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Posts Tagged ‘Allen Mendenhall’

What Is Magna Carta?

In Arts & Letters, Britain, History, Humanities, Jurisprudence, Law, liberal arts, Western Civilization, Western Philosophy on November 29, 2017 at 6:45 am
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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

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

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

Allen 2

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

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

The book is available for purchase here:

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Part Three: Allen Mendenhall Interviews Mark Zunac about his new edition, “Literature and the Conservative Ideal”

In Academia, America, American Literature, Arts & Letters, Books, British Literature, Conservatism, Fiction, History, Humanities, liberal arts, Liberalism, Literary Theory & Criticism, Literature, Novels, Pedagogy, Philosophy, Politics, Postmodernism, Scholarship, Teaching, The Academy, Western Civilization, Western Philosophy on November 23, 2016 at 6:45 am
Mark Zunac

Mark Zunac

Mark Zunac is associate professor in the Department of Languages and Literatures at the University of Wisconsin-Whitewater.  Editor of Literature and the Conservative Ideal, he researches revolution, writing, and the rise of intellectual conservatism in Britain following the French Revolution. He received his Ph.D. from Marquette University in 2008.

 

AM:  James Seaton is a good friend.  He and I began corresponding roughly a decade ago, and we first met in person about six years ago at the Russell Kirk Center for Cultural Renewal in Mecosta, Michigan.  His edition of Santayana had just come out with Yale University Press, and he was there to give a lecture on it.  Seaton opens his essay for your volume with the following sentence:  “Neither Henry James nor George Santayana were active participants in the politics of their time.”  Don’t you think there’s something inherently conservative in this very distance from one’s own cultural and political moment?  I’m thinking of Kirk’s admonition that conservatism is about the rejection of ideology. 

MZ:  It was actually James Seaton who, some time ago, in an innocuous but characteristically trenchant review of the Norton Anthology of Theory and Criticism published in The Weekly Standard, provided for me the framework for thinking deeply about literature’s authenticity and its exploitation by postmodern criticism. I very regrettably lacked a lot of exposure to more traditional approaches to literature and, while I instinctively eschewed the most obscure theoretics, I remained unaware that the critic could do more than scamper around the edges of territory claimed by Jürgen Habermas and Paul de Man. To Kirk’s point, I think I had always rejected the ideology – I just wasn’t fully aware that there might be a viable alternative to it.

I do think there is something to be said for one’s distance from the cultural and political moment. The conservative disposition doesn’t really lend itself well to the act of politics, and this is perhaps why conservatives have been consistently rolled in nearly every public debate over culture for the last half-century. Being always on the defensive and lacking the language to explain the intuitive – Lee Harris calls this the “visceral code” – puts the conservative at a rhetorical, if not moral, disadvantage. For me, the everyday analogy to Seaton’s statement is the conservative tendency to focus on the admittedly prosaic underpinnings of civic life – largely the familial and the associational. As we are witnessing with the ever-increasing presence of the state in the daily lives of individuals, the absence of participation in politics by those whose disposition might be called “conservative” is conspicuous.

AM:  I remember where I was when I read Seaton’s review that you mention. In his book Cultural Conservatism, Political Liberalism, in the context of remarks about E. D. Hirsch, he says that “’[c]ultural literacy’ would be particularly valuable for those now termed the ‘culturally disadvantaged’ in achieving individual economic mobility,” and he adds that the “spread of cultural literacy would also promote political democracy, since discussion can only take place on the basis of at least some shared assumptions and common vocabulary.”  Do you agree with this?

 MZ: I would agree wholeheartedly. There has been much invested, however, in facilitating a kind of cultural amnesia. Some of it has been inadvertent, but much of it has not. As reflexive relativism has taken hold, any semblance of commonality has been superseded by historical moral equivalencies. Consequently, we are left with little more than recriminations and collective guilt. Western culture perhaps has much to atone for, but past transgressions cannot be the sole basis for self-definition. There just may be certain shared values and traditions that could serve as the basis for a common culture and a source of pride, but it is often more expedient to assign particular beliefs and behaviors to discrete and easily identifiable groups.

This may be cynical, but I think there is much to be gained politically – the recent election notwithstanding – from the veneration of difference. I’m not sure the individual is or ever has been truly dignified when human worth is either enhanced or degraded by how that individual is situated during any given cultural moment. It is difficult to argue that this is not what is happening now, at least to some degree. Perhaps by expanding our very narrow conceptions of diversity, we would have a much greater chance of constructive dialogue, which might then enact a more conscientious effort to promote this notion of cultural literacy. The deliberately false promise that multiculturalism is the surest path to unity and a common, mutual understanding has generated much confusion and it has, against its fundamental premise, created self-defeating forms of tribalism. The multiculturalist program has sought to validate rather than engage and evaluate global cultures, and its underside has been the raw factionalizing that consumes so much public discourse.

AM:  It is interesting and bothersome to see how multiculturalism has degenerated into a monolithic orthodoxy, which is by its very form and function against diversity, not for it.  I wonder what would happen if we exposed more students to political theory in the vein of Michael Polanyi of F. A. Hayek, thinkers whose intelligence and theoretical sophistication have to be taken seriously by those who study literary theory and criticism.  The forms of devolution and subsidiarity advocated by these men might provide challenges to the prevailing consensus among many students and teachers in English departments about the kind of ideas motivating certain figures on the right.

 MZ:  I do believe that radical multiculturalism militates against diversity, and in this regard the university has failed in one of its stated core missions. The failure to cultivate an inclusive campus community has been made evident not only by civil disobedience and other visible forms of unrest, but also by the imposition of predictable bureaucratic programs aimed at solving problems that the administrative bureaucracy has itself made worse. Obsessing about difference and instituting special privileges for certain groups, and then pontificating about equality just seems disingenuous. Current narratives on race as well as the devaluing of our common culture have been toxic for the university, as a lot of students, I think rightly, feel as though justice in this context is punitive. If there is any palpable hostility to the learning process or to intellectual climate on today’s typical campus, perhaps we as the academy should look inward rather than to historical prejudices that we can conveniently circle back to after having tried to address all of them through administrative means and a thoroughly politicized curriculum.

Moreover, as politics has regrettably become a proxy for character, even reasoned opposition to progressive ideals, particularly on the campus, is delegitimized and discounted as having been informed by sinister motives. I argue in the book that too often conservative ideas are either ignored by their critics or deliberately distorted so as to identify an enemy against which the social justice war may be fought. There is ample evidence of this, and I hesitate to identify any one event or episode to draw conclusions. Yet I recently find myself coming back to a video passed along to me that recorded the Young Americas Foundation at the University of Kansas being aggressively confronted at one of their meetings by protesters. What strikes me in that video is that the person behind the camera seems to be officiating the ensuing debate, commenting on and critiquing every gesture or utterance made by members of the YAF group, essentially flagging them for violations of rules to which they never agreed. The concept of civil discourse is applied so lopsidedly that only one set of ideas is allowed to prevail. I think this is by design, even though, as you suggest, a serious consideration of conservative ideas and philosophies would broaden minds and better prepare us all for the responsibilities of civic life.

AM:  Do you worry about our habits of reading in our technological and digital age?  I recall Harold Bloom once saying that we all read “against the clock.”  Readers of the Bible, he says, read with more urgency than, say, readers of Shakespeare, but there’s always the problem of the limitations of time: Life just isn’t long enough for us to read everything worth reading.  Thinking about that has sometimes led me into a feeling of existential angst, especially after I spent a few years on a self-imposed reading diet that included the consumption of a canonical work from Western Civilization per week.  When I finished the program each year, I was distraught at how little I’d actually read.  I’m concerned that we’re wasting a lot of precious time reading texts that just aren’t that fulfilling or edifying. 

MZ:  The reading project you describe is an ambitious one. I merely committed to reading a page of Waugh every day this year, and I couldn’t even do that. On a related note, a current depressing irony for me is that I have volume I of Proust’s In Search of Lost Time sitting on my shelf, and I have spent precious minutes staring at it, wondering if I could actually ever get through all 7 volumes. There are a lot of reasons for our society’s detachment from literature, and reading has definitely been made very difficult in the digital age. The sheer amount of available information is daunting, and it has led to a frenetic search for the quick, easy, and thereby ungratifying.

