Saturday, March 28, 2015

The First Civil Right: How Liberals Built Prison America by Naomi Murakwa

The first civil right of every American is to be free from domestic violence . . . . And to those who say that law-and-order is the code word for racism, here is a reply: Our goal is justice--justice for every American. --Richard Nixon's Acceptance of the Republican Party Nomination for President, August 8, 1968.

The [first] Condition of Our Rights [is] the Right to Safety and Security of the Person . . . . Many fear entanglement with the law because of the knowledge that the justice rendered in some courts is not equal for all persons.  --President Harry S. Truman's Committee on Civil Rights, To Secure These Rights, 1947.

Professor Murakawa starts her book with these two quotations, taken from different eras, both asserting something akin to the first civil right, and seemingly different in meaning.  The first is an assertion of freedom from criminal violence.  The second asserts freedom from racial, state-sanctioned violence.  Murakawa's book unpacks these seemingly different positions to show that they had the lead to the same result: over-criminalization and mass-incarceration.  She does so by following criminal justice debates starting in the immediate post-World War II era through the 1990s.  Her thesis is that race-liberals and/or Democrats are as accountable for the current state of criminal justice as race-conservatives and Republicans.

So, she explains, after World War II, as we started to confront racial injustice, one of the issues lawmakers had to deal with was white mob-violence against African-Americans.  Race-conservatives took the position that the mob-violence was an inevitable result to black criminality; thus, any end to white mob-violence required addressing black criminality in the form of harsher punishments.  Race-liberals, in turn, addressed white mob-violence in the context of procedural due process and police professionalization.  So, race-conservatives and race-liberals were able to compromise with legislation that created more procedures and more police---for race-conservatives, this meant more law enforcement; for race-liberals this meant better (and so, the idea went, fairer) law enforcement.

The problem with this framing of the issue, Murakawa explains, is that it concedes the principle of black criminality.  By framing the issue in terms of procedural due process and police professionalization, race-liberals did not confront either the evil of white-mob-violence or the idea that African-Americans were more prone to crime.  For Murakawa, this fatal concession shaped all subsequent debates of criminal justice policy.

So, for example, in the 1960s and 1970s as the crime debate turned more towards police brutality on the one hand and civil rights activism on the other, black criminality was already understood as an existing condition.  Race-liberals answered these debates, again, with fairer procedural mechanisms and stronger law enforcement, conflating structural fairness with racial fairness.  As a result, our criminal justice system gained objective indicators of fairness, without addressing racial inequities or, much worse, challenging the idea that African-Americans are more prone to crime.

When Murakawa turns to the 1980s to present, her book hits its stride---I think mainly because by then everything is coming together and the strength of her thesis is becoming clearer---as she describes Republican and Democratic tough-on-crime bidding wars.  Starting in the 1980s, as the "crack epidemic" played into pre-existing racial fears and the drug war took off, she describes how Democrats sought to steal the "crime" issue by being tougher on crime than Republicans.  This instigated a bidding war as both parties sought to be the tougher party.  Unsurprisingly, this period oversaw an explosion of mandatory minimums and a huge jump in the incarcerated population.  It was also in this environment that the number of federal capital crimes exploded and Congress passed anti-habeas legislation.

Murakawa's book seems to be in partial response to The New Jim Crow, which attributed much of the blame for mass-incarceration on Republicans/race-conservatives.  In contrast to The New Jim Crow, Murakawa's book focuses on joint-responsibility.  I don't think Murakawa's goal is to point fingers or blame, however.  Rather, the goal of book seems to show what Congress has been doing with criminal justice issues in the last 60 years to show that we have lost any sense of fairness or restraint.  More pointedly, though, the book also seems to imply that adding more procedural due process will not adequately solve what is wrong with the system.

This book is recommended for anyone interested in criminal justice.  It's very much written for an academic audience, though, so be warned: it can, at times, be a difficult read.  It provides a pretty detailed history of federal criminal law developments since World War II, and it describes much of the debates that went with major reforms. For anyone not interested in slogging through an academic work, I would suggest sticking to something meant for a more general audience, like The New Jim Crow or Don't Shoot.

