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abolitionism, Andrew Jackson, Arguing About Slavery, “the common man”, District of Columbia, Elizur Wright Jr., Franklin Pierce, Henry Laurens Pinckney, James Henry Hammond, James K. Polk, John C. Calhoun, John Fairfield, John Greenleaf Whittier, John Quincy Adams, Martin Van Buren, Slavery, The gag rule, The Great Battle in the United States Congress, U.S. House of Representatives, U.S. Senate, William Lee Miller, William Lloyd Garrison

Book Synopsis: Miller, William Lee. Arguing About Slavery: The Great Battle in the United States Congress. New York: Alfred A. Knopf, 1996.

In America, American History, Arts & Letters, Book Reviews, Books, Historicism, History, Humanities, Law, Nineteenth-Century America, Politics, Scholarship, Slavery, Southern History, The South on October 30, 2013 at 8:45 am

This is the story of America’s struggle to end slavery without destroying the union. The book deliberately focuses on the rhetoric of white male politicians and thus does not purport to tell the “whole” story, but only that part of the story which is most recoverable and hence most knowable. Many early 19th century politicians averred that the Northern textile industry, which was roughly as powerful as today’s oil industry, depended on Southern slavery. An industry with such power and control over the financial interests of the country can, Miller argues, cause social changes to come about more slowly. When talking about slavery, Miller submits, American politicians of the time had to deal with inherent contradictions in the American tradition: a nation that celebrated equality and the virtues of the “common man” had to come to terms with the fact that African slaves, officially excluded from citizenry, embodied the “common man” ideal but were not permitted to climb the social and economic ladder. Most politicians did not believe slavery could end abruptly but would end gradually as economic dependence turned elsewhere. Slavery went against all the principles and rhetoric of America’s founding documents, and yet there it was, a thriving and ubiquitous industry.

The book begins in 1835, when Congress deliberated over petitions to abolish slavery in the District of Columbia. Congress took on these petitions reluctantly, unwilling to address a contentious and divisive issue that would disrupt congressional and governmental harmony. Congress wished the issue would just go away—but realized that it could not. During this congressional session, most of the speechmaking came from proslavery Southerners, since Northern politicians were, generally, too afraid to take a stand one way or the other.

Major figures from this session include the following:

President Andrew Jackson

John Fairfield: Congressman from Vermont who introduces the petitions to abolish slavery in D.C.

Franklin Pierce: Eventually the fourteenth President, he is, at this time, serving in the U.S. House of Representatives. He is a Northerner with Southern sympathies.

James Henry Hammond: Congressman from South Carolina who opposed Fairfield and Adams.

John Quincy Adams: A former president (the nation’s sixth), he is, at this time, a U.S. Representative from Massachusetts.

Henry Laurens Pinckney: A Congressman from South Carolina who opposed Fairfield and Adams but who also did not get along with John C. Calhoun.

John C. Calhoun: A U.S. Senator from South Carolina, having resigned from the Vice Presidency.

Martin Van Buren: Eventually a U.S. President (the nation’s eighth), he is, at this time, the Vice President under Andrew Jackson.

James K. Polk: Eventually a U.S. President (the nation’s eleventh), he is, at this time, a member of the U.S. House from the State of Tennessee.

The debates in Congress were fueled by abolitionist literature (written by people like John Greenleaf Whittier, William Lloyd Garrison, and Elizur Wright, Jr.) and oration that maintained not only that slavery was wrong (as people had maintained for decades) but also that its demise was the nation’s highest priority. Congress could not “sit on its hands” while abolitionists protested and demanded change; it had to respond, albeit reluctantly, to an institution that many congressmen assumed was already doomed. The demise of slavery was supposed to be inevitable, according to the common logic, yet it persisted; therefore, the abolitionists forced Congress to address slavery, the demise of which, the abolitionists argued, was not as inevitable as people supposed.

The Senate also faced petitions. Senator Calhoun became the most colorful and powerful figure opposing these positions. Calhoun and his followers often employed “liberal” rhetoric on the Senate floor. Henry Laurens Pinckney authored the gag rule, which was an attempt to stop citizens from submitting antislavery petitions. (Calhoun despised Pinckney so much that he endorsed unionist candidates to take over Pinckney’s Congressional seat.) The gag rule was adopted by a 117-68 vote, thus suggesting that the nation was more united on the issue of slavery than popular thought maintains. The gag rule required congressmen to set aside slavery petitions immediately, without so much as printing them. John Quincy Adams would spend the following years in Congress battling the so-called gag rule.

At this point in the book, Adams becomes the central figure. Adams, then a distinguished ex-president, was in his 60s and 70s as he fought against the gag order. He maintained that not only abolitionists but also slaves could petition. Miller argues that this position shows the extent to which Adams was willing to risk his reputation and what was left of his career in order to stand up to the Southern gag order. Other congresspersons were slow to join Adams in his fight. During these debates, very little was said of African Americans, and most of the debates focused on the rights and roles of government and ignored the human persons that that government was supposed to serve and protect.

After Martin Van Buren became president, succeeding Andrew Jackson, he announced that he would veto any bill involving the issue of slavery in D.C. or the slave states. Nevertheless, the petitions continued to pour in. Adams himself began submitting petitions. The gag resolutions had to be passed each session, but a gag rule was announced in 1840 that, in essence, made the “gagging” permanent. Adams led the effort to rescind this rule. He grew closer and closer to the abolitionists as he precipitated disarray in the House. He also made several speeches despite threats against his life. Adams’s opponents tried to get the entire House to censure him, but they failed. Adams used the censure trials as an occasion to bring slavery to the forefront of Congressional debate. In 1844, Adams succeeded in having the gag rule abolished.

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And Wait for the Night, Another World, “Are Southerners Different?”, Battle for the Planet of the Apes, Capitol, Centenary College, Charles Bukowski, Cleanth Brooks, Decoration Day, Donald E. Stanford, Eric Voeglin, Friedrich von Hayek, General Hospital, I am Legend, James Dickey, James Elkins, John William Corrington, Joyce Corrington, Lewis P. Simpson, Lines to the South and Other Poems, Louisiana State University, Mark Royden Winchell, Mel Bradford, Memphis, One Life to Live, Rice University, Robert Heilman, Robert Penn Warren, Stanford University, Superior Court, Tennessee, Texas, The Bombardier, The Sewanee Review, The Southern Review, The Unvanquished, The Upper Hand, West Virginia University College of Law, William Faulkner

John William Corrington, A Literary Conservative

In American History, Arts & Letters, Conservatism, Creative Writing, Essays, Fiction, History, Humanities, John William Corrington, Joyce Corrington, Law, Literary Theory & Criticism, Literature, Modernism, Southern History, Southern Literature, Television, Television Writing, The Novel, The South, Western Philosophy, Writing on October 23, 2013 at 8:45 am

An earlier version of this essay appeared here at Fronch Porch Republic.

Remember the printed prose is always

half a lie: that fleas plagued patriots,

that greatness is an afterthought

affixed by gracious victors to their kin.

—John William Corrington

It was the spring of 2009. I was in a class called Lawyers & Literature. My professor, Jim Elkins, a short-thin man with long-white hair, gained the podium. Wearing what might be called a suit—with Elkins one never could tell—he recited lines from a novella, Decoration Day. I had heard of the author, John William Corrington, but only in passing.

“Paneled walnut and thick carpets,” Elkins beamed, gesturing toward the blank-white wall behind him, “row after row of uniform tan volumes containing between their buckram covers a serial dumb show of human folly and greed and cruelty.” The students, uncomfortable, began to look at each other, registering doubt. In law school, professors didn’t wax poetic. But this Elkins—he was different. With swelling confidence, he pressed on: “The Federal Reporter, Federal Supplement, Supreme Court Reports. Two hundred years of our collective disagreements and wranglings from Jay and Marshall through Taney and Holmes and Black and Frankfurter—the pathetic often ill-conceived attempts to resolve what we have done to one another.”

Elkins paused. The room went still. Awkwardly profound, or else profoundly awkward, the silence was like an uninvited guest at a dinner party—intrusive, unexpected, and there, all too there. No one knew how to respond. Law students, most of them, can rattle off fact-patterns or black-letter-law whenever they’re called on. But this? What were we to do with this?

What I did was find out more about John Willliam Corrington. Having studied literature for two years in graduate school, I was surprised to hear this name—Corrington—in law school. I booted up my laptop, right where I was sitting, and, thanks to Google, found a few biographical sketches of this man, who, it turned out, was perplexing, riddled with contradictions: a Southerner from the North, a philosopher in cowboy boots, a conservative literature professor, a lawyer poet. This introduction to Corrington led to more books, more articles, more research. Before long, I’d spent over $300 on Amazon.com. And I’m not done yet.