I think, though, that while the internet has shifted our ability to focus and perhaps even changed how our brains process information, it has also caused a loss of discipline. It appeals to human nature to swipe to the next task if something becomes intellectually difficult, and this is made almost compulsory by technology, especially for those young people who have been immersed in it almost literally from day 1. Maybe I’m just projecting, though. I struggle with it as well, and I also find myself often wondering, in this day and age of always needing to be busy, how much we all might benefit from slowing down and reading a little Austen.

AM:  This has been a fun interview for me.  One last question: are you working on any projects right now that readers should know about?

MZ:  Thanks, Allen, for the opportunity to talk with you. I have enjoyed it as well. I have shifted my research focus a bit from literature toward the state of the university more generally. Editing Literature and the Conservative Ideal prompted much thought about the future of higher education and the increasing importance of broad-mindedness on the campus.

I am currently editing a collection for Rowman & Littlefield tentatively titled Remaking the University: Liberal Learning, the West, and the Revival of American Higher Education. I am also in discussions to publish a separate volume entitled Defending the West: Finding Culture and Common Humanity in the Postmodern Age. Both books seek to build on a long tradition of support for free expression and the pursuit of truth as well as Western culture’s influence on both. After our discussion, though, I am realizing I might need to just be doing a bit more reading.

AM:  We all need that.  Thanks for the interview, Mark.

Allen Mendenhall Interviews James Elkins about Law, Literature, Poetry, and Teaching

In Academia, Arts & Letters, Books, Creative Writing, Creativity, Humanities, John William Corrington, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, Legal Research & Writing, Literary Theory & Criticism, Literature, Michael Blumenthal, Pedagogy, Philosophy, Scholarship, Teaching, The Academy, Western Philosophy, Writing on February 26, 2014 at 8:30 am
Jim Elkins

James Elkins

AM:  Jim, thank you for doing this interview.  You recently came out with a book, Lawyer Poets and That World We Call Law.  You’ve been researching and writing about lawyer poets for some time now.  What is it about lawyer poets that fascinates you, and what is it about this type of person that makes him or her unique?  In other words, what makes a lawyer poet different from a doctor poet like, say, William Carlos Williams, or a banker poet like T.S. Eliot?

JE:  I first got interested in lawyer poets about 12 years ago when I was introduced to the work of a southern writer, John William Corrington. I found Corrington’s life and work fascinating, and was puzzled by the fact that he was an accomplished poet—as well as a novelist—when he took up the study and practice of law. I had trouble getting my mind around the fact that Corrington was a poet and a lawyer. One reason was that I held some of the usual stereotypes of lawyer and poet. These endeavors—poetry and law—don’t look, at least according to the stereotypes, as if they have much in common. Lawyers and poets appear to us as different as day and night. I was intrigued by this idea of one person embracing such different—or seemingly different—endeavors. When I decided to write about Corrington, I knew I needed to think through this idea of being a lawyer and a poet, a poet and a lawyer.

My fascination with lawyer poets lies in how our iconic images of lawyer and of poet are put to the test when we think about one person writing poems and practicing law. There is, I think, something intriguing about the joining of such differing enterprises in the life of a single person. I don’t want to claim that there is anything unique about lawyer poets, or that the joining of law and poetry creates a unique kind of person. What is unique is how the idea of a lawyer poet changes our sense of who we are as lawyers (that is, those of us who are associated with the legal profession), and how, when our legal colleagues turn out to be poets, we have an open invitation to read their poetry, and for many of us, that means a pursuit of a genre of literature we thought we had no need to pursue.Lawyer Poets

AM: I want to come back to Corrington in a minute.  He’s someone I’ve grown to admire, and I have you to thank for introducing me to his work.  First, though, I’d like to discuss your book, Lawyer Poets and That World We Call Law.  You published several lawyer poets in it.  How did you decide which poets and poems to include? 

JE:  I discovered the work of all the lawyer poets whose poems appear in Lawyer Poets and That World We Call Law during the decade that I tried to identify all the lawyer poets in the U.S., from the first days of the republic. It got to be something a bit more than a research project. I simply wanted to know every lawyer I could identify throughout our history that had taken up with the muse. Along the way, I began to collect a rather substantial list of contemporary lawyers who write and publish poetry. I started reading the poetry and then began to publish the best of what I found in the Legal Studies Forum, a journal I’ve edited for over 15 years now. I might note that most lawyer poets do not write poems about the law and the practice of law and I did not seek out law-related poems. We have a long history of legal verse and most of it is rather bad. What I found in the work of the lawyer poets I was publishing was an occasional poet and an occasional poem about the practice of law that sounded right to me. After publishing the work of lawyer poets for a decade, I found, looking back on what we had published, that the lawyer-related poems held up quite well. And, I found that they looked still more interesting when they were collected and laid out poem to poem. It dawned on me that I had published the best lawyer-related poems in the past 50 years, and that the poems deserved their own anthology.

AM:  One of the poets in the anthology is Michael Blumenthal.  Is he still teaching at West Virginia University College of Law?  I don’t think I ever heard the story about how you two connected.

JE:  When I first got started on the lawyer poets work, I was corresponding with Marlyn Robinson, a reference librarian at the Tarleton Law Library at the University of Texas School of Law. Marlyn compiled a short list of lawyer poets for me, and she mentioned that a poet named Michael Blumenthal, who was then living in or around Austin, had once been a lawyer.

Blumenthal was one of those lawyers, like Archibald MacLeish and John William Corrington, who become lawyers and then realize that what they really want to do is to follow their literary pursuits. I began reading Blumenthal’s poetry and it became clear that he was by no one’s estimation an amateur. In fact, his poetry was so good and his abandonment of the legal profession so apparent, that I didn’t try to connect him for fear that as a major poet he would have little interest in being identified as having any association with the legal profession. And to complicate matters, whenever I did give thought to contacting Blumenthal, I found that he was a poet who seemed to have no permanent home.

I continued to read Blumenthal’s poetry, and then moved on to a collection of his essays, a novel, and a memoir. There is, I think, something rather daunting, at least for me, in trying to contact a major writer. Then, one day, I was working with a Canadian writer on an introduction to a memoir of Roma Goodwin Blackburn, a Canadian lawyer, when she happened to mention Michael Blumenthal. I asked her how she knew him, and she said she had recently corresponded with him to obtain permission to quote one of his poems in a book she was writing with her husband. I told her that I had been wanting to contact Blumenthal but could never quite track him down (not adding that I hadn’t really tried all that hard). She told me he responded to her request promptly and seemed a pleasant enough fellow.

If I have the time right, that was probably in 2005. I sent off a note to Blumenthal and found not only that he was pleasant but seemed interested in the fact that I had found my way to his poetry by way of the fact that he had once been a lawyer. We continued our correspondence, and I decided to devote an issue of the Legal Studies Forum to Michael’s work.

In 2007, we published Correcting the World, an issue of over 440 pages of Michael’s poetry, essays, and fiction. Michael had not, in 2007, when we published the LSF issue devoted to his work, fully addressed, in any of his writings, his decision to leave the legal profession and take up his life as a literary man. I asked if he’d be willing to do that in an essay for the LSF issue, and to my surprise he agreed to do the essay. I talked the powers that be at the law school into inviting Michael to the law school to present his essay, “The Road Not Taken-Twice.”

At this point I still had not met Michael, although we had been working on the LSF collection of his writings for over a year. Michael’s presentation was quite engaging, and it dawned on me that we needed a stronger literary presence at the law school than I was able to provide; what we needed was a poet-in-residence. And now, the delicate part: Would Michael have any interest in thinking about a visiting appointment at the law school? I knew that he was moving from university to university as something of an itinerant professor holding endowed visiting positions, and I thought we might interest him in a stop at the law school. To my surprise, he seemed intrigued by the idea, and the next thing I knew, Michael Blumenthal was a visiting professor at the college of law. He has now been a colleague for several years, and I’m now even more convinced that every law school needs a lawyer poet in residence.

AM:  Do you ever try your hand at poetry?  I’ve found that, for me, it’s hard to read a lot of poetry without trying to write it myself. 