Friday, March 20, 2015

I Regret Everything: A Love Story by Seth Greenland

There is a school of thought that says every character in a dream is another facet of the dreamer. The Minotaur dwelt at the center of a Labyrinth where he was eventually slain by the hero Theseus. Was I Theseus or the Minotaur? And if I was the Minotaur, was I trying to kill some part of me over and over?

The house of regret has many rooms.

The title, I Regret Everything, makes this sound like a much different book. Yes, it is about regret. Jeremy, a successful lawyer whose true love is poetry, lives a life of quiet desperation despite his material wealth. Spaulding, a 19-year-old girl who happens to be Jeremy's boss's daughter, has spent periods in various institutions after attempting suicide in various ways. There are deadly diseases, shattered dreams, and some soul searching. But overall, I Regret Everything is still a pretty light read.

That's not a bad thing--it's the sort of book you can read in bits and pieces that still gives something to think about when you're finished. The writing is good, sometimes very good, and Greenland does a fine job at switching up the voices between the two first-person narrators. Even the plot itself is satisfyingly intricate, not necessarily a given in what is basically a slightly weepy romance, and the ending, in spite of heavy themes and a surprisingly dark twist, doesn't devolve into treacle.

If I sound a little reserved in spite of this praise, it's because I Regret Everything was good but felt like it could have been better in some way. There are points where Spaulding feels like a bit of wish fulfillment--she's sort of crazy but can be saved/she can save Jeremy--and the sometimes dour events sit a little uncomfrtably with some of the book's more humorous moments.

Still, there are small complaints in the big picture. I Regret Everything is funny, sometimes moving, and doesn't commit any awful literary sins during its highwire act. If this sounds like your sort of thing, check it out.

Tuesday, March 17, 2015

Southern Exposure: Modern Japanese Literature from Okinawa edited by Michael Molasky and Steve Rabson

[This entire post is full of spoilers...I figure no one else is going to read this book, though, so it's okay?]

Tokusho turned around and lay Ishimine on the ground . . . . Tokusho took out a piece of dried bread from the paper bag Setsu had given him and placed it in Ishimine's hand.  Tokusho then poured some water from the canteen into his palm and let it drip between the rows of white teeth that shone though Ishimine's parted lips.  The moment Tokusho saw the water overflow and drip down Ishimine's cheek, he could no longer restrain himself.  He put the canteen to his own mouth and gorged himself.  When he caught his breath, the canteen was empty.  The droplets of water spread through his entire body, creating a searing pain as if they were tiny shards of glass.  Tokusho fell to his knees and stared at Ishimine, who lay on the ground where he was slowly absorbed by the shadows and muddy water.  He looked too heavy to carry.  No voices could be heard in the shelter.  Tokusho set down the empty canteen next to Ishimine.  "Forgive me," he said.

--Droplets by Medoruma Shun

Droplets, my favorite story in this collection, starts with a Kafkaesque premise: Ushi, Tokusho's wife, wakes one morning to find that Tokusho's leg has transformed into a giant gourd.  This gourd, in turn, is dripping a water-like liquid.  Tokusho is as though paralyzed, he doesn't move, cannot speak, and is unresponsive to Ushi.  Tokusho's leg becomes a point of interest in the village because no one can figure out what happened to it (Ushi, a poor farmer, refuses to send Tokusho to a hospital because she believes hospitals are where people go to die).

This is an example of the
gourd in question.
While Ushi cares for Tokusho's leg and their farm, Tokusho starts receiving visitor's at night.  They are dead soldiers, with visible (and fatal) wounds, who come to suck on his leg, where the water is coming out.  He starts to recognize some of the people as people who died during the Battle of Okinawa.  This motivates him to start reflecting on painful memories---particularly of his own acts during the battle.

Meanwhile, in the non-mystical world, Tokusho's brother drops in and Ushi agrees to pay him to take care of Tokusho.  Tokusho's brother is something of a drifter and con-man.  He notices that the garden where Ushi poors the leg-water out is lush with growth.  So...he tries to drink some of the leg water.  He is instantly invigorated (and aroused for the first time in years---he's an alcoholic).  He puts some of the liquid onto his bald head and hair immediately starts sprouting.  He decides to start selling the liquid.

