Western Civilization, Western Philosophy on November 15, 2017 at 6:45 am

This review originally appeared here in The American Conservative. 

In The Daemon Knows, published in 2015, the heroic, boundless Harold Bloom claimed to have one more book left in him. If his contract with Simon & Schuster is any indication, he has more work than that to complete. The effusive 86-year-old has agreed to produce a sequence of five books on Shakespearean personalities, presumably those with whom he’s most enamored.

The first, recently released, is Falstaff: Give Me Life, which has been called an “extended essay” but reads more like 21 ponderous essay-fragments, as though Bloom has compiled his notes and reflections over the years.

The result is a solemn, exhilarating meditation on Sir John Falstaff, the cheerful, slovenly, degenerate knight whose unwavering and ultimately self-destructive loyalty to Henry of Monmouth, or Prince Hal, his companion in William Shakespeare’s Henry trilogy (“the Henriad”), redeems his otherwise debauched character.

Except Bloom doesn’t see the punning, name-calling Falstaff that way. He exalts this portly, subversive figure as the charming master of deception and rogue scheming, and more importantly as a courageous vitalist “unmatched in all of Western imaginative literature.” Bloom’s astounding reverence for this clever, corrupting, calculating, mischievous Bacchanalian—whose life-affirming zest is as delightful as it is disconcerting—reveals he’s capable of the same kind of strategic indulgence that animates his transgressive subject.

His opening lines establish an affectionate, worshipful tone: “I fell in love with Sir John Falstaff when I was a boy of twelve, almost seventy-five years ago. A rather plump and melancholy youth, I turned to him out of need, because I was lonely. Finding myself in him liberated me from a debilitating self-consciousness.”

This isn’t academic prose. Bloom doesn’t write scholarship in the sense in which English professors, who chase tenure and peer approval, understand that term. Could you imagine a graduate student in literature showing up at the Modern Language Association’s annual convention and pronouncing from behind a podium that “Falstaff wants us to love him”? Or that Falstaff “is the mortal god of our vitalism and of our capacity for joyous play of every kind”? That would end a career before it began.

To hold Bloom to professional academic standards is fundamentally to misunderstand the man. His criticism is art unto itself; it’s genre-defying literature: part memoir, part fiction, part psychoanalysis. He’s a character of his own creation, as imaginary as Falstaff, and yet real and alive. In his psyche, the mysteries of which he plumbs with Freudian apprehension, Falstaff, too, is alive—and more than that, he’s a deified “embassy of life.” Bloom calls him the “greatest wit in literature,” whose vices “are perfectly open and cheerfully self-acknowledged.”

Immediately objections spring to mind: Didn’t Falstaff take bribes from competent soldiers who wished to avoid battle, thereby dooming his innocent, rag-tag band of unready troops? Doesn’t this bawdy gambler fake his own death to avoid injury and then seek credit for Hal’s slaying of Hotspur? Isn’t he a compulsive liar and self-serving fabricator? Rather than earn his keep, doesn’t he mooch off borrowed and stolen money while fraternizing with lowly criminals in disreputable taverns? Doesn’t he find stealing entertaining? Doesn’t he fail miserably in his attempt to seduce married women? Doesn’t he thrive in the seedy underbelly of impolite society?

No matter. The venerating and visionary Bloom sees Falstaff’s flaws as part of his appeal. Falstaff, prefiguring Nietzsche and Sartre, stands outside ethical jurisdiction as the lovable übermensch, the seductive sum of his own deliberate actions and unbridled agency in a world without God. Falstaffianism can be reduced to an abrupt imperative: “do not moralize.” These are Bloom’s italics, emphasizing, perhaps, the enthusiasm with which Falstaff rebuffs normative codes and basic standards of decency, vivaciously embracing the self—the subjective, knowing, self-aware “I” that wills a future into being—with laughter and existential rapture.