JE:  I will have to admit that I am not a poet. And yes, there are times, when I’m reading poetry, that I imagine that in some reincarnation I will end up, somewhere down the line, as a poet. I’ve written a few poems, and I’ve written just enough to know that poetry requires experience and skill that I do not have. I admire the poets I read enough to know that I need to leave poetry to those who are driven or led, in some way, to be poets. My friend and colleague, James Clarke, a rather prolific poet and retired judge in Canada, has encouraged me to write poetry but I take his suggestion to be a gesture of friendship that discounts the steep learning curve that I’d face as a poet.

AM: I can relate.  I once hoped to gain the experience and skill to become a poet, but I gave up at some point.  Do you ever feel lonely working on poetry and the law?  What I mean is, do you ever feel as if you’re going against the grain, doing something different and even unappreciated by some in the legal community?

JE:  My work with lawyer poets has, from the beginning, been an exhilarating endeavor. And I must say, I have not experienced the work in a lonely way. Initially, when I began to identify the hundreds and hundreds of lawyers who had turned to poetry throughout history, I had the sense that I had descended into a vast underground cavern populated by the most exciting unknown persons you could imagine. John William Corrington (who died well over a decade before I discovered his work) was only the first of these exotic—and yes, I think, initially it felt like I was dealing with some exotic creature, something like a hilltribe elder from a remote village in Burma. I felt like I had stumbled onto a new world and a new way to think about “law and literature.” Law and literature had become, in my discovery of the lawyer poets, an introduction to lawyers who practiced literature, just like they practiced law. One doesn’t feel lonely living amidst these wonderful ghosts!

Then I began corresponding with contemporary lawyer poets. I didn’t have all that much success in inducing them to talk about their lives as lawyer poets (with a few notable exceptions, Michael Blumenthal being one of them), but I did find that lawyers were interested in talking with me about their poetry. If I had not started publishing the poetry of lawyers in the Legal Studies Forum, things might have taken a turn toward the lonely. I began to spend considerable time reading poetry and trying to figure out how to think about what I was reading and how to talk to poets about their work. Keep in mind, I did not grow up reading poetry, and with the exception of Wendell Berry and Robert Bly, had really not read poetry. So, novice that I was, I was entering a new world and that produced its own excitement. As the years rolled along, I found that I had been befriended by poetry, and that poets were becoming my friends. I mentioned my friendship with Judge Clarke, and this is a friendship that arose from my efforts in publishing his poetry. A similar thing happened with Michael Blumenthal, who is, as you know, now a colleague. There are countless other friendships of just this kind—built around our regard for poetry—that working with lawyer poets has made possible.

Do I think of my work as going against the grain? In all honesty, I don’t. I see my work with lawyer poets as being another expression of the rich history of lawyers engaged in literary enterprises. My work is not against the grain, it is the grain.

Am I concerned that this work is unappreciated by the legal academic community? I can’t say that I am. In an essay, “Why Write?” that appeared in the Journal of Legal Education last year, I noted that “Law teachers dance to the beat of different drummers. We are driven by different visions of legal education as we adopt, adapt, and advocate a law school’s regime of training.” I’ve never let what my colleagues do (or think they are doing) confine my vision of what a lawyer’s education might be, or what it should be. If I had sought appreciation for any of my work as a teacher, I would have given up writing many years ago. In fact, if it were appreciation that drove me, I would never have undertaken my work with lawyer poets.

AM:  You’re right: it is the grain.  I agree completely.  And I’m glad you mentioned your essay “Why Write.”  I read it recently and was planning to ask you about it.  In fact, it was that essay—and in particular the line about “a note of sadness”—that brought about my previous question.  What I wanted to ask you about, from the essay, was your colleague’s assumption—I think you refer to him as “Randy”—that everyone in the legal academy is writing for the same reason.  Your point, I think, is that all writing has a rhetorical purpose: sometimes it’s to persuade; sometimes it’s to explain; sometimes it’s just a tedious exercise to gain tenure; and sometimes it’s to delight and explore.  Some of us can’t help writing.  I sometimes find myself at the kitchen table, and instead of enjoying my meal I’m panicking because this is time I could spend reading and writing.  I was wondering if you could say a little more about this colleague’s assumption and whether it’s systemic or shared by many others.

JE:  In my Journal of Legal Education essay “Why Write?” I was puzzled by a colleague’s notion that he had somehow failed as a scholar because legal colleagues didn’t pay what he thought was enough attention to his writing. My colleague assumed that if you write about a legal doctrine in an informed way the world—that is judges, legislators, law professors—would take note of the work. I found my colleague’s assumption that when we write the world should pay attention to us a bit puzzling. I had always assumed that for the most part what we publish in law reviews gets little or no attention. Most of us don’t write law review articles that are celebrated for changing the law or offering new perspectives on the law.

In my case, much of my writing has been about legal education. I never had any notion that in writing about legal education my colleagues were going to change the way they think about legal education and legal training and begin to rely upon me for guidance. Consequently, I had the sense that in my writing—and I’ve written far more than most of my colleagues—I wasn’t trying to change the world, so my writing did not depend on an appreciative audience. Why, then, should I bother to write? I remember talking with one of my law school professors about writing—who was both prolific and recognized—when I first went into teaching. I knew when I decided to teach that I’d have to write and publish law review articles. I knew, following the scholarship of the professors that I had in law school, that some of them were scholars (and writers) and some of them were not. I was curious, when I talked with Robert Sedler, who had been my teacher in conflicts and in constitutional law, what prompted him to be so prolific as a writer. Bob Sedler told me something I’ll never forget: “Jim,” he said, “the reason I write is that I’ve been puzzling over something and I’ve been reading what has been written about it, and I realize that what I really want to have said about the subject, said in a way that responds to my concerns, has simply not been written. I write to compose something that I would have found valuable and interesting if someone other than I had written it.”

I think Bob Sedler’s notion has left an indelible imprint on my thinking: I write to say something in a way that I think it should be said. Now, does this mean that all of my writing is exquisite, and the answer is clearly no. When I revisit my older work, I have no doubt that what I wrote could have been said better. But that isn’t really the point. The point is that I said it as best I could; I made a down payment in the writing in living up to Bob Sedler’s notion that you write because you want to say something in a different way than what you find that has already been written.

I don’t think I said, and I didn’t mean to imply in my essay, “Why Write?” that my legal colleagues all write for the same reason. Quite the opposite. I assume that my colleagues write for many different reasons. There are undoubtedly some colleagues who write only because the job requires it (and, unfortunately, after they get tenure, some colleagues manage to get away with writing little or nothing at all). Other colleagues write because they want to think of themselves as scholars. This idea of being a scholar never quite caught on with me. For the first decade or so after I started teaching, I wrote to address a particular problem or concern, often something in or about my teaching. Then, somewhere along the way—and I think this came as I began to teach literature and narrative jurisprudence courses—I began to think about writing as writing, or as you put it, writing as a rhetorical endeavor. I wasn’t writing in the rhetorical sense of trying to persuade anyone to adopt my ideas (and yes, there is always something of that whenever we write), but writing as an experience of writing and writing in furtherance of the idea that if I paid particular attention to how I write, I might actually be a writer. I confess that I am far more drawn to the idea of trying to be a writer than to the fantasy of being a scholar.

AM:  There is no doubt in my mind that you are a writer, and I’ve always enjoyed the way you locate readers in particular settings, no matter what the topic of your essay is.  There’s one essay you wrote that begins by talking about how you’re sitting at home waiting for the mail to arrive, and then you head out to the mailbox once the mail arrives.  It’s that sort of thing—very subtle—that I’ve always admired in your work. 

One of the reasons I went to West Virginia for law school was because I had read your essays when I was an undergraduate trying to figure out what to do with my life.  I was an English major, so it didn’t take me long on Google—or whatever interface or browser we were using in those days—to find your work.  I remember thinking, “law school can’t be all bad with people like this in it.”  I even remember emailing you before I went to law school, and you and I talked about a number of things. 

As for scholarship, there are those who write about others, and those who write so that others will write about them one day.  You fall into that latter camp, I think.  One day, people will be writing about your essays and thinking about your approach to pedagogy. 