Tokusho's reflections take him back to one of the nights during the Battle of Okinawa, quoted above, when he left his friend Ishimine behind.  They and a large number of others were in a make-shift cave hospital as the U.S. bombed the island.  The cave was being evacuated because they expected it to be bombed.  While Ishimine and Tokusho are out gathering water and helping to move wounded soldiers, shrapnel from a bomb cuts open Ishimine's stomach and his intestines fall out.  Tokusho immediately bandages them and carries Ishimine inside.  At this point, most of the hospital has been evacuated and it's just the two of them.  A mutual friend tells them to hurry up and leaves Tokusho with bread and a canteen...for both of them.  Tokusho has a choice.  He can share the water and bread and then try to carry Ishimine to the new hospital.  Or he can leave Ishimine behind.

He chooses the latter.

In the years the follow, he becomes a popular speaker about the war and people consider him a hero.  Of course, he feels otherwise.

More happens, but I'll leave the ending for the people who feel motivated to read the story.

I'm not quite sure what the gourd-leg is supposed to symbolize.  Regardless of what it is supposed to symbolize, it forces Tokusho to confront the reality of his past and his actions during the war. Tokusho abandoned Ishimine, and now feels guilt both for that action and for the accolades he received after.  In the same way he has fed off his experiences during the war, the soldiers he failed to help now feed off him.

This was, by quite a bit, the best story in the collection.  With that said, the other stories (and poems) in the collection were quite good too.  I would recommend this book to anyone...but I acknowledge that, for most people, there's no reason to be interested in the Modern Literature of a Minority in Another Country (which is to say...this is a very specific category...).  The stories confront a number of different issues: life after war, being a minority, cultural identity while being "colonized," cultural identity after being "reverted" to the country that controlled you before you were colonized...which is itself a country that more or less took you over.

Sunday, March 15, 2015

Delta Wedding by Eudora Welty

The window invited her to see--her window.  She got out of bed (her filmy dress like a sleeping moth clung to the chair) and the whole leafy structure of the outside seemed agitated and rustled, the shadows darted like birds.  The gigantic sky radiant as water ran over the earth and around it.  The old moon in the west and the planets of morning streamed their light.  She wondered if she would ever know... the constellations... the birds all slept.  (The mourning dove that cried the latest must sleep the deepest of all.)  What could she know now?  But she could see a single leaf on a willow tree as far as the bayou's edge, such clarity as there was in everything.  The cotton like the rolling breath of sleep overflowed the fields.  Out into it, if she were married, she would walk now--her bare foot touch at the night's hour, firmly too, a woman's serious foot.  She would walk on the clear night--angels, though, did that--tread it with love not this lonely, never this lonely, for under her foot would offer the roof, the chimney, the window of her husband, the solid house.  Draw me in, she whispered, draw me in--open the window like my window, I am still only looking in where it is dark.

Delta Wedding opens with a train called the Yellow Dog moving slowly through the Mississippi countryside, traveling from the city of Jackson through rolling green hills into the flat, wide cotton fields of the region called the Delta.  On the train is young Laura McRaven, whose mother has just died, going to visit her cousins the Fairchilds, who are busy preparing for their daughter Dabney's wedding.  The Fairchilds are many and wealthy, and their roots go back to the plantation days of the antebellum south--so tightly connected to the Delta are they that the nearest town to their land is actually called Fairchilds.

But Welty also depicts them as generous and kind, though self-possessed, a small universe unto themselves.  She packs the narrative with numerous uncles, aunts, daughters, sons, cousins, as well as black servants and preachers and various hangers-on, most of them Fairchilds, passing from one point of view to another among nearly thirty distinctly drawn characters.  It is difficult, we see, for outsiders, like Laura McRaven, or George Fairchild's wife Robbie, or Troy, the overseer, who is to marry Dabney, to enter into the hermetic Fairchild world.  Like many real tightly-knit families, they share common understandings and a common language that Welty depicts as both beautiful and vital, but also isolating.  Their frenetic banter is intoxicating, and bewildering, and extremely real--Welty does as good a job with "world-building" with this patrician Southern family as any science fiction author.