***

Born in Cleveland, Ohio, on October 28, 1932, Corrington—or Bill, as his friends and family called him—passed as a born-and-bred Southerner all of his life. As well he might, for he lived most of his life below the Mason-Dixon line, and his parents were from Memphis and had moved north for work during the Depression. He moved to the South (to Shreveport, Louisiana) at the age of 10, although his academic CV put out that he was, like his parents, born in Memphis, Tennessee. Raised Catholic, he attended a Jesuit high school in Louisiana but was expelled for “having the wrong attitude.” The Jesuit influence, however, would remain with him always. At the beginning of his books, he wrote, “AMDG,” which stands for Ad Majorem Dei Gloriam—“for the greater glory of God.” “It’s just something that I was taught when I was just learning to write,” he explained in an interview in 1985, “taught by the Jesuits to put at the head of all my papers.”

Bill was, like the late Mark Royden Winchell, a Copperhead at heart, and during his career he authored or edited, or in some cases co-edited, twenty books of varying genres. He earned a B.A. from Centenary College and M.A. in Renaissance literature from Rice University, where he met his wife, Joyce, whom he married on February 6, 1960. In September of that year, he and Joyce moved to Baton Rouge, where Bill became an instructor in the Department of English at Louisiana State University (LSU). At that time, LSU’s English department was known above all for The Southern Review (TSR), the brainchild of Cleanth Brooks and Robert Penn Warren, but also for such literary luminaries as Robert Heilman, who would become Bill’s friend.

In the early 1960s, Bill pushed for TSR to feature fiction and poetry and not just literary criticism. He butted heads with then-editors Donald E. Stanford and Lewis P. Simpson, who thought of the journal as scholarly, not creative, as if journals couldn’t be both scholarly and creative. A year after joining the LSU faculty, Bill published his first book of poetry, Where We Are. With only 18 poems and 225 first edition printings, the book hardly established Bill’s reputation as Southern man of letters. But it invested his name with recognition and gave him confidence to complete his first novel, And Wait for the Night (1964).

Bill and Joyce spent the 1963-64 academic year in Sussex, England, where Bill took the D.Phil. from the University of Sussex in 1965. In the summer of 1966, at a conference at Northwestern State College, Mel Bradford, that Dean of Southern Letters, pulled Bill aside and told him, enthusiastically, that And Wait for the Night (1964) shared some of the themes and approaches of William Faulkner’s The Unvanquished. Bill agreed. And happily.

***

Of Bill and Miller Williams, Bill’s colleague at LSU, Jo LeCoeur, poet and literature professor, once submitted, “Both men had run into a Northern bias against what was perceived as the culturally backward South. While at LSU they fought back against this snub, editing two anthologies of Southern writing and lecturing on ‘The Dominance of Southern Writers.’ Controversial as a refutation of the anti-intellectual Southern stereotype, their joint lecture was so popular [that] the two took it on the road to area colleges.”

In this respect, Bill was something of a latter-day Southern Fugitive—a thinker in the tradition of Donald Davidson, Allan Tate, Andrew Nelson Lytle, and John Crowe Ransom. Bill, too, took his stand. And his feelings about the South were strong and passionate, as evidenced by his essay in The Southern Partisan, “Are Southerners Different?” (1984). Bill’s feelings about the South, however, often seemed mixed. “[T]he South was an enigma,” Bill wrote to poet Charles Bukowski, “a race of giants, individualists, deists, brainy and gutsy: Washington, Jefferson, Madison, Jackson (Andy), Davis, Calhoun, Lee, and on and on. And yet the stain of human slavery on them.” As the epigraph (above) suggests, Bill was not interested in hagiographic renderings of Southern figures. He was interested in the complexities of Southern people and experience. In the end, though, there was no doubt where his allegiances lay. “You strike me as the most unreconstructed of all the Southern novelists I know anything about,” said one interviewer to Bill. “I consider that just about the greatest compliment anyone could give,” Bill responded.

While on tour with Williams, Bill declared, “We are told that the Southerner lives in the past. He does not. The past lives in him, and there is a difference.” The Southerner, for Bill, “knows where he came from, and who his fathers were.” The Southerner “knows still that he came from the soil, and that the soil and its people once had a name.” The Southerner “knows that is true, and he knows it is a myth.” And the Southerner “knows the soil belonged to the black hands that turned it as well as it ever could belong to any hand.” In short, the Southerner knows that his history is tainted but that it retains virtues worth sustaining—that a fraught past is not reducible to sound bites or political abstractions but is vast and contains multitudes.

***

In 1966, Bill and Joyce moved to New Orleans, where the English Department at Loyola University, housed in a grand Victorian mansion on St. Charles Avenue, offered him a chairmanship. Joyce earned the M.S. in chemistry from LSU that same year. By this time, Bill had written four additional books of poetry, the last of which, Lines to the South and Other Poems (1965), benefited from Bukowski’s influence. Bill’s poetry earned a few favorable reviews but not as much attention as his novels—And Wait for the Night (1964), The Upper Hand (1967), and The Bombardier (1970). Writing in The Massachusetts Review, Beat poet and critic Josephine Miles approvingly noted two of Bill’s poems from Lines, “Lucifer Means Light” and “Algerien Reveur,” alongside poetry by James Dickey, but her comments were more in passing than in depth. Dickey himself, it should be noted, admired Bill’s writing, saying, “A more forthright, bold, adventurous writer than John William Corrington would be very hard to find.”

Joyce earned her PhD in chemistry from Tulane in 1968. Her thesis, which she wrote under the direction of L. C. Cusachs, was titled, “Effects of Neighboring Atoms in Molecular Orbital Theory.” She began teaching chemistry at Xavier University, and her knowledge of the hard sciences brought about engaging conservations, between her and Bill, about the New Physics. “Even though Bill only passed high school algebra,” Joyce would later say, “his grounding in Platonic idealism made him more capable of understanding the implications of quantum theory than many with more adequate educations.”

By the mid-70s, Bill had become fascinated by Eric Voeglin. A German historian, philosopher, and émigré who had fled the Third Reich, Voegelin taught in LSU’s history department and lectured for the Hoover Institution at Stanford University, where he was a Salvatori Fellow. Voeglin’s philosophy, which drew from Friedrich von Hayek and other conservative thinkers, inspired Bill. In fact, Voegelin made such a lasting impression that, at the time of Bill’s death, Bill was working on an edition of Voegelin’s The Nature of the Law and Related Legal Writings. (After Bill’s death, two men—Robert Anthony Pascal and James Lee Babin—finished what Bill had begun. The completed edition appeared in 1991.)

By 1975, the year he earned his law degree from Tulane, Bill had penned three novels, a short story collection, two editions (anthologies), and four books of poetry. But his writings earned little money. He also had become increasingly disenchanted with the political correctness on campus:

By 1972, though I’d become chair of an English department and offered a full professorship, I’d had enough of academia. You may remember that in the late sixties and early seventies, the academic world was hysterically attempting to respond to student thugs who, in their wisdom, claimed that serious subjects seriously taught were “irrelevant.” The Ivy League gutted its curriculum, deans and faculty engaged in “teach-ins,” spouting Marxist-Leninist slogans, and sat quietly watching while half-witted draft-dodgers and degenerates of various sorts held them captive in their offices. Oddly enough, even as this was going on, there was a concerted effort to crush the academic freedom of almost anyone whose opinions differed from that of the mob or their college-administrator accessories. It seemed a good time to get out and leave the classroom to idiots who couldn’t learn and didn’t know better, and imbeciles who couldn’t teach and should have known better.

Bill joined the law firm of Plotkin & Bradley, a small personal injury practice in New Orleans, and continued to publish in such journals as The Sewanee Review and The Southern Review, and in such conservative periodicals as The Intercollegiate Review and Modern Age. His stories took on a legal bent, peopled as they were with judges and attorneys. But neither law nor legal fiction brought him fame or fortune.

So he turned to screenplays—and, at last, earned the profits he desired. Viewers of the recent film I am Legend (2007), starring Will Smith, might be surprised to learn that Bill and Joyce wrote the screenplay for the earlier version, Omega Man (1971), starring Charlton Heston. And viewers of Battle for the Planet of the Apes (1973) might be surprised to learn that Bill wrote the film’s screenplay while still a law student. All told, Bill and Joyce wrote five screenplays and one television movie. Free from the constraints of university bureaucracy, Bill collaborated with Joyce on various television daytime dramas, including Search for Tomorrow, Another World, Texas, Capitol, One Life to Live, Superior Court, and, most notably, General Hospital. These ventures gained the favor of Hollywood stars, and Bill and Joyce eventually moved to Malibu.

Bill constantly molded and remolded his image, embracing Southern signifiers while altering their various expressions. His early photos suggest a pensive, put-together gentleman wearing ties and sport coats and smoking pipes. Later photos depict a rugged man clad in western wear. Still later photos conjure up the likes of Roy Orbison, what with Bill’s greased hair, cigarettes, and dark sunglasses.

Whatever his looks, Bill was a stark, provocative, and profoundly sensitive writer. His impressive oeuvre has yet to receive the critical attention it deserves. That scholars of conservatism, to say nothing of scholars of Southern literature, have ignored this man is almost inconceivable. There are no doubt many aspects of Bill’s life and literature left to be discovered. As Bill’s friend William Mills put it, “I believe there is a critique of modernity throughout [Bill’s] writing that will continue to deserve serious attentiveness and response.”