We should probably be wrapping up soon, so just a couple more questions.  Since we’re on the topic of pedagogy, I’m wondering about your thoughts on the future of legal education.  It seems that every week now there’s a major article lamenting the decline of law schools or highlighting some law school “scam” or scandal.  Many people are predicting that several law schools will cease to exist in the not-too-distant future, and there can be no doubt that there is an overabundance of lawyers, that law school and law school textbooks are too expensive for most young people, and that the legal job market is very tough today.  How does all this impact the future of the legal academy?   

JE:  Allen, I remember quite well our correspondence before you took up the study of law. That kind of personal interaction with a prospective student is unusual. In other disciplines, students often seek out particular teachers and attend schools because of a desire to study with a particular teacher. Law is unusual in that sense. Students go off to law school with the idea of studying law and becoming lawyers; they don’t think all that much about who their teachers will be and the differing conceptions that their teachers have about law and the practice of law. I know that you came to law school with the idea of studying both law and literature, and I know just how rare that situation is. Most students with a literary interest expect to put their literary work on hold while they are in law school. If they made me King of legal education for a day, I think I’d mandate that every law student be exposed to the idea that the law too is a literary enterprise and can be viewed from a literary perspective, and that a literary perspective might be a prism through which we can see our lives as lawyers with better clarity.

I’m afraid I can’t offer anything new, startling, or subversive on the future of legal education. My focus in the past fifteen years has been on my own teaching, writing, and the make-over of the Legal Studies Forum as a literary journal. Some semesters I have almost no students sign up for my courses, and other semesters they arrive in plentiful numbers. I have never quite been able to figure out how that works. I am still intrigued by how my own teaching works (and what to do when I admit to myself it sometimes does not work). I am still writing about what I teach and how I try to teach it. The more I focus on teaching, the less I think about the future of legal education. I sometimes think we’ve lost our bearings in legal education, but we have been so hell-bent on doing that for some 60 plus years now I no longer see it as a problem that awaits us in the future.

AM: This has been a fascinating conversation, and I hope we get a chance to have another one like it.  It’s been so long since I’ve been back to West Virginia that I’d like to ask about the changes to the law school and how the weather and a few friends have been, but I’m mindful that we’re doing this interview not for my personal benefit, but for the benefit of readers, so I’ll hold off.  We can have those other conversations another time. 

I’ll finish by asking if you could say a bit about what Legal Studies Forum has published lately, and what it has in store for upcoming issues.  Since you mentioned your role in transforming Legal Studies Forum into a literary journal, I’d also like to ask you about the history of the journal.  It strikes me that the journal itself probably hasn’t told its own story, and the journal is so interesting and has been around for so long that its story needs to be documented. 

JE:  Allen, I noted earlier in the interview that I had transformed the Legal Studies Forum into a literary journal, and I think that is also a fair description of where the journal is at today. We publish poetry and fiction by and about lawyers, and we have also published memoirs, autobiographical essays, and traditional literary essays (for example, a 2013 issue was devoted to Robert Pirsig’s Zen and the Art of Motorcycle Maintenance). This year we are publishing two collections of poetry (two issues of the journal, each issue devoted to a single poet), a novel, and an issue of miscellany that focuses on “Lawyers and Literature.”

You asked about the history of the Legal Studies Forum. I have been tempted for a good many years now to write what I know of the history of the journal, and having failed to do so, I have tried to encourage some of those who were involved in the founding of the journal to write the history and have been unsuccessful on that front as well. The history of the Legal Studies Forum is of interest to me because the journal has played a rather central part in my life as a writer and as a teacher. Maybe this interview will get me back in the notion to work on the history.

The Legal Studies Forum (LSF) got its start in the mid-1970s as a newsletter of a newly formed organization called the American Legal Studies Association (ALSA). ALSA has, unfortunately, been defunct for a good many years now, and the remaining remnant of that old organization is the journal.

LSF first appeared as an ALSA newsletter in 1976. In 1977, the newsletter became the ALSA Forum and was published under that title until 1984 when it was retitled the Legal Studies Forum, the title the journal still carries. I have given thought on several occasions to changing the title of the journal to reflect its present literary bearings, but I have a fondness for the old title and have never been able to bring myself to give the journal a new name.

The journal slowly evolved from an organizational newsletter into a “forum” that in its published form looked like it had been printed in someone’s basement. It most definitely had a homemade look and that sense of being marginal has followed the journal to this day (and I have done little to have it otherwise). So, the journal didn’t begin as a journal, it began with ALSA, an organization created by colleagues in the Department of Legal Studies at the University of Massachusetts-Amherst. The UMass department of legal studies was created by Ron Pipkin, John Bonsignore (now deceased), and Peter d’Errico, who were trying to escape the business school where they were teaching business law.

The early 1970s was a time when the antinomian streams flowing in the academic disciplines—sociology, anthropology, and psychology—were subjecting the disciplines to challenging changes. We had begun to hear talk of breaking down the barriers between disciplines, and we were beginning, in the mid and late 1960s, to see the appearance of new interdisciplinary programs: women’s studies; African American studies; environmental studies. Bonsignore, d’Errico, and Pipkin developed the idea for a stand-alone Department of Legal Studies that would make it possible for UMass students to major in law the way they would philosophy or sociology. Their approach to legal studies was interdisciplinary, critical, and humanistic. They wanted to establish a beachhead for legal studies that would stand apart from the kind of vocational training and empty philosophical posturing they associated with legal education. ALSA and the Legal Studies Forum represented legal studies as one of the liberal arts; the study of law was viewed as being a humanistic discipline. Bonsignore, d’Errico, and Pipkin, with uncanny foresight, viewed legal studies as an interdisciplinary crossroads with law being a central focus. What the founders of ALSA could not foresee is that legal scholarship (and to a far lesser extent, legal education) would undergo the same kind of sea-change with the arrival, in the late 1970s, of Critical Legal Studies, feminist jurisprudence, and law and literature (with variant strains of legal storytelling and narrative jurisprudence).

ALSA was founded as a home away from home for colleagues who were teaching law in the various social sciences (anthropology, sociology, psychology) and in the humanities (philosophy and history) who had some reason to identify their work with law as well as with the core discipline that defined their university existence. Some of these teachers were law-trained, and some were not. The folks at UMass begin to think that the legal studies program they were pioneering might be the basis for legal studies programs around the country. The late 1970s was also a time when paralegal programs were beginning to appear in undergraduate studies, and teachers in these programs were looking for an intellectual home base. Interestingly enough, in the early days of ALSA there was a concern that the legal studies movement—and yes, there was some notion that a “movement” was underway—might drift in the direction of paralegal programs, and you can be sure that Bonsignore, d’Errico, and Pipkin had no desire for that to happen. They didn’t discourage paralegal teachers from participation in ALSA, but the ALSA mantra for their own Department of Legal Studies—and for the journal—was always: interdisciplinary, critical, and humanistic. That was enough to keep the paralegal folks at bay.

I should note that while the UMass-Amherst folks were always thinking about teaching law outside law schools, indeed, they argued that it was the very fact that law was so often taught only in law schools that underscored the need for a legal studies movement, they were always more than welcoming to the few law teachers that became involved in the organization. I was one of the early “outsiders” to cast my lot with ALSA, but not the first. Wythe Holt, the Marxist legal historian, and a law professor at the University of Alabama, is the only known legal colleague who attended both the first ALSA conference in 1977 and the first Critical Legal Studies conference held at the University of Wisconsin, also in 1977. Wythe published several articles in LSF, with one article appearing in the second volume of the journal when it was then the ALSA Forum. I attended the second ALSA conference in 1978 at Rutgers, and gave my first paper at an ALSA conference in Pittsburgh the following year. J. Allen Smith, at Rutgers law school, one of the old “law and literature” men, was also involved in the early conferences and published several articles in LSF in the early years. (We were doing law and literature articles in LSF before “law and literature” picked up momentum in the early 80s.) David Papke, who obtained a Ph.D. in American Studies (University of Michigan, 1984), now on the law faculty at Marquette University, attended the early ALSA conferences, and served as editor of LSF (1990-1996) before I took over as editor. Judith Koffler, another widely-respected law and literature scholar, appeared at most of the early ALSA conferences.