Laura is particularly enamored of her Uncle George, who is sensitive and taciturn:

Perhaps the heart always was made of different stuff and had a different life from the rest of the body.  She saw Uncle George lying on his arm on a picnic, smiling to hear what someone was telling, with a butterfly going across his gaze, a way to make her imagine all at once that in that moment he erected an entire, complicated house for the butterfly inside his sleepy body.  It was very strange, but she had felt it.  She had then known something he knew all along, it seemed then--that when you felt, touched, heard, looked at things in the world, and found their fragrances, they themselves made a sort of house within you, which filled with life to hold them, filled with knowledge all by itself, and all else, the other ways to know, seemed calculation and tyranny.

I love the subtlety of this moment.  It is easy to forget that Laura is only imagining her uncle's perspective in this moment, and that he, as he remains throughout the novel, is essentially a mystery--we never have access to his perspective in the way we do for Laura, or Dabney, or several of the other uncles and aunts.  But the truth she intuits from watching her uncle is profound, and so enraptured is she by what she imagines he is seeing that she fails to recognize that she is enacting this very "way of knowing," that she has "made a sort of house" in her own heart for George to inhabit.

Welty is rapidly becoming one of my favorite authors.  Her prose is astonishing, and manages to capture the small mysteries and miracles of domestic life like no other author I have ever read.  The depth and complexity of feeling in Delta Wedding is nearly overwhelming; it's no wonder that with a later novel like The Optimist's Daughter, she chose to narrow the focus to something still profound but, in a way, more manageable.  Delta Wedding was Welty's first novel, and while it seems to lack some of the humor that she developed in The Optimist's Daughter and The Ponder Heart, the strength of its voice is the work of a mature author.  I'm going to Mississippi for the first time in a couple weeks, and I'm excited to bring another of her books with me.

Saturday, March 14, 2015

Uncle Silas by Sheridan Le Fanu

'I don't understand metaphysics, my dear, nor witchcraft.  I sometimes believe in the supernatural, and sometimes I don't.  Silas Ruthyn is himself alone, and I can't define him, because I don't understand him.  Perhaps other souls than human are sometimes born into the world, and clothed in flesh.  It is not only about that dreadful occurrence, but nearly always throughout his life; early and late he has puzzled me.  I have tried in vain to understand him.  But at one time of his life I am sure he was awfully wicked--eccentric indeed in his wickedness--gay, frivolous, secret, and dangerous.  At one time I think he could have made poor Austin do almost anything; but his influence vanished with his marriage, never to return again.  No; I don't understand him.  He always bewildered me, like a shifting face, sometimes smiling, but always sinister, in an unpleasant dream.'

The title character of Sheridan Le Fanu's Uncle Silas doesn't appear in the novel for more than 200 pages, but he's always a presence, casting a shadow.  The protagonist, plucky young Maud Ruthyn, obsesses over his portrait--she's never met her uncle--and imagines him as mysterious and debonair.  Silas' brother, Austin, confesses to his daughter Maud that Silas was once rumored to have killed a man to whom he owed money: the man was found dead in a room that locked from the inside, but suspicions against Silas have turned him into a sickly recluse.  When Austin dies in the middle of the novel, his will stipulates that Maud will live under Silas' care, hoping that Silas' kindness toward Maud will soften his public image (ignoring, for some reason, the fact that Silas ignores his own two children so severely that they've grown up with the cockney accents of their servants.)

What Austin fails to realize in his will is that Silas stands to inherit all of the family's fortune if only he can get rid of Maud somehow, and putting her in Silas' hands might be too much of a temptation for his possibly murderous brother to withstand.  The question of Silas' true nature hangs over the second half of the novel--is Maud in danger, or not?  (Is Uncle Silas a bait-and-switch horror book, like Northanger Abbey or Scooby Doo?  Or is something real at stake?)