On Thanksgiving Day, November 24, 1988, Bill suffered a heart attack and died. He was 56. His last words, echoing Stonewall Jackson, were, “it’s all right.”

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Allen Mendenhall, computer forensics, E-discovery, Hacking, Pacific Standard, Pen Registers and Trap and Trace Devices Statute, privacy, Scholarship, Stored Wired and Electronic Communication Act, Wiretap Act

Is Hacking the Future of Scholarship?

In Arts & Letters, Communication, Humanities, Information Design, Law, Legal Research & Writing, Scholarship, Writing on October 16, 2013 at 7:45 am

This article appeared here in Pacific Standard.

Most attorneys are familiar with e-discovery, a method for obtaining computer and electronic information during litigation. E-discovery has been around a long time. It has grown more complex and controversial, however, with the rise of new technologies and the growing awareness that just about anything you do online or with your devices can be made available to the public. Emails, search histories, voicemails, instant messages, text messages, call history, music playlists, private Facebook conversations (not just wall posts)—if relevant to a lawsuit, these and other latent evidence, for better or worse, can be exposed, even if you think they’ve been hidden or discarded.

Anyone who has conducted or been involved with e-discovery realizes how much personal, privileged, and confidential information is stored on our devices. When you “delete” files and documents from your computer, they do not go away. They remain embedded in the hard drive; they may become difficult to find, but they’re there. Odds are, someone can access them. Even encrypted files can be traced back to the very encryption keys that created them.

E-discovery has been used to uncover registries and cache data showing that murderers had been planning their crimes, spouses had been cheating, perverts had been downloading illegal images, and employees had been stealing or compromising sensitive company data or destroying intellectual property. Computer forensics were even used to reveal medical documents from Dr. Conrad Murray’s computer during the so-called “Michael Jackson death trial.”

Computer forensics can teach you a lot about a person: the websites he visits, the people he chats with, the rough drafts he abandons, the videos he watches, the advertisements he clicks, the magazines he reads, the news networks he prefers, the places he shops, the profiles he views, the songs he listens to, and so on. It is fair to say that given a laptop hard drive, a forensic expert could nearly piece together an individual’s personality and perhaps come to know more about that person—secret fetishes, guilty pleasures, and criminal activities—than his friends and family do.

In light of this potential access to people’s most private activities, one wonders how long it will be until academics turn to computer forensics for research purposes. This is already being done in scientific and technology fields, which is not surprising because the subject matter is the machine and not the human, but imagine what it would mean for the humanities? If Jefferson had used a computer, perhaps we would know the details of his relationship with Sally Hemings. If we could get ahold of Shakespeare’s iPad, we could learn whether he wrote all those plays by himself. By analyzing da Vinci’s browsing history, we might know which images he studied and which people he interacted with before and during his work on the Mona Lisa—and thus might discover her identity.

There are, of course, government safeguards in place to prevent the abuse of, and unauthorized access to, computer and electronic data: the Wiretap Act, the Pen Registers and Trap and Trace Devices Statute, and the Stored Wired and Electronic Communication Act come to mind. Not just anyone can access everything on another person’s computer, at least not without some form of authorization. But what if researchers could obtain authorization to mine computer and electronic data for the personal and sensitive information of historical figures? What if computer forensics could be used in controlled settings and with the consent of the individual whose electronic data are being analyzed?

Consent, to me, is crucial: It is not controversial to turn up information on a person if he voluntarily authorized you to go snooping, never mind that you might turn up something he did not expect you to find. But under what circumstances could computer forensics be employed on a non-consensual basis? And what sort of integrity does computer or electronic information require and deserve? Is extracting data from a person’s laptop akin to drilling through a precious fresco to search for lost paintings, to excavating tombs for evidence that might challenge the foundations of organized religion and modern civilization, or to exhuming the bodies of dead presidents? Surely not. But why not?

We have been combing through letters by our dead predecessors for some time. Even these, however, were meant for transmission and had, to that end, intended audiences. E-discovery, by contrast, provides access to things never meant to be received, let alone preserved or recorded. It is the tool that comes closest to revealing what an individual actually thinks, not just what he says he thinks, or for that matter, how and why he says he thinks it. Imagine retracing the Internet browsing history of President Obama, Billy Graham, Kenneth Branagh, Martha Nussbaum, Salmon Rushdie, Nancy Pelosi, Richard Dawkins, Toni Morrison, Ai Weiwei, or Harold Bloom. Imagine reading the private emails of Bruno Latour, Ron Paul, Pope Francis, Noam Chomsky, Lady Gaga, Roger Scruton, Paul Krugman, Justice Scalia, or Queen Elizabeth II. What would you find out about your favorite novelists, poets, musicians, politicians, theologians, academics, actors, pastors, judges, and playwrights if you could expose what they did when no one else was around, when no audience was anticipated, or when they believed that the details of their activity were limited to their person?

This is another reason why computer and electronic data mining is not like sifting through the notes and letters of a deceased person: having written the notes and letters, a person is aware of their content and can, before death, destroy or revise what might appear unseemly or counter to the legacy he wants to promote. Computer and electronic data, however, contain information that the person probably doesn’t know exists.

More information is good; it helps us to understand our universe and the people in it. The tracking and amassing of computer and electronic data are inevitable; the extent and details of their operation, however, cannot yet be known. We should embrace—although we don’t have to celebrate—the technologies that enable us to produce this wealth of knowledge previously unattainable to scholars, even if they mean, in the end, that our heroes, idols, and mentors are demystified, their flaws and prejudices and conceits brought to light.

The question is, when will we have crossed the line? How much snooping goes too far and breaches standards of decency and respect? It is one thing for a person to leave behind a will that says, in essence, “Here’s my computer. Do what you want with it. Find anything you can and tell your narrative however you wish.” It is quite another thing for a person never to consent to such a search and then to pass away and have his computer scanned for revealing or incriminating data.

It’s hard to say what crosses the line because it’s hard to know where the line should be drawn. As Justice Potter Stewart said of hard-core pornography, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.” Once scholars begin—and the day is coming—hacking devices to find out more about influential people, the courts and the academic community will be faced with privacy decisions to make. We will have to ask if computer and electronic data are substantially similar to private correspondence such as letters, to balance the need for information with the desire for privacy, to define what information is “private” or “public,” and to honor the requests of those savvy enough to anticipate the consequences of this coming age of research.

Amid this ambiguity, one thing will be certain: Soon we can all join with Princess Margaret in proclaiming, “I have as much privacy as a goldfish in a bowl.” That is good and bad news.

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Academic Questions, Georgetown Journal of Law & Public Policy, Harvard Journal of Law and Public Policy, Humanities, Law Review, Peer Review, Texas Review of Law & Politics, The Law Review Model as a Check against Bias?

The Law Review Model as a Check against Bias?

In Academia, Arts & Letters, Essays, Humanities, Law, Scholarship, Writing on October 9, 2013 at 7:45 am

A version of this essay appeared in Academic Questions.

Could peer-reviewed humanities journals benefit by having student editors, as is the practice for law reviews? Are student editors valuable because they are less likely than peer reviewers to be biased against certain contributors and viewpoints? I begin with a qualifier: What I am about to say is based on research, anecdotes, and experience rather than empirical data that I have compiled on my own. I do not know for sure whether student editors are more or less biased than professional academics, and I hesitate to displace concerns for expertise and experience with anxiety about editorial bias. There may be situations in which students can make meaningful contributions to reviewing and editing scholarship—and to scholarship itself—but to establish them as scholarly peers is, I think, a distortion and probably a disservice to them and their fields.

Student editors of and contributors to law reviews may seem to be the notable exception, but legal scholarship is different from humanities scholarship in ways I address below, and law reviews suffer from biases similar to those endemic to peer-reviewed journals. Nevertheless, law review submission and editing probably have less systemic bias than peer-reviewed journals, but not because students edit them. Rather, law review submission and editing make it more difficult for bias to occur. The system, not the students, facilitates editorial neutrality.

There are several factors about this system that preclude bias. Because editors are students in their second and third year of law school, editorial turnover is rapid. Every year a law review has a new editorial team composed of students with varied interests and priorities. What interested a journal last year will be different this year. Therefore, law reviews are not likely to have uniform, long-lasting standards for what and whom to publish—at least not with regard to ideology, political persuasion, or worldview.

Law review editors are chosen based on grades and a write-on competition, not because they are likeminded or pursuing similar interests. Therefore, law reviews are bound to have more ideological and topical diversity than peer-reviewed journals, which are premised upon mutual interest, and many of which betray the academic side of cronyism: friends and friends of friends become editors of peer-reviewed journals notwithstanding a record of scholarship. The composition of law review editorial boards is, by contrast, based upon merit determined through heated competition.