ALSA failed to survive but it did succeed in one sense: The ALSA conferences were lively affairs, with a degree of informality and a sense of collegial extended family, that made it possible for me, and colleagues like Judith Koffler and Wythe Holt to find like-minded colleagues. (I should note that both Koffler and Holt ended up as visiting professors at West Virginia and both would have remained on the faculty if it had not been for the short-sighted decision-making of my colleagues.) ALSA, and now LSF, have been most successful in helping to create a community for colleagues who think of the study of law as a liberal art.

Is there a “legal studies movement” in existence today? I don’t think so. Have the ideas and ideals associated with the “legal studies movement” found their way into legal education? I think they have. This immigration of ideas has taken different forms: the humanistic legal education movement (1977-1985), the law and literature movement (now commonly attributed to James Boyd White’s The Legal Imagination published in 1973, a movement that gained more attention in the late 70s, early 80s, and has now gained the status as a “school” of contemporary jurisprudence); Critical Legal Studies (CLS arrived in legal education at the same time ALSA was founded, and is now, so far as most of us can see, given up its corporeal existence).

I don’t see anything these days to suggest that anyone is talking about a “legal studies movement.” The one person that persists in writing about “legal studies” is Austin Sarat at Amherst College. In the last 20 years, Sarat, writing about the teaching of law as a liberal art in undergraduate schools, has been a one-man legal studies movement!

Did the “legal studies movement” spearheaded by ALSA change law school training? I think the literal answer is no. What happened in legal education, as I have alluded to here, is that legal scholarship (law reviews/law journals) now routinely publishes interdisciplinary work. In the past four decades (that happen to span the years that I have been teaching), there has been, shall we say, a “greening” of legal scholarship that encompasses the interdisciplinary, critical, and humanistic approaches that my UMass-Amherst colleagues and LSF tried to focus on. Unfortunately, the UMass model for legal studies did not find widespread adoption, and the liberal arts perspective in legal education, notwithstanding the greening of legal scholarship, is still a marginal enterprise.

AM:  Jim, thanks so much for this very interesting, very informative interview.  I’ve really enjoyed this.

JE:  Allen, I greatly appreciate your continued interest in my work and this rare opportunity to present in more detail what I have been trying to do as a teacher, writer, and editor. Thanks for all the effort you have put into making this interview possible.

Allen Mendenhall Interviews Edward W. Younkins

In American Literature, Arts & Letters, Austrian Economics, Book Reviews, Books, British Literature, Economics, Fiction, Humane Economy, Humanities, Imagination, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Novels, Philosophy, Politics on February 12, 2014 at 8:45 am
Edward W. Younkins

Edward W. Younkins

AM:       Thank you for taking the time to do this interview.  I’d like to start by asking why you chose to write Exploring Capitalist Fiction.  Was there a void you were seeking to fill?

EY:          The origins of this book go back to the Spring of 1992 when I began teaching a course called Business Through Literature in Wheeling Jesuit University’s MBA program.  Exploring Capitalist Fiction is heavily based on my lectures and notes on the novels, plays, and films used in this popular course over the years and on what I have learned from my students in class discussions and in their papers.

The idea to write this book originated a few years ago when one of Wheeling Jesuit University’s MBA graduates, who had taken and enjoyed the Business Through Literature course, proposed that I write a book based on the novels, plays, and films covered in that course.  I agreed as I concluded that the subject matter was important and bookworthy and that the book would be fun for me to write and for others to read.  I went on to select twenty-five works to include in the book out of the more than eighty different ones that had been used in my course over the years.  I have endeavored to select the ones that have been the most influential, are the most relevant, and are the most interesting.  In a few instances, I have chosen works that I believe to be undervalued treasures.

I was not intentionally trying to fill a void as there are a number of similar books by fine authors such as Joseph A. Badaracco, Robert A. Brawer, Robert Coles, Emily Stipes Watts, and Oliver F. Williams, among others.  Of course, I did see my evenhanded study of business and capitalism in literature as a nice complement and supplement to these works.

AM:       I assume that you’ll use this book to teach your own courses, and I suspect other teachers will also use the book in their courses.  Anyone who reads the book will quickly understand the reason you believe that imaginative literature and film have pedagogical value in business courses, but would you mind stating some of those reasons for the benefit of those who haven’t read the book yet?

EY:          The underpinning premise of this book and of my course is that fiction, including novels, plays, and films, can be a powerful force to educate students and employees in ways that lectures, textbooks, articles, case studies, and other traditional teaching approaches cannot.  Works of fiction can address a range of issues and topics, provide detailed real-life descriptions of the organizational contexts in which workers find themselves, and tell interesting, engaging, and memorable stories that are richer and more likely to stay with the reader or viewer longer than lectures and other teaching approaches.  Imaginative literature can enrich business teaching materials and provide an excellent supplement to the theories, concepts, and issues that students experience in their business courses.  Reading novels and plays and watching films are excellent ways to develop critical thinking, to learn about character, and to instill moral values.  It is likely that people who read business novels and plays and watch movies about business will continue to search for more of them as sources of entertainment, inspiration, and education.

AM:       Who are the intended audiences for your new book?

EY:          My target audiences include college students, business teachers, general readers, and people employed in the business world.  My summaries and analyses of twenty-five works are intended to create the feel of what it is like to work in business.  The premise of the book is that fiction can provide a powerful teaching tool to sensitize business students without business experiences and to educate and train managers in real businesses.  Studying fictions of business can provide insights to often inexperienced business students and new employees with respect to real-life situations.

In each of my 25 chapters I provide a sequential summary of the fictional work, interspersed with some commentary that highlights the managerial, economic, and philosophical implications of the ideas found in the work.  My emphasis is on the business applications of the lessons of particular novels, plays, and films.  This book highlights the lessons that an individual can take from each work and apply to his or her own life.  It is not literary analysis for its own sake.

I do not delve deeply into these novels, plays, and films in order to identify previously-covered and previously-uncovered themes in existing scholarship.  My book is essentially a study guide for people interested in becoming familiar with the major relevant themes in significant works of literature and film.  The book can also serve as a guide for professors who desire to expand their teaching approaches beyond the traditional ones employed in schools of business.

Of course, literary scholars can use my book as a starting point, catalyst, or reference work for their own in-depth scholarly studies of these and other works.  For example, I can envision a number of scholars, from a variety of viewpoints, contributing essays to book collections devoted to different literary works.  One possible collection that readily comes to mind would be devoted to David Mamet’s Glengarry Glen Ross.  Other candidates for potential collections might include Howell’s The Rise of Silas Lapham, Norris’s The Octopus, Dreiser’s The Financer, Cahan’s The Rise of David Levinsky, Lewis’s Babbitt, Miller’s Death of a Salesman, Hawley’s Executive Suite, Lodge’s Nice Work, Sterner’s Other People’s Money, among others.  It would be great if some of the contributing literary scholars to these volumes would come from pro-business, pro-capitalist thinkers such as Paul Cantor, Stephen Cox, Ryan McMaken, Sarah Skwire, Amy Willis, Michelle Vachris, and yourself.  As you know most literary critics are from the left.  Those mentioned above celebrate individualism and freedom in place of collectivism and determinism.

AM:       What can be learned from business fiction?

EY:          Fiction can be used to teach, explicate, and illustrate a wide range of business issues and concepts.  Many fictional works address human problems in business such as managing interpersonal conflict and office politics; using different styles of management; the potential loss of one’s individuality as a person tends to become an “organization man”; the stultifying effect of routine in business; the difficulty in balancing work life and home life; hiring and keeping virtuous employees; maintaining one’s personal integrity while satisfying the company’s demands for loyalty, conformity and adaptation to the firm’s culture; communication problems a business may experience; fundamental moral dilemmas; depersonalization and mechanization of human relationships; and so on.  Fictional works tend to describe human behavior and motivations more eloquently, powerfully, and engagingly than texts, articles, or cases typically do.  Literary authors and filmmakers are likely to develop and present ideas through individual characters.  They depict human insights and interests from the perspective of individuals within an organizational setting.  Reading imaginative literature and watching films are excellent ways to develop critical thinking and to learn about values and character.