Uncle Silas is the kind of book that builds its suspense on bumps in the night and sinister conversations half overheard.  It's the kind of book in which adults only ever partially explain things to Maud, saying things like "I will tell you more in due time, Maud," but without any good reason beyond keeping the reader guessing.  But it's awfully good at that, and manages to be quite a page-turner despite being artificial and silly in the way a lot of Gothic fiction tends to be.  Among the book's better creeps is Maud's malevolent governess Madame de la Rougierre, a shriveled old crone in a wig who speaks with a comically bad French accent and whose subtle malignity toward Maud is never fully explained.  Uncle Silas has a lot of reverence for the British manor system which provides Austin's riches, and has no reserve when it comes to associating Madame's foreignness with evil.

But probably the best thing about the book is Maud, who is both headstrong and regular-strong, and provides a compelling voice unlike the kind of damsel-in-distress that you might find in Radcliffe.  Those looking for well-developed heroines in spooky stories would do a lot better to read Uncle Silas than your Twilights and your Hunger Games and whatnot.

Wednesday, March 4, 2015

Vampires in the Lemon Grove by Karen Russell





Regret is a pilgrimage back to the place where I was free to choose. 










I really want to like Karen Russell's work, and it is even a little difficult for me to figure out why exactly it is that I don't, but I don't. After a very disappointing experience with Swamplandia!, I was still committed to reading at least one of her short story collections. One of my feelings about Swamplandia! was that maybe Russell wasn't yet ready to take on a novel, and her writing was lovely, so with those two things in mind her short stories could be absolutely perfect for me. Unfortunately, no. 

I am in the absolute minority (I read review after review after review to try to figure out why, for once, I am at odds with the literary world), so I can't say that I would un-recommend them based on my own experiences, but these stories are just not for me. I like dark and twisty (see Gone Girl, Dark Places, Sharp Objects), I like magical realism (see The Color Master, Wind Up Bird Chronicle, 100 Years of Solitude), and I like clever (see every other literary darling), but...the way she puts it together doesn't work. 

I categorized my Aimee Bender short story collection into: Heartbreakingly Good, Incredibly Good, and Just Good. For Russell I will do: Good, Meh, Why? 

  • Good
Vampires in the Lemon Grove
Reeling for the Empire
The Graveless Doll of Eric Mutis
  • Meh
The Seagull Army Descends on Strong Beach, 1979
Proving Up
The New Veterans
  • Why?

The Barn at the End of Our Term
Dougbert Shakleton's Rules for Antarctic Tailgating

The Goods have solid writing and ideas and their strength is taking extra-ordinary situations and giving the characters in these completely human moments that are absolutely ordinary. 

The Vampires in the Lemon Grove are having marriage problems and their relationship issues manifest in a conversation that is superficially about one thing but actually about another. 
"The lemons aren't working, Clyde." But the lemons have never worked. At best, they give us eight hours of peace. We aren't talking about the lemons. "

The Reelers for the empire are girls who have been turned into silkworms whose silk is helping Japan become a silk exporter, but the girls all have to live together in a single room and they are driving each other crazy.
"Courage, sisters!" sings Hoshi. Hoshi is our haiku laureate. She came from a school for young noblewomen and pretends to have read every book in the world. We all agree that she is generally insufferable. 
When the Graveless Doll of Eric Matis appears - looking like a scarecrow - our juvenile delinquent protagonist takes a moment to realize how lame his imagination is.
All day and all night, the scarecrow had to stand over his quilty hills of wheat and flax, of rye and barley and three other brown grains that I could never remember (my picture of scarecrow country was ripped directly from the 7-Grain Quilty Hills Muffins bag - at school I cheated shamelessly, and I guess my imagination must have been a plagiarist, too, copying its homework). 
I did enjoy these three stories, but all three of them share a 'huh' moment when I turned the last page and realized the story was over. It's not that I need a clear resolution where all questions are answered, but endings should not be a surprise. That is what stops these really interesting premises with lovely ideas and prose from being truly excellent. 

The Meh stories are different levels of creepy - maybe some of them even belong rightly in the Horror category, but the premises aren't as interesting and the endings are still unsatisfying. 