Once on board, law review student editors continue to compete with one another, seeking higher ranks within editorial hierarchies.[1] Being the editor-in-chief or senior articles editor improves one’s résumé and looks better to potential employers than being, say, the notes editor. Voting or evaluations of academic performance establish the hierarchies. Moreover, each year only a few student articles are published, so editors are competing with one another to secure that special place for their writing.[2] Finally, student editors usually receive grades for their performance on law review. The result of all of this competition is that law review editors are less able than peer reviewers to facilitate ideological uniformity or to become complacent in their duties—and law reviews will exhibit greater ideological diversity and publish more quickly and efficiently than peer-reviewed journals.

Because of the ample funding available to law schools, scores of specialized journals have proliferated to rival the more traditional law reviews. Many specialized law reviews were designed to compensate for alleged bias. There are journals devoted to women’s issues, racial issues, law and literature, law and society, critical legal studies, and so on. There are also journals aimed principally at conservatives: Harvard Journal of Law and Public Policy, Texas Review of Law & Politics, and Georgetown Journal of Law & Public Policy, to name three. Specialized journals give students and scholars a forum for the likeminded. On the other hand, such journals call for specialization, which students are unlikely to possess.[3]

For these reasons, I believe that bias is less prevalent among law reviews than among peer-reviewed journals. Part of the difficulty in determining bias, however, is that data collection depends upon the compliance of law review editors, who receive and weed through thousands of submissions per submission period and have neither the time nor the energy to compile and report data about each submission. Moreover, these editors, perhaps in preparation for likely careers as attorneys, are often required to maintain strict confidentiality regarding authors and submissions, thereby making “outside” studies of law reviews extremely difficult to conduct.

And then there is the problem of writing about bias at all: everyone can find bias in the system. I suspect that institutionalized bias against conservative legal scholars exists, but nonconservatives also complain about bias. Minna J. Kotkin has suggested that law reviews are biased against female submitters.[4] Rachel J. Anderson has suggested that law reviews are biased against “dissent scholarship,” which, she says, includes “civil rights scholarship, critical legal studies, critical race theory, feminist theory, public choice theory, queer theory, various ‘law ands’ scholarship that employs quantitative or humanistic methodologies, and other scholarship that, at one point in time or another, is not aligned with ideologies or methodologies that the reader values or considers legitimate.”[5] Finally, Jordan Leibman and James White discovered bias favoring authors with credentials, publication records, or experience.[6]

Law student bias seems, from my perspective, more likely to be weighted toward credentials and reputation rather than political persuasion.[7] An established professor with an endowed chair is therefore more likely to receive a publication offer from a law review than an unknown, young, or adjunct professor; and the name recognition of an author—regardless of personal politics—is more likely to guarantee that author a publication slot in a law review. One downside to this is that student editors will accept half-written or ill-formed articles simply because the author is, for want of a better word, renowned. It is common in these situations for students to then ghostwrite vast portions of the article for the author. Another more obvious downside is that professors from select institutions and with certain reputations will be published over authors who have submitted better scholarship. This is the primary reason why I advocate for a hybrid law review/peer review approach to editing.[8]

I’ve mentioned that legal scholarship differs from humanities scholarship. What makes it different is its attention to doctrinal matters, i.e., to the application of law to facts or the clarifying of legal principles and canons. After their first year of law school, students are equipped to study these sorts of matters. They are not unlike lawyers who approach a legal issue for the first time and must learn to analyze the applicable law in light of the given facts. Although the breadth and scope of legal scholarship have changed to reduce the amount of doctrinal scholarship produced and to incorporate interdisciplinary studies, doctrinal scholarship remains the traditional standard and the conventional norm.

Law students have the facility to edit doctrinal scholarship, but not to edit interdisciplinary articles.[9] This point is not necessarily to advance my argument about bias being less inherent in law review editing; rather, it is to circle back to my initial position that inexperienced and inexpert students should not be empowered to make major editorial decisions or to control the editing. As I have suggested, student editors are biased, just as professional peer reviewers are biased—the problem is that students are less prepared and qualified to make sound editorial judgments. If what is needed is an editorial system that diminishes bias, then student editors are not the solution. Law review editing, however, provides a clarifying model for offsetting widespread bias.

It would be difficult if not impossible to implement law review editing among humanities peer-reviewed journals for the disappointing reason that law reviews enjoy ample funding from institutions, alumni, and the legal profession whereas humanities journals struggle to budget and fight for funding. Therefore, I will not venture to say that peer-reviewed journals ought to do something about their bias problems by mimicking law review editing. Such a solution would not be practical. But by pointing out the benefits of law review editing—i.e., the result of less bias due to such factors as competition and turnover in editorial positions—I hope that more creative minds than mine will discover ways to reform peer-reviewed journals to minimize bias.

[1]I consider editor selection flawed for some of the reasons Christian C. Day describes in “The Case for Professionally-Edited Law Reviews,” Ohio Northern University Law Review 33 (2007): 570–74.

[2]How this competition works differs from journal to journal. In some cases, the students select which student articles to publish based on an elaborate voting process supposedly tied to blind review and authorial anonymity. In other cases, faculty decide.

[3]“Many scholars feel that student editors of law review articles, while they were perhaps once competent to evaluate the merit of scholarly articles owing to the much narrower range of topics, have for the last few decades had great difficulty grappling with nondoctrinal scholarship (that is, scholarship dealing with the intersection of law and other disciplines). The authors of law journal articles now increasingly draw from areas such as economics, gender studies, literary theory, sociology, mathematics, philosophy, political theory, and so on, making the enterprise much too difficult for a group of generally young people, who are not only not specialists, but have barely entered the field of law.” Nancy McCormack, “Peer Review and Legal Publishing: What Law Librarians Need to Know about Open, Single-Blind, and Double-Blind Reviewing,” Law Library Journal 101, no. 1 (Winter 2009): 61–62.

[4]Minna J. Kotkin, “Of Authorship and Audacity: An Empirical Study of Gender Disparity and Privilege in the ‘Top Ten’ Law Reviews,” Women’s Rights Law Reporter 35 (Spring 2009).

[5]Rachel J. Anderson, “From Imperial Scholar to Imperial Student: Minimizing Bias in Article Evaluation by Law Reviews,” Hastings Women’s Law Journal 20, no. 2 (2009): 206.

[6]Jordan H. Leibman and James P. White, “How the Student-Edited Law Journals Make Their Publication Decisions,” Journal of Legal Education 39, no. 3 (September 1989): 396, 404.

[7]Many others share this view: “It appears to be generally assumed that, to a significant degree, Articles Editors use an author’s credentials as a proxy for the quality of her scholarship.” Jason P. Nance and Dylan J. Steinberg, “The Law Review Article Selection Process: Results from a National Study,” Albany Law Review 71, no. 2 (2008): 571.

[8]See my Spring 2013 Academic Questions article, “The Law Review Approach: What the Humanities Can Learn.” I am not alone on this score. Day suggests that “this bias can be defeated by blind submissions or having faculty members read the abstracts and articles of blind-submitted articles where the quality is unknown. The names and other identifying information should be obscured, which is common in other disciplines. This is easy to do with electronic submissions. It should be the rule in law reviews, at least at the initial stage of article selection.” “Case for Law Reviews,” 577.

[9]Hence Richard Posner’s suggestion that law reviews “should give serious consideration to having every plausible submission of a nondoctrinal piece refereed anonymously by one or preferably two scholars who specialize in the field to which the submission purports to contribute.” “The Future of the Student-Edited Law Review,” Stanford Law Review 47 (Summer 1995): 1136.

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"Economic Control and Totalitarianism”, Austrian Economics, “The Great Utopia”, Capitalism, Friedrich Hayek, Krugman, Liberalism, Libertarianism, Marx, planned economy, Rousseau, Slade Mendenhall, Stiglitz, Sunstein, The Road to Serfdom

Thoughts on ‘The Road to Serfdom’: Chapter 7, “Economic Controls and Totalitarianism”

In Arts & Letters, Austrian Economics, Book Reviews, Books, Conservatism, Economics, Epistemology, Essays, History, Humane Economy, Humanities, Justice, Law, Libertarianism, Literature, Philosophy, Western Civilization, Western Philosophy on October 2, 2013 at 8:45 am

Slade Mendenhall is an M.Sc. candidate in Comparative Politics at the London School of Economics, with specializations in conflict and Middle Eastern affairs. He holds degrees in Economics and Mass Media Arts from the University of Georgia and writes for The Objective Standard and themendenhall.com, where he is also editor.

The following is part of a series of chapter-by-chapter analyses of Friedrich Hayek’s The Road to Serfdom, conducted as part of The Mendenhall’s expanding Capitalist Reader’s Guide project. Previous entries can be found here: Introduction, Chapter 1, 2, 3, 4, 5, and 6.

In “Economic Control and Totalitarianism”, the subject of Hayek’s seventh chapter, we find him at his best, with a clarity and reason that we have not seen since chapter two, “The Great Utopia.” In chapter seven, Hayek expounds upon numerous themes within the titular subject: the inextricability of dictatorial control and economic planning, the fallacy of believing that economic controls can be separated from broader political controls, the inevitability in a planned economy of controls extending to individuals’ choice of profession, and the interrelation of economic and political freedom. What aspects of the chapter we might find to criticize arise either from a desire for him to take his line of thinking a step further than he does or already established mistakes carried over from previous chapters. Despite a few minor missteps, however, Hayek’s chapter is, overall, an exceedingly positive contribution.