Kate Havard argues in Commentary that “Bloom must actually reckon with the sorts of things Falstaff does that would seem monstrous in real life.” I’m not sure about this mandate. Everyone is susceptible to wickedness. We’re fallible. Yet the magnitude of our evil acts is proportionate only to our capacity and will for achieving them. Greater power over others has the potential to increase the enormity of our chosen wrongs. Two hearts, equally blameworthy, can enact varying degrees of harm. With our meanness and malevolence, depravity and double-dealing, we’re all like Falstaff at some instant, even if we “cannot say that we are Falstaff’’ (my italics this time) because Falstaff cannot be universal—he’s too shrewd, raucous, and riotously convivial to be an archetype.

That we haven’t occasioned rank violence or mass damage is only evidence of our own powerlessness to do so in our moment of darkness. Our minds have contemplated horrors that our bodies never brought to bear. Knowing this, one begins to appreciate Bloom’s melancholy voice in such an adoring account. “Falstaff is no everyman,” he intones, “[b]ut all of us, whatever our age or gender, participate in him.” This truth, if it is one, doesn’t excuse Falstaff; rather it makes his decisions disturbingly recognizable.

Falstaff stands for absolute freedom, challenging dogmatic pieties even as he uses them to his advantage. He signals human choice and authenticity, but he’s elusive and multifaceted. “There is no single Falstaff,” Bloom submits. “In my youth and middle years I thought I knew Falstaff. That Falstaff has vanished from me. The better I know Sir John the less I know him. He has become one of the lost vehemences my midnights hold.”

This tragicomic Falstaff is so complex and ambiguous that he undermines expectations, avoids patterned behavior, and escapes simple explanation. “Falstaff is as bewildering as Hamlet, as infinitely varied as Cleopatra,” says Bloom. “He can be apprehended but never fully comprehended. There is no end to Falstaff. His matrix is freedom but he dies for love.”

Falstaff is a more cunning and charismatic version of Chaucer’s drunkenly crass miller, whose hilarious tale of casual adultery lacks the stark intentionality that makes Falstaff so treacherously in control. He’s like a flatulent Santa Claus, without the meekness or mildness of Christian self-denial. He is, in a word, exuberant, and as Bloom opines, “Exuberance in itself is a shadowy virtue and can be dangerous to the self and to others, but in Falstaff it generates more life.”

Bloom commendably acknowledges the charges leveled against him: “I am weary of being accused of sentimentalizing Falstaff.” He says he’s “been chided for sentimentality when I observe Falstaff betrays and harms no one,” and he pleads with us to enjoy Shakespeare’s rendering of the Fat Knight, adding, “Do not moralize.” The point is not to elicit agreement but to move you emotionally, although his expressive mode is less sentimental than it is spiritual or mystical. He has a jovial appetite for living, thinking, and loving that resembles Falstaff’s in its sheer capaciousness—hence his aside that he’s a “lifelong Falstaffian.”

The Book of Genesis asserts that God made man in his image. One wonders whether Bloom’s ecstatic Bardolatry—he once called Shakespeare “a mortal god”—leads to a different but related conclusion: that Shakespeare, as God, created Bloom in Falstaff’s image. Although age has thinned his once corpulent physique, Bloom is, at times, the boastful embodiment of the bombastic, iconoclastic genius (Sir John) whose chief weakness is his fondness and devotion. At other times, he’s a prophetic seer haunted by the daemon, devoid of merry wit, laughter, or redemptive charm and enthused by ineffable forces to cry out with beautiful despair and angst. His gusto seems ever-present, as does his displayed interiority.

Yet there is no single Bloom. You may think you know him, but then he vanishes as a lost vehemence.

“He has never abandoned me for three-quarters of a century,” Bloom muses of Falstaff, “and I trust will be with me until the end. The true and perfect image of life abides with him: robustly, unforgettably, forever. He exposes what is counterfeit in me and in all others.” Perhaps that’s why Falstaff is so threatening: he lays bare that manipulative, liberated part of ourselves that we don’t acknowledge or even fathom, that’s alienated and estranged from other people, accessible only to the “I myself”—the only thing we know that we know.