Many novels, plays, and films are concerned with the actual operation of the business system.  Some deal directly with business problems such as government regulation, cost control, new product development, labor relations, environmental pollution, health and safety, plant openings and closings, tactics used and selection of takeover targets, structuring financial transactions, succession planning, strategic planning, the creation of mission statements, the company’s role in the community, social responsibility, etc.  Assessing fictional situations makes a person more thoughtful, better prepared for situations, and better able to predict the consequences of alternative actions.  Fiction can address both matters of morality and practical issues.  There are many fine selections in literature and film which prompt readers to wrestle with business situations.

Older novels, plays, and films can supply information on the history of a subject or topic.  They can act as historical references for actual past instances and can help students to understand the reasons for successes and failures of the past.  Older literature can provide a good history lesson and can help people to understand the development of our various businesses and industries.  These stories can be inspiring and motivational and can demonstrate how various organizations and managers were able to overcome obstacles, adapt, and survive.  Fictional works are cultural artifacts from different time periods that can be valuable when discussing the history of business.  Many fictional works present history in a form that is more interesting than when one just reads history books.

Imaginative literature reflects a variety of cultural, social, ethical, political, economic, and philosophical perspectives that have been found in American society.  Various images of businessmen have appeared in fictional works.  These include the businessman as Scrooge-like miser, confidence man, robber baron, hero, superman, technocrat, organization man, small businessman, buffoon, rugged individualist, corporate capitalist, financial capitalist, man of integrity, etc.

AM:       How will your teaching approach change in your Business Through Literature course now that you have published your own book on the subject?

EY:          In the past students in this course have read, analyzed, and discussed novels, plays, and films.  Each student prepared a minimum of 6 short papers (2000 words each) on the assigned works.  Grades were based on these papers and class discussions.

I am experimenting this semester using my book in the class for the first time.  I am requiring each student to take notes on each chapter of the book to help them in bringing up topics for class discussion and in participating in class discussions.  Each student is also required to prepare and turn in three essay questions on each chapter.  These are turned in before each relevant class.  Grades for the class are based on class participation and two essay tests.

AM:       Isn’t the reverse also true that literature students ought to study economics or at least gain an understanding of business from something besides imaginative literature and film, which tend not to portray capitalists in a favorable light?

EY:          It would definitely be beneficial for literature students to study classes in business areas such as management, marketing, accounting, and finance.  It would help them somewhat if they took a course or two in economics.  Unfortunately, almost all college-level economics courses are based on Keynesian economics.  I would encourage anyone who takes such courses to read and study Austrian economics in order to gain a more realistic perspective.

AM:       You’ve written a great deal about Ayn Rand, and the chapter on Atlas Shrugged is the longest one in your book.  Rand can be a divisive figure, even, perhaps especially, among what you might call “libertarians” or “free marketers” or “capitalists” and the like.  But even the people in those categories who reject Objectivism tend to praise Rand’s novels.  What do you make of that, and do you think there’s a lesson there about the novel as a medium for transmitting philosophy?

EY:          I suspect that there are a lot of people like me who value “novels of ideas.”  There have been many good philosophical novels but none have been as brilliantly integrated and unified as Atlas Shrugged.  Rand characterizes grand themes and presents an entire and integrated view of how a man should live his life.  Rand’s great power comes from her ability to unify everything in the novel to form an integrated whole.  The theme and the plot are inextricably integrated.  Rand is a superb practitioner of synthesis and unity whose literary style and subject are organically linked and fused to the content of her philosophy.  She unifies the many aspects of Atlas Shrugged according to the principles of reality.  People from the various schools of “free-market” thought are in accord in promoting an appropriate reality-based social system in which each person is free to strive for his personal flourishing and happiness.

AM:       I want to ask about Henry Hazlitt’s Time Will Run Back, the subject of chapter twelve of your book.  Why do you think this book has not received much attention?  It has been, I’d venture to say, all but forgotten or overlooked by even the most ardent fans of Hazlitt.  Is the book lacking something, or are there other factors at play here?

EY:          Hazlitt’s novel may not be “literary” enough for many people.  However, in my opinion, the author does skillfully use fiction to illustrate his teachings on economics.  I think that the book also has a good story line.  Economics professors tend to shy away from using it in their classes.  Some may be so quantitatively oriented that they cannot envision using a novel to teach economics.  Others may perceive the Austrian economics principles found in Time Will Run Back to not fit in with the Keynesian economics principles found in most textbooks (and of course they are right).

AM:       Thank you again for doing this interview.  All the best in 2014.

0739184261[1]

Edward W. Younkins. Exploring Capitalist Fiction:  Business Through Literature and Film. Lanham,

Maryland: Lexington Books, 2014.

 

Transcendental Liberty

In America, American History, Arts & Letters, Creativity, Emerson, Essays, Ethics, History, Humane Economy, Humanities, Libertarianism, Literary Theory & Criticism, Literature, Nineteenth-Century America, Philosophy, Poetry, Politics, Property, Rhetoric, Western Philosophy, Writing on January 15, 2014 at 8:45 am

Allen 2

This essay originally appeared here in The Freeman.

“The less government we have, the better.” So declared Ralph Waldo Emerson, a  man not usually treated as a classical liberal. Yet this man—the Sage of  Concord—held views that cannot be described as anything but classical liberal or  libertarian.

None other than Cornel West, no friend of the free market, has said that  “Emerson is neither a liberal nor a conservative and certainly not a socialist  or even a civic republican. Rather he is a petit bourgeois libertarian, with at  times anarchist tendencies and limited yet genuine democratic sentiments.” An  abundance of evidence supports this view. Emerson was, after all, the man who  extolled the “infinitude of the private man.” One need only look at one of  Emerson’s most famous essays, “Self Reliance,” for evidence of his  libertarianism.

“Self-Reliance” is perhaps the most exhilarating expression of individualism  ever written, premised as it is on the idea that each of us possesses a degree  of genius that can be realized through confidence, intuition, and nonconformity.  “To believe your own thought, to believe that what is true for you in your  private heart is true for all men,” Emerson proclaims, “that is genius.”

Genius, then, is a belief in the awesome power of the human mind and in its  ability to divine truths that, although comprehended differently by each  individual, are common to everyone. Not all genius, on this view, is necessarily  or universally right, since genius is, by definition, a belief only, not a  definite reality. Yet it is a belief that leads individuals to “trust thyself”  and thereby to realize their fullest potential and to energize their most  creative faculties. Such self-realization has a spiritual component insofar as  “nothing is at last sacred but the integrity of your own mind” and “no law can  be sacred to me but that of my nature.”

According to Emerson, genius precedes society and the State, which corrupt  rather than clarify reasoning and which thwart rather than generate  productivity. History shows that great minds have challenged the conventions and  authority of society and the State and that “great works of art have no more  affecting lesson for us than this. They teach us to abide by our spontaneous  impression with good-humored inflexibility then most when the whole cry of  voices is on the other side.” Accordingly, we ought to refuse to “capitulate to  badges and names, to large societies and dead institutions.” We ought, that is,  to be deliberate, nonconformist pursuers of truth rather than of mere  apprehensions of truth prescribed for us by others. “Whoso would be a man,”  Emerson says, “must be a noncomformist.”

Self-Interest and Conviction

For Emerson, as for Ayn Rand, rational agents act morally by pursuing their  self-interests, including self-interests in the well-being of family, friends,  and neighbors, who are known and tangible companions rather than abstract  political concepts. In Emerson’s words, “The only right is what is after my  constitution, the only wrong what is against it.” Or: “Few and mean as my gifts  may be, I actually am, and do not need for my own assurance or the assurance of  my fellows any secondary testimony.”

It is not that self-assurance equates with rightness, or that stubbornness  is a virtue; it is that confidence in what one knows and believes is a condition  precedent to achieving one’s goals. Failures are inevitable, as are setbacks;  only by exerting one’s will may one overcome the failures and setbacks that are  needed to achieve success.

If, as Emerson suggests, a “man is to carry himself in the presence of all  opposition, as if everything were titular and ephemeral but he,” how should he  treat the poor?  Emerson supplies this answer:

Do not tell me, as a good man did to-day, of my  obligation to put all poor men in good situations. Are they my poor? I tell  thee, thou foolish philanthropist, that I grudge the dollar, the dime, the cent,  I give to such men as do not belong to me and to whom I do not belong. There is  a class of persons to whom by all spiritual affinity I am bought and sold; for  them I will go to prison, if need be; but your miscellaneous popular charities;  the education at college of fools; the building of meeting-houses to the vain  end to which many now stand; alms to sots; and the thousandfold Relief  Societies;—though I confess with shame I sometimes succumb and give the dollar,  it is a wicked dollar which by and by I shall have the manhood to withhold.