He begins by stating what is, to many self-deceiving advocates of socialism, a jarring observation: that planned economies, following their natural course, ultimately always require dictatorial rule. “Most planners who have seriously considered the practical aspects of their task,” Hayek writes, “have little doubt that a directed economy must be run on more or less dictatorial lines” (66). Without fully restating the argument here, Hayek implicitly rests upon the description of this tendency that he spelled out in chapter 5, “Planning and Democracy”: power in a planned system gradually consolidates into a central committee or single dictator as a matter of organizational efficiency, with a decisive central leadership winning out over the gridlock and inefficiencies of a democratic body. The point is as valid and well made here as it was then.

Where Hayek expounds upon this is in refuting one of the false promises often made by planners as they reach for the reins of a country’s economy: “the consolation… that this authoritarian direction will apply ‘only’ to economic matters” (66). Contrary to the suggestion that controls will be limited to economic affairs, Hayek asserts that economic controls in the absence of broader political controls are not simply unlikely, but impossible. Rather than simply detailing in a typical way the interrelationship of economic and other activities, Hayek acknowledges the inseparability of the two, writing, “It is largely a consequence of the erroneous belief that there are purely economic ends separate from the other ends of life” (66). He later elaborates:

“The authority directing all economic activity would control not merely the part of our lives which is concerned with inferior things; it would control the allocation of the limited means for all our ends. And whoever controls all economic activity controls the means for all our ends, and must therefore decide which are to be satisfied and which not. This is really the crux of the matter. Economic control is not merely control of a sector of human life which can be separated from the rest; it is the control of the means for all our ends” (68).

Hayek’s point is, in the context of modern economic education, a largely underappreciated and mishandled one. Economics instructors have, with time, lost the important skill of contextualizing economic interests within the broader scope of other human pursuits, instead treating them either as abstract ideas toyed with in a vacuum without real-world ramifications or preaching the ‘economics is everything’ doctrine to the exclusion of other analytical tools and frameworks.

Hayek, whether by virtue of writing at a time less bound by such false dichotomization of the field or simply due to his exceptional qualities as an economic thinker, successfully avoids both traps. “Strictly speaking,” he writes,

“there is no ‘economic motive’ but only economic factors conditioning our striving for other ends. What in ordinary language is misleadingly called the ‘economic motive’ means merely the desire for general opportunity, the desire for power to achieve unspecified ends. If we strive for money it is because it offers us the widest choice in enjoying the fruits of our efforts” (67).

Hayek rightly acknowledges money as a profoundly empowering economic good, calling it “one of the greatest instruments of freedom ever invented by man” that “opens an astounding range of choice to the poor man, a range greater than that which not many generations ago was open to the wealthy” (67).

Chapter seven goes on to briefly characterize the pervasiveness of central planning, and its propensity to spread to all areas of a society. Hayek recognizes that the much-eluded question of socialism-versus-capitalism is not simply one of which decisions individuals are to make for their lives, but whether the decision is to be theirs at all:

“The question raised by economic planning is, therefore, not merely whether we shall be able to satisfy what we regard as our more or less important needs in the way we prefer. It is whether it shall be we who decide what is more, and what is less, important for us, or whether this is to be decided by the planner” (68).

Those on both sides of the aisle in the United States today, who fail in so many matters to appreciate the distinction between individuals choosing the right thing for their lives and a government official imposing their choice (be it right or wrong) upon them, would do well to heed Hayek’s warning. Modern American political thinking, caught between an increasingly authoritarian left (taken directly from Marx and Rousseau, or updated via modern incarnations like Krugman, Sunstein, and Stiglitz) and a right that has yet to extend its limited government spirit to all areas of economics—much less censorship and social issues—has a great deal to learn from an Austrian economist’s words written some seventy years ago.

One element of central planning that utopian-minded young socialist idealists evade is that labor, being an input, must, in a controlled economy be as controlled as any other good—if not more so. This does not mean simply the control of wages or the maintenance of union. Ultimately, it means government control over the quantity of individuals in a given profession, conducted in the interest of keeping wages in a given field high and ensuring that there is an adequate supply of expertise to meet all of the economy’s needs. This means at some point dictating who can and cannot enter a given field of work.

Hayek writes,

“Most planners, it is true, promise that in the new planned world free choice of occupation will be scrupulously preserved or even increased. But there they promise more than they can possibly fulfill. If they want to plan they must control the entry into the different trades and occupations, or the terms of remuneration, or both” (71).

How many young socialists on college campuses across the country would not object to being torn from their chosen course of study and compelled to study for degrees in which they had no interest, to spend their lives in careers they did not love? That is the fate that they ask for, whether they recognize it as such or not. Would they accept it willingly? Would they “become a mere means, to be used by the authority in the service of such abstractions as the ‘social welfare’ or the ‘good of the community’” (72), bowing their heads subserviently to spend a life on a path that was chosen for them, for the good of society? Perhaps some. And perhaps others would recognize the nature of what they profess to believe in and renounce it. Either way, it is a reality that should be presented to them in those terms by those who see socialism for what it is.

Towards the end of the chapter, Hayek makes several key observations that would prove all the more true in the decades after his writing. He notes the decline of references by advocates of socialism to the functional superiority of socialism. Gradually witnessing their system being discredited, but doubling-down on their dogma, the socialists of the mid-20^th century came to look less and less like those of the early 20^th century, who believed in the system as a technically superior model for society. Instead, their arguments turned egalitarian in nature, “advocat[ing] planning no longer because of its superior productivity but because it will enable us to secure a more just and equitable distribution of wealth” (74). Little did Hayek know how far that trend would go with the rise of the New Left and its legacies, stretching up to the present and the current American administration.

Finally, in another point that has proven all the more true since the time of his writing, Hayek recognizes that the extent of planning proposed by socialism, empowered by modern modes of control, is that much greater than the control and subjugation that occurred under the days of monarchy and feudalism. In reading it, one is brought to wonder how much greater that mechanism of control is today, with NSA surveillance, a growing regulatory state, and ever more executive agencies maintaining armed units to impose their rules, than at Hayek’s writing in 1943.

Hayek’s seventh chapter is a valuable and, for the same reasons, saddening one for the way that it makes us reflect upon the applicability of his words and ideas to our current political environment. Though our current condition is far from totalitarian in nature, the same principles apply, to a lesser extent, in all areas where government intrudes to control markets, alter incentives, or provide special advantages to some at the expense of others.

Human beings are rational animals. We respond to the incentives around us. In the presence of a government that seems increasingly, explicitly willing to toy with those incentives to alter our behavior to suit models and ideals for our lives that are not our own, how much do we lose that we never knew we had? In what ways are our options limited? Need it be by a government edict that tells a young man who would study to be a doctor that doctors are no longer needed, and he should apply to be an engineer instead? No. It may be as subtle as inflating the price of his education through government loan programs, regulating the field he seeks to enter, and subjecting him to entitlement programs that tell him that his life’s work is not his own; that he works and exists in the service of society as a whole. And at that point, the difference between our condition and the ill fate that Hayek describes becomes one not of kind, but of degree.

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Austrian Economics, ‘substantive rules’, “Planning and the Rule of Law”, Bill of Rights, Capitalism, Friedrich Hayek, intrinsicism, legislation, Liberalism, Libertarianism, limited government, planned economy, Rule of Law, Slade Mendenhall, society, subjectivism, The Ayn Rand Column, The Road to Serfdom, themendenhall.com

Thoughts on ‘The Road to Serfdom’: Chapter 6, “Planning and the Rule of Law”

In Arts & Letters, Austrian Economics, Book Reviews, Books, Economics, History, Humane Economy, Humanities, Jurisprudence, Law, Liberalism, Libertarianism, Philosophy, Politics, Western Civilization, Western Philosophy on September 25, 2013 at 7:45 am

The following is the seventh installment in a series of chapter-by-chapter analyses of Friedrich Hayek’s The Road to Serfdom. Previous entries are available here: Introduction, Chapter 1, 2, 3, 4, and 5.

Hayek’s sixth chapter, “Planning and the Rule of Law” sets out to establish two fundamentally different legal frameworks. The first, characteristic of a free society, is what Hayek refers to as a ‘Rule of Law’ approach. The term itself is inadequate, but not incidental; it arises from Hayek’s more fundamental philosophy, and this analysis will address why the lack of a better term is inevitable for Hayek based on his earlier premises. The second type of law described by Hayek is the sort of arbitrary system of decrees inherent to a planned economy.

In the course of contrasting the two and explaining the superiority of the former, Hayek hits many valid points and makes some worthwhile analyses—he even surprises us with the first mention of rights in the whole book! True: in the process, he again falls victim to the sorts of improper philosophical analyses, badly defined concepts, flawed defenses of freedom, and errant policy endorsements we have come to expect. Nonetheless, the essence and guiding message of Chapter VI introduces a valuable subject for thought and further discussion—even if that thought consists of dispelling Hayek’s arguments in favor of stronger, more objective ones.