The Why? stories are ones that really emphasize my overall problem with the book: 

  • it reads like a collection of writing exercises. 
Writing Exercise: Write a story from the perspective of a non-human character. 
Result: The Barn at the End of Our Term, where former presidents are reincarnated as self-aware horses



Writing Exercise: Take an ordinary event and treat it like a major sporting event. 
Result: Dougbert Shakleton's Rules for Antartic Tailgating, where the super stoked fans for Team Krill are beaten by the super stoked fans of Team Whale every year.

I understand that many people really love Karen Russell, and I do see potential, but I don't think that I will be picking up any more of her books. 

Sunday, March 1, 2015

A Moveable Feast by Ernest Hemingway

If you are lucky enough to have lived in Paris as a young man, then wherever you go for the rest of your life, it stays with you, for Paris is a moveable feast. 

You should only read what is truly good or what is frankly bad. 

All things truly wicked start from an innocence.

I wished I had died before I ever loved anyone but [Hadley]. 








Continuing my Hemingway kick (following The Sun Also Rises and The Paris Wife), as recommended by a fellow 50 booker, I decided to tackle A Moveable Feast. This book is a collection of autobiographical vignettes edited and published posthumously. The book covers the same years as The Paris Wife. Although The Paris Wife is fiction, it has all the same people, places, and events, and is structured as a typical narrative, so reading A Moveable Feast so closely after it was probably a different experience than most readers would have. It felt a little like reading George Plimpton's Capote where the reader receives different perspectives on the same events. I was able to see Hemingway's side of things, and for the record, he knows he's a cad (see above quote about how he felt after cheating on Hadley). 

It was a very quick read - I finished it in about six hours of airplane travel - as there are blank pages between each story and a set of photos. For anyone who is hip with the literature at this time, it's like reading a gossip tabloid. Fitzgerald did what? Stein said that? Oh my! 

I wouldn't recommend it as anyone's first or only foray into Hemingway because it's not representative of what he was trying to accomplish with his writing (although it is of course in his classic style). 

My next Hemingway novel will be A Farewell to Arms and then I think it's time to put Big Poppa to sleep for a while. 

Saturday, February 28, 2015

Mumbo Jumbo by Ishmael Reed

The foolish Wallflower Order hadn't learned a damned thing.  They thought that by fumigating the Place Congo in the 1890s when people were doing the Bamboula the Chacta the Babouille the Counjaille the Juba the Congo and the VooDoo that this would put an end to it.  That it was merely a fad.  But they did not understand that the Jes Grew epidemic was unlike physical plagues.  Actually Jes Grew was an anti-plague.  Some plagues caused the body to waste away; the Jes Grew enlivened the host.  Other plagues were accompanied by bad air (malaria).  Jes Grew victims said that the air was clear as they had ever seen it and that there was the aroma of roses and perfumes which had never before enticed their nostrils.  Some plagues arise from decomposing animals, but Jes Grew is as electric as life and is characterized by ebullience and ecstasy.  Terrible plagues were due to the wrath of God; but Jes Grew is the delight of the gods.

The back of my copy of Mumbo Jumbo cites Harold Bloom as including the novel in his "five hundred most significant books of the Western Canon."  That's hilarious, and certainly wasn't written by Ishmael Reed, who exhibits a pretty jaundiced opinion of the "Western Canon" throughout Mumbo Jumbo.  In fact, one of the most entertaining things about this novel is its gleeful iconoclasm, the way it smashes up the sacred cows of Western art, music, and religion as Eurocentric bullshit:

Outstanding in the collection is the figure of of a monkey-like Portuguese explorer, carved by an Angolan.  He is obviously juiced and is sitting on a barrel.  What side-splitting, bellyaching satriical ways these ancient craftsmen brought to their art!  The African race had quite a sense of humor.  In North America, under Christianity, many of them had been reduced to glumness, depression, surliness, cynicism, malice without artfulness, and their intellectuals, in American, only appreciated heavy, serious works.  ('Tis the cause, Desdemona.)  They'd really fallen in love with tragedy.  Their plays were about bitter, raging members of the "nuclear family," and their counterpart in art was exemplified by the contorted, grimacing, painful social-realist face... For LaBas, anyone who couldn't titter a bit was not Afro but most likely a Christian connoting blood, death, and impaled emaciated Jew in excruciation.