These lines require qualification. Emerson is not damning philanthropy or  charity categorically or unconditionally; after all, he will, he says, go to  prison for certain individuals with whom he shares a special relationship. He  is, instead, pointing out, with much exhibition, that one does not act morally  simply by giving away money without conviction or to subsidize irresponsible,  unsustainable, or exploitative business activities. It is not moral to give away  a little money that you do not care to part with, or to fund an abstract cause  when you lack knowledge of, and have no stake in, its outcome. Only when you  give money to people or causes with which you are familiar, and with whom or  which you have something at stake, is your gift meaningful; and it is never  moral to give for show or merely to please society. To give morally, you must  mean to give morally—and have something to lose.

Dissent

Emerson famously remarks that a “foolish consistency is the hobgoblin of  little minds, adored by little statesmen and philosophers and divines.” Much ink  has been spilled to explain (or explain away) these lines. I take them to mean,  in context, that although servile flattery and showy sycophancy may gain a  person recognition and popularity, they will not make that person moral or great  but, instead, weak and dependent. There is no goodness or greatness in a  consistency imposed from the outside and against one’s better judgment; many  ideas and practices have been consistently bad and made worse by their very  consistency. “With consistency,” therefore, as Emerson warns, “a great soul has  simply nothing to do.”

Ludwig von Mises seems to have adopted the animating, affirming  individualism of Emerson, and even, perhaps, Emerson’s dictum of nonconformity.  Troping Emerson, Mises remarks that “literature is not conformism, but dissent.”  “Those authors,” he adds, “who merely repeat what everybody approves and wants  to hear are of no importance. What counts alone is the innovator, the dissenter,  the harbinger of things unheard of, the man who rejects the traditional  standards and aims at substituting new values and ideas for old ones.” This man  does not mindlessly stand for society and the State and their compulsive  institutions; he is “by necessity anti-authoritarian and anti-governmental,  irreconcilably opposed to the immense majority of his contemporaries. He is  precisely the author whose books the greater part of the public does not buy.”  He is, in short, an Emersonian, as Mises himself was.

The Marketplace of Ideas

To be truly Emersonian, you may not accept the endorsements and propositions  in this article as unconditional truth, but must, instead, read Emerson and  Mises and Rand for yourself to see whether their individualism is alike in its  affirmation of human agency resulting from inspirational nonconformity. If you  do so with an inquiring seriousness, while trusting the integrity of your own  impressions, you will, I suspect, arrive at the same conclusion I have  reached.

There is an understandable and powerful tendency among libertarians to  consider themselves part of a unit, a movement, a party, or a coalition, and of  course it is fine and necessary to celebrate the ways in which economic freedom  facilitates cooperation and harmony among groups or communities; nevertheless,  there is also a danger in shutting down debate and in eliminating competition  among different ideas, which is to say, a danger in groupthink or compromise, in  treating the market as an undifferentiated mass divorced from the innumerable  transactions of voluntarily acting agents. There is, too, the tendency to become  what Emerson called a “retained attorney” who is able to recite talking points  and to argue predictable “airs of opinion” without engaging the opposition in a  meaningful debate.

Emerson teaches not only to follow your convictions but to engage and  interact with others, lest your convictions be kept to yourself and deprived of  any utility. It is the free play of competing ideas that filters the good from  the bad; your ideas aren’t worth a lick until you’ve submitted them to the test  of the marketplace.

“It is easy in the world,” Emerson reminds us, “to live after the world’s  opinion; it is easy in solitude to live after our own; but the great man is he  who in the midst of the crowd keeps with perfect sweetness the independence of  solitude.” Let us stand together by standing alone.

Flash

In Arts & Letters, Creative Writing, Humanities, Poetry, Writing on December 4, 2013 at 8:45 am

Allen 2

This poem first appeared here in The Aroostook Review.

 

Photograph in a Bar, Washington, D.C.

 

The guy in the foreground is Quint

my friend tells me

pointing to and holding

a photograph at arm’s length.

Behind Quint, on the table

two Bud Light bottles sweat

in sticky puddles, framing

a fluorescent margarita.

In Quint’s hand: a cell phone.

There’s a purse on the table

no girl to claim it

just an empty barstool

and silhouettes

of nameless faces

filling dark spaces.

Seven Points of Grammar

In Advocacy, Arts & Letters, Communication, Essays, Law, Legal Education & Pedagogy, Legal Research & Writing, Teaching, Writing on November 20, 2013 at 8:45 am

Allen 2

An earlier version of this piece appeared here in The Alabama Lawyer.

As a staff attorney to Chief Justice Roy S. Moore, I read several briefs and petitions each day.  I have noticed that certain grammatical errors are systemic among attorneys.  Some errors are excusable; others aren’t.  Here are seven errors that are inexcusable.

1.    “Whoever” and “Whomever”

Many attorneys do not know the difference between whoever and whomever.  Test your knowledge by answering these questions:

Which of the following sentences is correct?

A.  Give the document to whoever requests it.

B.  Give the document to whomever requests it.

Which of the following sentences is correct?

A.  Whoever arrives first will get a copy.

B.  Whomever arrives first will get a copy.

If you answered A to both questions, you were correct.  Here is a trick to help determine whether to use whoever or whomever:

STEP ONE:  Imagine a blank space where you wish to use whoever or whomever.

Example: Give the document to ______ requests it.

STEP TWO:  Split the blank space to create two sentences; then fill in the blanks with the pronouns he or him.

Example: Give the document to himHe requests it.

STEP THREE:  Whenever you fill in the blank space with a him/he combination, use whoever.  As we have already seen, the previous sentence should read, “Give it to whoever requests it.”  Whenever you fill in the blank space with a him/him combination, use whomever.

Him/He = whoever

Him/Him = whomever

Here are more examples:

STEP ONE:           You should hire ______ Pete recommends.

STEP TWO:          You should hire him.  Pete recommends him.

STEP THREE:      You should hire whomever Pete recommends.

 

STEP ONE:            This letter is to ______ wrote that brief.

STEP TWO:           This letter is to himHe wrote that brief.

STEP THREE:       This letter is to whoever wrote that brief.

 

STEP ONE:           The prize is for _____ wins the contest.

STEP TWO:          The prize is for himHe wins the contest.

STEP THREE:      The prize is for whoever wins the contest.

 

STEP ONE:            The lawyer made a good impression on ______ he met.

STEP TWO:           The lawyer made a good impression on him.  He met him.

STEP THREE:       The lawyer made a good impression on whomever he met.

 

STEP ONE:            The lawyer tried to make a good impression on ______ was there.

STEP TWO:           The lawyer tried to make a good impression on himHe was there.

STEP THREE:       The lawyer tried to make a good impression on whoever was there.

2.    “Who” and “Whom”

The difference between who and whom has fallen out of favor in common speech, but retains its importance in formal writing.  Use who if the pronoun is a subject or subject complement in a clause.  Use whom if the pronoun is an object in a clause.  A trick to help determine whether to employ who or whom is to rephrase the sentence using a personal pronoun such as he or him.  Consider the following:

A.      Proper: Whom did you meet?  (Rephrase: I met him.)

           Him is objective, so whom is proper.

Improper:  Who did you meet?

B.       Proper: Who do you think murdered the victim?  (Rephrase: I think he murdered the victim.)

           He is subjective, so who is proper.

Improper: Whom do you think murdered the victim?

C.        Proper: Who was supposed to finish that brief last week?  (Rephrase: He was supposed to finish that brief last week.)

            He is subjective, so who is proper.

Improper: Whom was supposed to finish that brief last week?

D.        Proper:  Justice Brown is the man for whom I voted.  (Rephrase: I voted for him.)

            Him is objective, so whom is proper.

Improper:  Justice Brown is the man who I voted for.

3.    “As Such”

I used to practice at a mid-sized law firm in Atlanta.  Tasked with reviewing the writing of all associate attorneys at the firm, one partner became hardheaded about two words: “as such.”  He always struck through the word “therefore” and replaced it with the words “as such.”  He did this so often that I finally decided to correct him. I was tired of watching him substitute a grammatical error for a sound construction.