Hayek’s characterization of each of the two systems—the ‘Rule of Law’ and what he calls ‘substantive rules’—is valid in a limited sense. He writes,

“The Rule of Law thus implies limits to the scope of legislation: it restricts it to the kind of general rules known as formal law, and excludes legislation either directly aimed at particular people, or at enabling anybody to use the coercive power of the state for the purpose of such discrimination. It means, not that everything is regulated by law, but, on the contrary, that the coercive power of the state can be used only in cases defined in advance by the law and in such a way that it can be foreseen how it will be used” (62).

In this description, Hayek hits many necessary points well: it limits legislation, establishes formal and general rules, and limits the use of coercive power to purposes defined in advance by the law. Likewise, with respect to ‘substantive rules’, his description is accurate: “It cannot tie itself down in advance to general and formal rules which prevent arbitrariness. It must provide for the actual needs of people as they arise and then choose deliberately between them” (55).

With similar acuity, he describes such a system’s coercive restructuring of the plans and long-range thinking of individuals,

“[W]here the precise effects of government policy on particular people are known, where the government aims directly at such particular effects, it cannot help knowing these effects, and therefore it cannot be impartial. It must, of necessity, take sides, impose its valuations upon people and, instead of assisting them in the advancement of their own ends, choose the ends for them” (57).

And, finally, its privileging of some parties over others: “There can be no doubt that planning necessarily involves deliberate discrimination between particular needs of different people, and allowing one man to do what another must be prevented from doing” (58-59).

His characterizations of both systems—‘Rule of Law’ and ‘substantive rules’—are correct on the above points. Where these descriptions lack is not in their truth, but in their completeness. Hayek’s description of both the ‘Rule of Law’ and ‘substantive rule’ approaches neglect the fundamental difference between liberal and statist law: whether the state is vested with the privilege of initiating force against the individual. This point cannot be left obfuscated or marginalized; it is nothing less than the definitive difference between the two systems and must be highlighted as such. Generality, non-discrimination, and established pre-requisites for legal action are important features within this framework, but they are ultimately supporting or consequential features of this more fundamental point.

This definition by essentials—of liberal law as that which forbids the violation of individual rights by government force, and of statist law as that which has no such prohibitions—points to the fundamental crux of liberal law: objectivity.

As Harry Binswanger describes it,

“An objectively derived law is one stemming not from the whim of legislators or bureaucrats but from a rational application of the principle of individual rights. Rights tie law to reality, because they are a recognition of a basic, unalterable fact [–the requirements of man’s life]… As the law must be objective in its source, so it must be objective in its form: objective laws are clearly defined, consistent, unambiguous, stable, and as straightforward and simple as possible… The ideal is to make the laws of man like the laws of nature: firm, stable impersonal absolutes.”

Thus, what Hayek describes as the ‘Rule of Law’ is better conceptualized as objective law—law that is based on a clearly defined, rationally derived standard. Conversely, the ‘substantive rule’ approach can be thought of as simply non-objective law.* That Hayek has not properly defined the two is consistent with his argument thus far, which in previous analyses has been shown to be largely based on a subjectivist-skepticist epistemology. This does not make his endorsement of the ‘Rule of Law’ any less genuine, but it does explain his admitted discomfort with his own descriptions in this chapter and why he was unable to correct them.

(For a fuller description of objective law, see Binswanger’s full article on the subject here.)

Hayek impressively illustrates the dangers of ‘substantive rules’ (we shall continue to use his term for accuracy, despite its inadequacy) with a discussion of policies that use the force of government to achieve egalitarian ends. He decries the increasing frequency under socialism of legal discussions as to what is ‘fair’ or ‘reasonable’, with ultimate discretion in such matters left to the subjective whim of a judge or regulator.

“Formal equality before the law [Hayek writes] is in conflict, and in fact incompatible, with any activity of the government deliberately aiming at material or substantive equality of different people, and that any policy directly aiming at a substantive ideal of distributive justice must lead to the destruction of the Rule of Law.” (59)

Tangential to this discussion of the displacement of justice in the law by distorted notions of ‘fairness’ and ‘reasonability’ is a short but powerful challenge to the concept of ‘privilege’ that Hayek observes to be animating such cases. ‘Privilege’, he writes, is a valid description of those instances in which “landed property [was] reserved to members of the nobility” and property was understood to be held not by right but at the discretion of the monarch and its state (60). It is likewise privilege where “the right to produce or sell particular things is reserved to particular people designated by authority.” It is an inaccurate and unjust characterization, however, that treats the possession of property by right as ‘privilege.’ To do so “depriv[es] the word privilege of its meaning” (60).

In a landmark moment, Hayek even mentions the concept of rights for the first time. “[R]ecognised limitations of the powers of legislation,” he writes, “imply the recognition of the inalienable right of the individual, inviolable rights of man.” He goes on to write “How a formal recognition of individual rights, or of the equal rights of minorities, loses all significance in a state [sic] which embarks on a complete control of economic life, has been amply demonstrated by the experience of the various Central European countries” (64). Both instances are valid discussions of the concept. Whether this signals the introduction of a more enduring concept throughout the remainder of the work, or whether it is simply a passing mention not to be invoked again, time and further chapters will reveal.

Amidst these positive points, however, the chapter is not without severely detrimental flaws, beginning with Hayek’s further elaborations upon the ‘Rule of Law.’ Hayek unduly and inexplicably concedes ground to capitalism’s detractors, writing, “It cannot be denied that the Rule of Law produces economic inequality—all that can be claimed for it is that this inequality is not designed to affect particular people in a particular way” (59). That such a grave error should be committed on the very topic—economics—in which he has thus far been relatively solid and which is, in fact, his stock-in-trade is exasperating.

The ‘Rule of Law’, even in Hayek’s loose and non-essential definition of it, does not produce inequality—neither in means nor in outcomes. He has devoted much of the chapter to explaining its superiority to ‘substantive rules’, largely on the grounds that it does not privilege one party over another. Thus, he cannot be thought to be saying it produces an inequality of means. He can only be understood as saying that it produces an inequality of outcomes. This, however, is patently false.

Inequality in a laissez-faire society is simply a reflection of the differing achievements of individual men. It arises from man’s nature—the fact that he is rational and capable of immeasurable creativity, but that his consciousness is volitional. In such a society, man is left free—restricted only by the limits of his own faculties.

A limited government honoring individual rights, refusing to intervene in an economy or in any way initiate force against its citizens, does not produce anything except a system of justice and a circumstance in which force is prohibited from human relationships. Where inequality of achievement results between different men—whether competing in the same field or pursuing unrelated economic ventures—it is neither produced by the law nor prevented by it. It is a fact of nature.

Hayek makes similarly baffling assertions as to what the ultimate aim of law should be, and it is here that we come to see the difference between Hayek’s ‘Rule of Law’ and objective law as we defined it above. Where objective law references a particular standard—the requirements of man’s life—as the ultimate value to be gained and kept, Hayek’s looser ‘Rule of Law’ seeks to preserve not a concrete value, but a state of randomness.

“[T]hat we do not know their concrete effect, that we do not know what particular ends these rules will further, or which particular people they will assist, that they are merely given the form most likely on the whole to benefit all the people affected by them, is the most important criterion of formal rules in the sense in which we here use the term” (56). [Emphasis mine.]

Thus, the unpredictability of outcomes is treated as an intrinsic value. True: Hayek is correct that an objective legal system in no way predicts or influences which parties in a society will be successful and which might fail. However, lest one remain adamant that Hayek is simply describing what will happen in such a system, rather than arguing why such a system should be instituted, a subsequent passage leaves no room for doubt:

“[I]t may appear paradoxical to claim as a virtue that under one system we shall know less about the particular effect of the measures the state takes than would be true under most other systems and that a method of social control should be deemed superior because of our ignorance of its precise results. Yet this consideration is in fact the rationale of the great liberal principle of the Rule of Law” (56). [Emphasis mine.]

Should this passage not suffice to bring back memories of Hayek’s abhorrent defense of liberty in Chapter IV, Hayek further abuses the concept and paves the road for anarchist libertarians to come by suggesting that law itself is a violation of liberty. He writes that, “While every law restricts individual freedom to some extent by altering the means [sic] which people may use in the pursuit of their aims, under the Rule of Law the government is prevented from stultifying individual efforts by ad hoc action” (54).