A Conversation Regarding Thomas Goode Jones

In America, American History, Books, History, Humanities, Law, liberal arts, Nineteenth-Century America, Politics, Scholarship, The South on November 8, 2017 at 6:45 am

Talking “Of Bees and Boys” on “Writers’ Voices”

In Arts & Letters, Books, Creative Writing, Essays, Humanities, Literature, Writing on October 25, 2017 at 6:45 am

Allen Mendenhall Interviews Anton Piatigorsky, Author of “Al-Tounsi”

In Arts & Letters, Books, Creative Writing, Criminal Law, Fiction, Humanities, Justice, Law, liberal arts, Literature, Novels, Oliver Wendell Holmes Jr., Philosophy, Writing on October 4, 2017 at 6:45 am

AM: Thanks for discussing your debut novel with me, Anton.  It’s titled Al-Tounsi and involves U.S. Supreme Court justices who are laboring over a case about an Egyptian detainee held on a military base in the Philippines. How did you come up with this premise for a novel? 

AP:  I was interested in the intersection between contemporary legal and political issues and the personal lives of the justices. I was particularly impressed by the ways in which the writ of habeas corpus has been used (and suspended) throughout U.S. history.

The Great Writ is a heroic call to responsibility—a demand made by the judiciary for the executive to live up to its obligations to imprisoned individuals. While it has obvious political and social ramifications, it also has philosophical ones. It encourages moral and psychological reckoning: what are our responsibilities to others?

I was excited about writing a novel where two strains—the political and the personal—overlap and blend. I realized that if I fictionalized the important 2008 Guantanamo Bay case Boumediene vs. Bush—by changing key events, decisions and characters—I could use it as the basis for a novel about the Court that explores all my interests.

Anton Piatigorsky

AM: How did you decide to change directions and write about the law?  Did this case just jump out at you?  Your previous writings address a wide variety of subjects but not, that I can tell, law. 

AP:  I came to the law, strangely enough, through religion. I’ve long been interested in how religion functions, and especially in the ways that secular systems mimic religious ones. When I started reading about American law and the U.S. Supreme Court, I saw those institutions as a part of an Enlightenment era secular religion. From this perspective, law is a system of rituals, codes and writings that helps establish an identity for a community, a set of shared values and beliefs, and a way for people to function within the world. I found that fascinating. It inspired all sorts of questions.

What are the general beliefs about people and the world that lie beneath the American legal system? How are those beliefs enacted in cases, courts, and legal writings? How do they play out in the rituals of the Court?  How do the justices of the Supreme Court —who are, in some ways, high priests of the legal world — reconcile conflicts between their personal beliefs and the foundational beliefs of the legal system they guide?

The fictional stories I wanted to tell about justices’ lives grew out of these general questions. Those questions also led me into an investigation of the main case before them.

AM: One of the most fascinating parts of the book, to me, is the Afterword, which consists of the concurring opinion of the fictional Justice Rodney Sykes.

AP: I have always loved novels of ideas, when a character’s emotional journey overlaps with their complex thoughts and beliefs. Whenever that type of fiction really works — as it does with Dostoyevsky’s The Brothers Karamazov — the character’s philosophy or worldview stands alone as a work of non-fiction. And so the novel becomes part fiction, part critical thought. It functions as a critique on ideas that circulate in the real world.

That’s what I hoped to achieve for Justice Rodney Sykes’s formal opinion in the novel’s Afterword. I wanted Rodney to reach a powerful critique of basic tenets of the American legal system. I wanted him to address what our responsibilities are (or aren’t) towards others in the legal system, and the problems with that system’s fundamental faith in individual actors. In his concurrence, Rodney takes an unorthodox and unlikely stance for a Supreme Court Justice, but that’s what makes it a work of fiction. A novel can be the perfect forum to discuss how a real person might come to a radical decision, and how that decision might revolutionize their thoughts and actions.

AM: Who are your favorite living writers?

AP:  I particularly admire J.M. Coetzee and Alice Munro. I think about their works often while I’m writing and editing my own.

Coetzee has written several fantastic “novels of ideas.” Both Diary of a Bad Year and Elizabeth Costello manage to incorporate far-reaching critiques into their larger stories about characters, and they do so while using imaginative formal techniques. I also love Coetzee’s cold and austere style in his less overtly intellectual books. They’re cleanly written, shockingly honest, and endlessly compelling.