When I spoke up, he got defensive.  “As such means ‘therefore,’” he said.

He was wrong.

The Random House Dictionary (2013) describes “as such” as an “idiom” that means “as being what is indicated” or “in that capacity.”  In other words, after you have described something, you use the phrase “as such” to refer back to that something “as described.”  Here are examples:

  1. He is the president of the university; as such, he is responsible for allocating funds to each department.
  2. This is a matter of law; as such, it is subject to de novo review.
  3. Theft is a crime; treat it as such.

In these examples, “as such” properly refers back to a definite antecedent.

“As such” appears regularly in legal writing.  Whenever I see this construction misused, I think about that partner in Atlanta and become agitated.

“As such” is a simple construction; as such, it entails a simple application.  Don’t be shy about calling out your colleagues when you see them misuse this construction, even if you are a “lowly” associate.  You might just save them—and the partners—from embarrassment.

4.    The Colon

Although many rules govern the use of colons, I want to focus on this one: Never place a colon between a preposition and its object or between a verb and its complement.  Likewise, never place a colon after such words or phrases as especially, including, or such as.

These sentences violate this rule:

  1. He was convicted of several crimes, including: first-degree robbery, arson, third-degree burglary, and second-degree forgery.
  2. Some affirmative defenses are: statute of frauds, waiver, statute of limitations, and contributory negligence.
  3. Most restrictive covenants have provisions about the developer or declarant such as: “Property Subject to the Declaration,” “Easements,” “Assessments,” and “Membership.”
  4. She enjoys the sites, especially: the courthouse, the town square, and the memorial.

No colon is necessary in these sentences.

5.    Subject-Verb Agreement: “Neither,” “Nor,” “Either,” “Each,” and “Number”

Attorneys generally understand subject-verb agreement.  A verb must agree with its subject in number.  That is, a singular subject must take a singular verb; a plural subject must take a plural verb.  The following words, however, give attorneys trouble: neither, nor, either, each, and number.  What follows should clarify how to make these nouns agree with a verb.

Neither Mel’s clients nor his associate ___ going to the meeting tomorrow.

When you pair neither and nor as conjunctions linking two nouns, choose the noun closest to the verb and let that noun determine whether you use is or are.  In the example above, associate is closest to the verb.  Associate is singular, so the proper verb is is.

Neither of the partners ___ attending the meeting.

Neither is singular and the subject of the sentence.  It requires a singular verb: is.  The verb is not are if the plural noun (partners) is not the subject.  Partners is not the subject; it is part of a prepositional phrase.

___ either of you available to take his deposition tomorrow?

Either is singular and the subject of the sentence.  It requires a singular verb: is.  The verb is not are if the plural noun (you) is not the subject.  You is not the subject; it is part of a prepositional phrase.

Each of you ___ contributed valuable insights to the case.

The pronoun each is the subject of the sentence.  Each is singular and requires a singular verb: has.  Many attorneys will write have because they think that each is plural or that the verb must modify the plural noun youYou is part of a prepositional phrase and cannot serve as the subject of the sentence.

The number of thefts ___ increasing.

Number can be singular or plural depending on the context.  Here, number is used with the definite article the.  Therefore, the singular verb (is) applies.  In most cases, if number is used with the indefinite article a, then the plural verb (are) applies.

6.    The Possessive Form of Nouns Ending in “S”

My sixth grade teacher instructed me never to add ’s after a singular noun ending with an s or s sound.  She was wrong.  The trick to nouns ending with an s or an s sound is that no trick exists: the rule is the same for these nouns as for all other nouns (with a few notable exceptions, such as the words “its” and “yours”).  To form a singular possessive, add ’s to the singular noun.  To form a plural possessive, add an apostrophe to the plural noun.  Here are some examples:

Singular Noun

Mr. Jones               Mr. Jones’s

Mrs. Burnes           Mrs. Burnes’s

The boss                The boss’s

Plural Noun

The Joneses           The Joneses’

The Burnses           The Burnses’

The bosses             The bosses’

7.    “Only”

Only is one of the most regularly used words in the English language.  It is also one of the most regularly misused modifiers.  Below are examples of how attorneys misuse only in petitions and briefs.  I have altered the language in these examples to conceal the identity of the authors.

A.  “The appellant only references the reason why the appellee did not seek counseling.”

This sentence implies that the appellant does nothing—nothing at all—but reference the reason why the appellee did not seek counseling.  The appellant does not eat, sleep, think, talk, love, feel, or breathe.  The only thing he does is reference the reasons why the appellant did not seek counseling.  He must be a robot.  The author of this sentence intended to say the following: “The appellant references only the reason why the appellee did not seek counseling.”  This revised sentence means that, of all the reasons from which he could have chosen, the appellant referenced only one.  The appellant could have referenced other reasons, but did not.

B.  “He only robbed two people.”

This example suggests that “he” has never done anything—anything at all—but rob two people.  If all you have ever done is rob two people, your entire existence has been a crime.  The author of this sentence intended to say the following: “He robbed only two people.”  This revised statement should cause one to ask, “That’s it?  Just two people?”

C.  “The agency granted the application on the condition that the hospital only will move 300 beds.”

A hospital that does nothing but move 300 beds will not help sick patients.  The author of this sentence should have written, “The agency granted the application on the condition that the hospital will move only three-hundred beds.”  In this revised sentence, “only” modifies “three-hundred beds” rather than the verb “will move.”

Attorneys are educated; we tend to avoid using language if we aren’t certain about its grammatical soundness.  But something about the foregoing rules baffles us.

The rules, though, are easy.  What’s difficult is overcoming habits and industry-wide error.  If you aren’t certain about a rule, don’t just ask your colleagues for the solution.  And don’t take your colleagues’ suggestions at face value.  Consult a good, reliable grammar book.  Doing so will improve your writing and possibly raise the quality of writing among the entire profession.

Literature and Liberty: Essays in Libertarian Literary Criticism

In Arts & Letters, Austrian Economics, Books, Economics, Emerson, Fiction, History, Humane Economy, Humanities, Imagination, Justice, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, News and Current Events, News Release, Novels, Philosophy, Politics, Property, Rhetoric, Shakespeare, The Novel, Transnational Law, Western Civilization, Western Philosophy, Writing on November 15, 2013 at 8:46 am

Allen 2

My forthcoming book, Literature and Liberty: Essays in Libertarian Literary Criticism, is now available for pre-order here at Amazon.com or here at Rowman & Littlefield’s website.  From the cover:

The economic theories of Karl Marx and his disciples continue to be anthologized in books of literary theory and criticism and taught in humanities classrooms to the exclusion of other, competing economic paradigms. Marxism is collectivist, predictable, monolithic, impersonal, linear, reductive — in short, wholly inadequate as an instrument for good in an era when we know better than to reduce the variety of human experience to simplistic formulae. A person’s creative and intellectual energies are never completely the products of culture or class. People are rational agents who choose between different courses of action based on their reason, knowledge, and experience. A person’s choices affect lives, circumstances, and communities. Even literary scholars who reject pure Marxism are still motivated by it, because nearly all economic literary theory derives from Marxism or advocates for vast economic interventionism as a solution to social problems.

Such interventionism, however, has a track-record of mass murder, war, taxation, colonization, pollution, imprisonment, espionage, and enslavement — things most scholars of imaginative literature deplore. Yet most scholars of imaginative literature remain interventionists. Literature and Liberty offers these scholars an alternative economic paradigm, one that over the course of human history has eliminated more generic bads than any other system. It argues that free market or libertarian literary theory is more humane than any variety of Marxism or interventionism. Just as Marxist historiography can be identified in the use of structuralism and materialist literary theory, so should free-market libertarianism be identifiable in all sorts of literary theory. Literature and Liberty disrupts the near monopolistic control of economic ideas in literary studies and offers a new mode of thinking for those who believe that arts and literature should play a role in discussions about law, politics, government, and economics. Drawing from authors as wide-ranging as Emerson, Shakespeare, E.M. Forster, Geoffrey of Monmouth, Henry Hazlitt, and Mark Twain, Literature and Liberty is a significant contribution to libertarianism and literary studies.

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