To suggest that every law—even objectively derived and defined laws that prohibit the initiation of force between individuals—constitutes a restriction of individual freedom is to suggest, conversely, that there exists a freedom to initiate force—that is: a freedom to restrict freedoms. Implicit in it is the suggestion that freedoms clash, and that the pursuit of ever-greater freedoms requires a conflict of interest between men. For a succinct refutation of this idea, an entry from Ayn Rand’s column, “Textbook of Americanism” puts it best:

“Do not be misled . . . by an old collectivist trick which goes like this: there is no absolute freedom anyway, since you are not free to murder; society limits your freedom when it does not permit you to kill; therefore, society holds the right to limit your freedom in any manner it sees fit; therefore, drop the delusion of freedom—freedom is whatever society decides it is. It is not society, nor any social right, that forbids you to kill—but the inalienable individual right of another man to live. This is not a “compromise” between two rights—but a line of division that preserves both rights untouched. The division is not derived from an edict of society—but from your own inalienable individual right. The definition of this limit is not set arbitrarily by society—but is implicit in the definition of your own right. Within the sphere of your own rights, your freedom is absolute.”**

Other passing errors punctuate the chapter—a collectivist invocation of “society as a whole” as the good to be considered, an acceptance of there being no negligible difference between an explicit and codified Bill of Rights versus a tradition-based common law, and a parting endorsement of “factory laws” (the destructive effects of which have been thoroughly argued by historian Robert Hessen).

There are again passages that sound hauntingly familiar in today’s world. His description of the bureaucratization of government—“[b]y giving the government unlimited powers the most arbitrary rule can be made legal: and in this way a democracy may set up the most complete despotism imaginable”—sounds much like a description of today’s regulatory state. A description of The Economist as a half-hearted defender of capitalism with an inflated liberal reputation completes the picture and demonstrates that many things have not changed since Hayek’s time.

The subject of Chapter VI, the abuses perpetrated by socialism on the legal system and the ways in which law is transformed by it from a shield into a weapon, is an important one for capitalism’s defenders to understand. Certainly the ongoing antitrust abuses being carried out at the time of this writing make its continued relevance vividly clear. But the fact that the subject demands greater understanding does not mean that Hayek’s argument against it can or should be incorporated as part of that understanding—and certainly not as part of capitalism’s defense. It—and we—deserve better.

* I specifically use the term “non-objective” here, as opposed to the more conventional “subjective”, as in this context it includes law based both in subjectivism and intrinsicism.

** “Textbook of Americanism”, The Ayn Rand Column, pg. 85

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10 Things to Know About Mortgages, Allen Mendenhall, fee simple, foreclosure, mortgagee, mortgagor, secondary mortgage market, security, special purpose vehicle (SPV), title, Uniform Commercial Code (UCC)

10 Things to Know About Mortgages

In Law, Legal Education & Pedagogy, Property on September 4, 2013 at 7:45 am

1. A mortgagee obtains a security interest (a note) from the mortgagor who mortgages the asset (the house) to secure the loan for the mortgagee.

2. The note is a security that, under the Uniform Commercial Code (UCC), is a negotiable instrument that may be bought and sold.

3. The mortgage is recorded in the land records, thus allowing the mortgagee, in the event of the default of the mortgagor, to enforce the security on the note by foreclosing the rights of the mortgagor to the mortgaged property.

4. In most cases, a defaulting mortgagor will have the opportunity to redeem the property after the foreclosure of its rights, although a cloud will remain on the title to the property. A foreclosure is the elimination of the equitable right of redemption to take both legal and equitable title to the property in fee simple. When a mortgagor defaults by, say, failing to make payments, the mortgagee (or its assigns) files a lien on the property and can eventually eliminate the aforementioned rights and exercise a power of sale. The power of sale is also known as a non-judicial foreclosure and is authorized and provided for by the mortgage itself or the deed of trust. In a “power of sale” foreclosure, if the debtor does not cure his or her default or file bankruptcy to stop the sale, the mortgagee will conduct a public auction much like a sheriff’s auction, and the mortgagee can itself bid on the property; unlike other bidders, the mortgagee can bid on credit.

5. Usually a mortgagee transfers the note to a special purpose vehicle (SPV) that pools the note with other such notes, all of which are sold/assigned (in the form of a “security”) on what’s called the “secondary mortgage market.” Proceeds generated by the assigned security are paid back to the original mortgagee to “compensate” the mortgagee for selling a “security” in the first place.

6. The mortgagee collects payments from the mortgagor (i.e., the monthly mortgage payments) and passes them along to the investors who have an assigned interest (i.e., a “security”) in the note.

7. In theory, the buying and selling of notes on the secondary mortgage market lowers the interest rates of all mortgagors and gives investors a low-risk “security” to invest in so that all parties are better off. The investors hold only an assignment of the note (i.e., a “security”), not the actual mortgage recorded in the land records. Therefore, they have an interest in the mortgage by way of the assigned note, but as assignees, they are protected from certain liabilities that could befall the originating mortgagee and are free from requirements such as recording their interests in the land records. Mortgagees like investors (who, again, enter into the process by way of SPVs) because they essentially pay off the risks associated with being the originating interest and then take on that interest with little risk involved.

8. The process of pooling notes and issuing securities to investors (thereby lowering interest rates over time) is called “securitization.” The investors, through SPVs, pay off the original mortgagees and thereby relieve the mortgagees of their burden of risk in being the lender to the mortgagor. In return, the investors gain an interest in the mortgage and, as assignees, do not have the risk that the mortgagee would have had in its relationship with the mortgagor. Therefore, the mortgagee and the investors have entered into a mutually beneficial relationship whereby each offsets the risks of the other. All of this happens without any effect on the mortgagor and his/her mortgage payments, except possibly to the extent that the mortgagor may, if anything, benefit from lower interest rates. However, mortgagors may not understand that SPVs and investors have been assigned the rights enjoyed by the mortgagee (namely, the right to foreclose), although the mortgagees should have apprised mortgagors that the security in the note has passed along to other parties.

9. The investors become what are called “trustees” that hold the securities (i.e., the assignments of the rights to the note). The rights and obligations of the mortgagees, SPVs, and trustees/investors are spelled out in a “Pooling and Servicing Agreement,” which includes provisions about allowing the SPVs or trustees/investors to foreclose on the mortgagor’s rights by virtue of the chain of interest that extended from the mortgagee’s original transfer to the SPV to the investors (i.e., the “trustees”).

10. This whole process has created difficulties with recording, which, although not required of assignees, often had to take place in order to have a record tracking the passing of interest from the SPV to the investor/trustees and potentially to other investor/trustees, etc. Accordingly, companies came into being that handled the transfer process and maintained electronic databases for investors and the mortgage industry generally to track the passing of interests in notes/securities. These companies are called “nominees.” When drafting their original note, the mortgagor and mortgagee designate a company to serve as a “nominee” for the mortgagee’s successor and assigns. The nominee does not own or fund the mortgage loan, but instead tracks the transfer of interest in the loan and becomes the mortgagee of record. A nominee makes its money by collecting on membership fees that are required of anyone wanting access to the database. There is an overlap between nominees and mortgagees because nominees serve the function and do the work of the mortgagee. In fact, banks and mortgage companies hire and certify people who can work with and for nominees.

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1965 Voting Rights Act, Arthur D. Shores, Charles A. Gomillion, Fred Gray, Gomillion v. Lightfoot, Judge Frank M. Johnson, Justice Felix Frankfurter, Local Act No. 140, Montgomery Advertiser, NAACP, Philip M. Lightfoot, Robert L. Carter, The Fourteenth Amendment, Tuskegee Normal and Industrial Institute, Tuskegee University

What was Gomillion v. Lightfoot?

In America, American History, Arts & Letters, History, Humanities, Law, Politics, Southern History, The South on August 21, 2013 at 8:45 am

This piece originally appeared here in the Encyclopedia of Alabama.

In Gomillion v. Lightfoot, the U.S. Supreme Court ruled in 1960 that Tuskegee city officials had redrawn the city’s boundaries unconstitutionally to ensure the election of white candidates in the city’s political races. The case was one of several events that laid the foundation for the 1965 Voting Rights Act, which prohibited discriminatory voting practices. The case was named for Tuskegee Normal and Industrial Institute (present-day Tuskegee University) professor Charles A. Gomillion, who was lead plaintiff, and the defendant, Tuskegee mayor, Philip M. Lightfoot, among other city officials.

Gomillion, dean of students and chair of the social sciences division at Tuskegee, for years had facilitated voter registration movements for blacks in Tuskegee. He learned in 1957 that several white citizens were promoting a bill in the state legislature to redefine the boundaries of the city to ensure election victories by whites in 1960. Resisting these efforts and urging others to oppose any referenda meant to disfranchise black voters, Gomillion and other activists appealed to the City Council, wrote to the County Commission, lobbied the state legislature, and published an open letter in the Montgomery Advertiser. Despite these efforts, Local Act No. 140, introduced by Samuel M. Engelhardt Jr., passed in the state legislature in 1957. It reconfigured the boundaries of the city from a simple square shape to a figure with 28 sides, removing from the city Tuskegee Institute and all but four or five of the nearly 400 black voters, but none of more than 1,300 white residents. Gomillion and the Tuskegee Civic Association treated this initial setback as an opportunity to institute legal proceedings and thereby to mobilize concerted political action.

Gomillion and other petitioners, black citizens of Alabama and residents (or former residents) of Tuskegee, alleged that the act violated the “due process” and “equal protection” clauses of the Fourteenth Amendment to the Constitution. They claimed that the redrawn city boundaries disfranchised black voters; therefore, they alleged, the act had a discriminatory purpose. In fact, the act’s author, Engelhardt, was executive secretary of the White Citizens’ Council of Alabama.