Alice Munro—although it’s almost a cliché to praise her at this point—shows remarkable insight into her characters, gradually revealing their motivations, resentments and surprising decisions without ever erasing their fundamental mysteries as people. Her stories are complex formally, but in such a quiet way that I often don’t notice their structures until I’ve read them a few times. Her writing is a great model for how to show characters’ lives and decisions with efficiency and imagination while maintaining mystery.

AM: Do you intend to continue in the novel form in your own writing?

AP:  Absolutely. I would love to write more legal fiction, as well. I’ve spent years learning about the law, but know that I’ve barely scratched the surface. There are so many potentially interesting legal stories. I’m also at the early stages of a new novel, which is not explicitly about law, but does feel like an outgrowth of Al-Tounsi in certain ways.

AM: I worked for a state Supreme Court justice for over three years, and I agree: there are many interesting legal stories out there, and I’ve found that facts are often stranger than fiction.

AP:  It must be fascinating to work on the diverse cases that roll through a court. I can only imagine how many potential stories you and other lawyers, judges and court workers can recall—ideas for a million novels and movies and plays.

I think legal stories are particularly exciting for fiction because they distill big questions into concrete human situations and personalities. The giant subjects of guilt and innocence, love and betrayal, responsibilities towards others as opposed to ourselves, community or self-reliance, greed, jealousy and ambition all play out in specific facts and events, in the concrete details of a case. It’s just like in a novel. And since the American legal system is, in my mind, an application of an entire Enlightenment, philosophic worldview, these test cases and stories also pose huge philosophical, ethical and moral questions. It’s no coincidence some of the best novels ever written involve detailed legal plots.

AM:  That reminds me of something Justice Holmes once said: “Law opens a way to philosophy as well as anything else.”  But it sounds as if you and I would go further and say it might open a way better than many other things do.

AP:  Law is like applied philosophy; It puts general ideas to the test in the real world. If a philosophy remains theoretical it never really touches what it means to live it, inside it. The answers theoretical philosophy provides are always tentative.

A huge inspiration for my novel was the work of the late French philosopher, Emmanuel Levinas. While Levinas’s writing is often arcane and difficult to get through, I find his thinking to be a powerful and searing indictment of basic Enlightenment principles. While I was writing Al-Tounsi, I used Levinas’s insights—directly—to help me construct Justice Sykes’s final concurrence. It was hugely inspiring to find a concrete way to use this philosophy I have long loved. All the questions and problems I was interested in exploring were present in this genuine legal situation, in the constitutional habeas corpus case, Boumediene vs. Bush, on which I based my fictional case of Al-Tounsi vs. Shaw.

So, yes, I completely agree with you and Justice Holmes!

AM:  So glad we had this opportunity to talk.  Let’s do it again.  

 

 

Review of Brent J. Aucoin’s “Thomas Goode Jones: Race, Politics & Justice in the New South” (University of Alabama Press, 2016)

In America, American History, Arts & Letters, Book Reviews, Books, History, Humanities, Law, liberal arts, Politics, Scholarship, Southern History, The South on August 2, 2017 at 6:45 am

This review originally appeared in the Spring 2017 issue of the Journal of Faith and the Academy.

Brent J. Aucoin’s new biography is a probing treatment of the neglected figure of Thomas Goode Jones. To some, Jones is discredited because of his ownership of slaves and military leadership in the Confederate Army; to others, he’s a wounded war hero, distinguished jurist, and revered governor who sought reconciliation with former slaves. The truth, as always, is more complex.

Jones does not fit neatly into simplistic categories; he defies the trite labels of current political vocabulary. He even cut across partisan divides in his own day. His story is not a crude morality tale, nor does it contain clear lessons for posterity. Aucoin calls Jones “enigmatic.”  He seeks to consider Jones “holistically.” His studied reflection on Jones reveals a complicated man who’s both congenial and flawed, ahead of his time and yet a definite product of it.

Born in precarious circumstances in what today is Macon, Georgia, Jones had family roots in Virginia. His father, Samuel Goode Jones, worked for the railroad and moved the family from place to place, trying to earn an honest living. They settled in Montgomery when Samuel took a job there as an engineer. Thomas Jones was five at the time.  He and his family attended St. John’s Episcopal Church, downtown, where the pew in which Jefferson Davis worshipped remains intact, the other rows of pews having been replaced long ago.

A romantic childhood it was not. Jones was sent to Virginia to study at academies that fed into the Virginia Military Institute (VMI). He was groomed to be a soldier. By the time he enrolled at VMI, the Civil War had broken out, and he joined the ranks of his professor, Major General Thomas J. Jackson. Jones transferred units and worked his way up the chain of command, barely avoiding death on more than one occasion. Legend has it that, while riding horseback, he saved a wandering child during the heat of battle. This and other tales of heroism earned Jones the reputation as a valiant warrior. General Robert E. Lee himself selected Jones, among others, to deliver the flag of surrender to General Ulysses S. Grant at Appomattox Courthouse.

After the War, Jones returned to Alabama to begin a new career, or careers.  He married, sired 13 children, and enjoyed a rapid rise to fame and distinction, first as an editor of The Daily Picayune and later as a speaker, lawyer, and Democratic politician.  Believing it was God’s will for the South to fully reintegrate into the Union, he championed reunification, receiving honors and awards for his efforts to this end.  His celebrated 1874 Memorial Day Address was a reconciliatory precursor to that of Oliver Wendell Holmes Jr. a decade later.

Jones is known, in our day, mostly as a legislator, judge, and governor—and indeed the bulk of Aucoin’s book is dedicated to these periods of Jones’s life. Aucoin pays close attention to Jones’s often contradictory, always multifaceted, and sometimes disturbing views on race and race relations. Following Booker T. Washington, Aucoin says, “Jones eschewed the idea of a political solution to the so-called Negro problem—namely, the passage and enforcement of civil rights legislation—but also . . . opposed the political effort to disenfranchise blacks.”

Jones supported segregation of the races under a separate-but-equal scheme, yet he backed the creation of Alabama State University, a black college founded in 1867. He advocated the education of blacks to varying degrees, but his rhetoric on this topic can sound paternalistic and hollow to the modern ear. That he opposed educational prerequisites to voting, however, suggests he was willing to risk clout and status to take an unpopular stand on behalf of former slaves. He also, quite controversially at the time, sought to abolish the exploitative convict leasing system that carried with it the residual features of slavery.

Aucoin describes Jones’s politicking in great detail, from probable election fraud to campaigns for higher taxes. As governor, Jones decried the mob violence that had become common in Alabama. Later, as a judge, he attempted to charge a lynch mob under federal law.

Jones’s popularity waxed and waned. An economic crisis befell the state during his governorship, and workers from different industries began to strike. This once gallant soldier grew tired and frustrated and lost much of his charisma.  During one ceremony as governor, suffering from “cholera morbus,” he fell from his horse as he tried to dismount. Word of this clumsy incident spread quickly, and Jones was humiliated.

Yet he always drew admirers. His work on race relations, if not always courageous, was at least a step in the right direction. When he died, an unexpected number of blacks attended his funeral, watching solemnly. “Jones may not have been a hero,” Aucoin submits, “or someone on the good side who was unfaltering in his fight against evil, but there appears to be cause for concluding that he distinguished himself from the more rabid racist leaders of the South.”

The institution I work at bears the name of this curious man, whose bust is displayed prominently at the top of the stairs of the entry rotunda, looking down on the busy law faculty and students who come and go without the slightest concern for, or even knowledge of, his life. I’ve placed my copy of Aucoin’s biography beneath that bust with a short note: “Free copy. Learn about a fascinating person.”

It seemed like the right thing to do.