Tuskegee’s white citizens were trying to change the city’s boundaries to head off the rise in African Americans registering to vote. After World War II, local African Americans wanted to play a more active role in the city’s civic life, and whites became more determined to deny them that right. Redrawing the city’s boundaries had the unintended effect of uniting Tuskegee Institute’s African American intellectuals with the less educated African Americans living outside the sphere of the school. Some members of the school’s faculty realized that possessing advanced degrees ultimately provided them no different status among the city’s white establishment.

Initially, the U.S. District Court for the Middle District of Alabama, in Montgomery, headed by Judge Frank M. Johnson, dismissed the case, ruling that the state had the right to draw boundaries, a ruling that was upheld by the Court of Appeals for the Fifth Circuit in New Orleans. The case was appealed before the Supreme Court on October 18 and 19, 1960. Gomillion did not travel to Washington, D.C., with the lawyers handling his side of the case. Veteran Alabama civil rights attorney Fred Gray and Robert L. Carter, lead counsel for the National Association for the Advancement of Colored People (NAACP), argued the case, with assistance from Arthur D. Shores, who provided additional legal counsel. They claimed that the state’s intent in the redistricting had been to discriminate covertly against African Americans.

On November 14, the Supreme Court rendered a unanimous decision in favor of the petitioners. Justice Felix Frankfurter, writing for the majority, held that the act violated the Fifteenth Amendment, which prohibits states from passing laws depriving citizens of the right to vote, and thus reversed the lower courts’ rulings. Frankfurter likewise dismissed the city’s appeal of generalities about state authority. He conceded that states retain extensive powers, but that they may not do whatever they please with municipalities. The case showed that all state powers were subject to limitations imposed by the U.S. Constitution; therefore, states were not insulated from federal judicial review when they jeopardized federally protected rights. In 1961, the results of the decision went into effect; under the direction of Judge Johnson, the gerrymandering was reversed and the original map was reinstituted.

Additional Resources

Elwood, William A. “An Interview with Charles G. Gomillion.” Callaloo 40 (Summer 1989): 576-99.

Gomillion, C. G. “The Negro Voter in the South.” Journal of Negro Education 26(3): 281-86.

Gomillion v. Lightfoot, 364 U.S. 339 (1960).

Norrell, Robert J. Reaping the Whirlwind: The Civil Rights Movement in Tuskegee. New York: Alfred A. Knopf, 1985.

Taper, Bernard. Gomillion versus Lightfoot: The Tuskegee Gerrymander Case. New York: McGraw-Hill, 1962.

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Allen Mendenhall, churches, Law and Locality, local groups, Spontaneous Order, the State

Law and Locality

In Arts & Letters, Humanities, Jurisprudence, Justice, Law, Libertarianism, Philosophy, Politics on August 7, 2013 at 8:45 am

On one common definition, law is a practice or set of rules based in custom and habit. Law is not diktat. It arises spontaneously through the interaction of human agents operating within and among social groups and precedes State promulgation.

Legislative enactment can reflect the law as it is constituted in the mores and traditions of groups, but it can also be the result of governmental usurpation. The legislator does not embody the peoples he represents, and as society grows ever more complex and populations ever denser, as technologies link us more and more to one another in cyberspace and other virtual fora with disembodied communicants, the notion that the legislator speaks on behalf of his constituents becomes increasingly dubious if not downright absurd.

Local groups such as schools, clubs, community organizations, and churches have complex rules of exchange derived from shared mores and traditions. They are more likely to speak accurately about the wants and needs of their community. Their rules are not necessarily articulated, but tacitly understood.

These local groups recognize regulations not as monolithic, governmental impositions but as integrated schemes of social principles. Group-members who fail or refuse to follow rules and regulations are punished. On this local level, punishment can be simple: ostracism or public disapproval. A businessperson who violates another businessperson’s trust will lose business, just as he will lose clients by losing consumers’ trust; a church-member living in sin will likewise suffer from the judgment of his peers or, more appropriately, from the canon law pertaining to his sin.

In these examples, it is clear that the State should not intervene in punishing the wrongdoer; local custom and habit suffice to regulate conduct without resort to State violence or compulsion; therefore, private associations suffice to generate rules and their corresponding punishments. Distant government bodies are not likely to conform to the intricate constitutions of local peoples and therefore are likely to exercise their disciplinary powers using punitive, exploitative, or arbitrary means.

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Donna Meredith, Jodi Picoult, Julie Compton, Southern Literary Review, Tell No Lies, The Color of Lies, The Glass Madonna

Donna Meredith Reviews “Keep No Secrets,” by Julie Compton

In Arts & Letters, Books, Fiction, Humanities, Law, Law-and-Literature, Novels, Writing on July 17, 2013 at 8:45 am

Donna Meredith is a freelance writer living in Tallahassee, Florida. She taught English, journalism, and TV production in public high schools in West Virginia and Georgia for 29 years. Donna earned a BA in Education with a double major in English and Journalism from Fairmont State College, an MS in Journalism from West Virginia University, and an EdS in English from Nova Southeastern University. She has also participated in fiction writing workshops at Florida State University and served as a newsletter editor for the Florida State Attorney General’s Office. The Glass Madonna was her first novel. It won first place for unpublished women’s fiction in the Royal Palm Literary Awards, sponsored by the Florida Writers Association, and runner up in the Gulf Coast novel writing contest. Her second novel, The Color of Lies, won the gold medal for adult fiction in 2012 from the Florida Publishers Association and also first place in unpublished women’s fiction from the Florida Writers Association. Her latest book is nonfiction, Magic in the Mountains, the amazing story of how a determined and talented woman revived the ancient art of cameo glass in the twentieth century in West Virginia. She is currently working on a series of environmental thrillers featuring a female hydrogeologist as the lead character.

Above: Julie Compton

The following review is appearing simultaneously in Southern Literary Review.

Keep No Secrets, Julie Compton’s powerful sequel to Tell No Lies, is guaranteed to keep readers turning pages into the wee hours of the morning. Both of Compton’s courtroom thrillers are set in St. Louis, Missouri, where she grew up.

Like Jodi Picoult’s best works, Compton’s novels sizzle with all the trust, betrayal, love, and forgiveness family relationships entail—especially when you expose their private conflicts in a public courtroom. Her books seem to pose this question: how well can you know even those people closest to you?

Read Tell No Lies first. Though the sequel provides enough backstory to be a great read on its own, without understanding the first book you’d miss the riveting psychological development of the primary characters, all of whom star in the sequel as well.

In Tell No Lies, idealistic lawyer Jack Hilliard leaves behind a lucrative private practice to run for district attorney. The plot centers around a high-profile murder case. Jack is easy to like because he tries so hard to do the right thing. But there wouldn’t be a story if he were perfect. He yields to one temptation, which hurls his life on a downward spiral that nearly ends his marriage and his career.

The final plot twist leaves you wondering if Jack has been manipulated. Compton is that rare author who trusts her readers’ intelligence. She allows us to figure things out for ourselves, to experience the same doubts as Jack Hilliard. It makes the novel more like our own lives, where we can’t always tell what people’s motives are or know when they are lying.

Keep No Secrets begins four and a half years after the events of Tell No Lies. During that time, Jack Hilliard has worked arduously to repair the damage caused by his mistakes—and has largely succeeded. Until the night he finds his teenage son Michael having sex with his girlfriend. They are drunk. Being a white knight kind of guy, Jack gives the girl a ride home. In an effort to win back his son’s love and respect, Jack doesn’t tell his wife about Michael’s transgressions. That car ride sets off an unforeseeable chain of events that threaten to wreck Jack’s career and marriage once again.

Think that’s enough dirt to dump on a nice guy like Jack? Not a chance. The already untenable situation deteriorates further when Jenny Dodson, the woman involved in his earlier downfall, reappears after all these years, asking for his help. He can’t say no, but he vows to keep his wife truthfully informed of everything that happens. He does. Sort of. “The lies aren’t what he says; they’re what he doesn’t say”—this is a refrain Compton artfully employs several times.

This novel deals with social issues like the impact of adultery and sexual assault on families. Most readers are going to put themselves in the various characters’ situations and ask themselves if they would have behaved differently. Would we lie to protect a loved one? What if you knew something that would put the one you love in jail or in danger? Would you tell the truth? What if not telling keeps an innocent person imprisoned? How far should we trust the legal system? If a spouse gave us reason to doubt, could we forgive and trust again? When is it time to give a marriage another chance—and when is it time to walk away?

Compton’s novels are as fine as any courtroom thrillers out there. Though her use of present tense can be a bit distracting, the well-plotted series sparkles with psychologically complex characters.

For both undergraduate work and law school, Compton attended Washington University in Missouri. She began her legal career there, but last practiced in Wilmington, Delaware, as a trial attorney for the U.S. Department of Justice. She now lives near Orlando with her husband and two daughters and writes full-time. She is also the author of Rescuing Olivia, a novel of suspense, romance, and family drama.

Below: Donna Meredith

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