Four Poems by Julia Nunnally Duncan

In Arts & Letters, Books, Creative Writing, Humanities, Literature, Poetry, Writing on July 26, 2017 at 6:45 am

Julia Nunnally Duncan is an award-winning poet, novelist, short story writer and essay writer who has authored nine books of poetry, fiction, and nonfiction. Her works often reflect upon people and events from the past, and she draws inspiration from her Western North Carolina upbringing. She holds an M.F.A. from Warren Wilson College and lives in North Carolina with her husband and daughter.

The following poems come from Julia Nunnally Duncan’s latest book, A Part of Me, published by Red Dirt Press.

Note:  Julia Nunnally Duncan will read poetry from her latest book, A Part of Me, at Malaprop’s Bookstore and Cafe in the Poetrio event, 3:00 p.m. on August 6, 2017, Sunday. Address: 55 Hayward Street, Asheville, NC. For more information contact Malaprop’s at: 828-254-6734.

Click here to purchase on Amazon

His Song

He sat at the back of the classroom
during the weeks of our course
and remained quiet,
a student older than the rest.
He put forth his best effort
at grammar exercises and essay writing—
the Composition and Rhetoric assignments
that must have seemed unfair
to a man whose life work would be
to install and repair electrical systems.
Yet he was eager to learn,
occasionally staying after class
to ask if he was on the right track.
And when for his process speech
he came in with a guitar
and pulled up a stool,
I feared it would be hard
for him to speak in front of the group.
But after a few words about how to string
and tune a guitar,
he began to sing a country ballad
with lyrics so romantic and a voice so tender
that I blushed.
When he finished his song,
the class was hushed for a moment
and then burst into applause.
All I could whisper was beautiful
and ask, “Where did you learn to sing that way?”
He didn’t say anything,
and his eyes didn’t meet mine.
His face down, he went quickly to his seat
to reclaim his humble place
at the back of the room.
That was years ago,
and though now I don’t recall his name,
that day and his song
will stay in my memory.

 

December Evening

I was young and a little afraid
of the residents at the nursing home
who sat in the dining hall,
awaiting the Christmas treats my church had brought.
A white-haired lady growled, “I don’t want no cake!”
but devoured a hefty piece and would have eaten more
if not for the staff who feared it would make her sick.
They all ate quickly,
then gathered in the common room
where an upright piano stood beside the decorated tree.
I played Christmas carols and familiar melodies—
“Away in a Manger” and “Rudolph the Red-Nosed Reindeer.”
A man stooped over me and crooned perfect lyrics
while others in their pajamas made up words as they went.
And so we spent time sharing food, and gifts, and song,
my fear of them gone,
that December evening forty years ago.

 

Paul’s Prayers

Often the preacher asked my uncle Paul
to lead us in prayer,
and our Baptist congregation grew still.
But when Paul’s baritone voice filled the sanctuary,
those compelled by the Spirit exclaimed Amen.
Paul proclaimed our gratitude for God’s blessings
and begged protection for our boys in foreign fields,
the Vietnam War having spilled the blood
of some from our community.
Two decades before,
Paul had been a young man
serving in North Africa in another war
that mangled his shoulder with shrapnel.
For weeks he lay in a VA hospital
and then fell back into his dissolute life.
But one day he found salvation
and thus began to pray for himself
and for all the rest of us.
Paul knew how to do it well.

 

President Ulysses S. Grant Three Days Before
Death From Throat Cancer July 20, 1885

Maybe because he was a skilled horseman
or that he loved his wife Julia so dearly
or that his last name was the same
as that of my great-great grandfather Samuel Bruce Grant
who also fought in the Civil War,
though on the opposing side—
maybe these are reasons why
I have looked at Ulysses S. Grant
not as an enemy of my Southern ancestors,
but as possible distant kin.
In the photograph
he sits in a rocking chair
on the front porch of his country home,
and he is surrounded by family.
His shoulders are draped in a shawl,
his face looks pale and gaunt,
and his beard has grown gray;
but his shiny top hat
seems a fashionable affront to the disease
that will soon take him away.
While the young girls in the picture look bored,
the women smile lightly,
as if to add an impression of gaiety to the scene.
But it is in Grant’s face—
his weary expression—
that I glean the truth.

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?

 

 

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