Mumbo Jumbo explores the common idea that the supremacy of Western Art is subconsciously a way of perpetuating racial and cultural superiority by making the subconscious conscious.  Reed imagines a world order literally protected by secret Teutonic orders like the Wallflower Order and the Knights Templar, who work to subvert black culture and protect Eurocentricism.

This world order is threatened by the appearance of the Jes Grew (as in, it "jes grew" out of nowhere), a dance craze that Reed describes alternately as a cultural movement, an infectious plague, and a mystical VooDoo force.  The secret societies work to stamp out the Jes Grew but are opposed by a ragtag group of black Harlemites including the proprietor of the VooDoo Mumbo Jumbo Kathedral, PaPa LaBas and his friends Berbelang and Black Herman, and even, quite hilariously, the secretly part-black president of the United States, Warren Harding.

Reed comes awfully close to suggesting that whites can't be trusted.  All of them in this novel are villainous or treacherous or both, and they have names like Biff Musclewhite and Thor Wintergreen and Hinkle Von Vampton.  Their machinations are fun but fairly incomprehensible--among other things, they try to recruit a "talking android" who will discredit black culture from the inside and search for a secret book which gives the Jes Grew its power, or something.  A military revolution in Haiti is somehow connected.  It's not always quite clear whether Reed recognizes how shaggy and silly the whole plot is, but the book elides the distinction between the silly and the serious.  After all, you wouldn't want to be the kind of reader who couldn't "titter a bit."

Law's Empire by Ronald Dworkin

Law as integrity denies that statements of law are either the backward-looking factual reports of conventionalism or the forward-looking instrumental programs of legal pragmatism.  It insists that legal claims are interpretative judgments and therefore combine backward- and forward-looking elements; they interpret contemporary legal practice seen as an unfolding political narrative.  So law as integrity rejects as unhelpful the ancient question whether judges find or invent law; we understand legal reasoning, it suggests, only be seeing the sense in which they do both an neither.

Law's Empire is Part IV in my multi-part series reading about legal interpretation.  See here, here, and here.  Dworkin also happens to have made a guest appearance in my review of Scalia's book.  Although the order was, more or less, random, I'm glad I read this book after having read the others.  In all important respects, Dworkin is responding to the theories of legal interpretation represented by Posner, Scalia, and Breyer.

So, a quick recap of those folks:  Scalia believes legal interpretation is a matter of finding the definitions of the words of a statute (or the Constitution) based on how those words were understood at the time of passage.  Thus, his analysis is what Dworkin would refer to as backward-looking (Dworkin stays away from the word "originalism" and instead uses the word "conventionalism," I think because he views this as the conventional view of legal interpretation).  In contrast, Breyer views legal interpretation as a kind of pragmatism---that is, judges are problem solvers.  Thus, judges should solve problems taking into account anything relevant to solving the problem before them.  Posner, who is closer to Breyer in that he is a legal pragmatist too, believes that judges should seek the "best" result, defined by what is best for society (and constrained by the extreme importance of precedent and predictability to society).

Why this long review?  Because Dworkin rejects both approaches.  He believes both conventionalism and pragmatism fail to adequately describe what judges do when interpreting a legal text.  He rejects conventionalism as being too narrowly focused (conventionalism cannot explain our equal protection or 8th amendment jurisprudence, for example).  He rejects pragmatism as producing too much discretion in judges (for Dworkin, a pragmatist judge is constrained by nothing).Instead, Dworkin proposes "law as integrity."  Under law as integrity, a judge is to resolve a legal dispute based on what is most consistent with prior interpretations.  This approach frees a judge to appreciate the way legal concepts develop, while also constraining judges by preventing them from departing too far from precedent.  For example, and because gay marriage featured so prominently in my review of Scalia's book:
The lessons of our constitutional history are clear: inclusion strengthens, rather than weakens, our most important institutions.  When we integrated our schools, education improved.  When we opened our juries to women, our democracy became more vital.  When we allowed lesbian and gay soldiers to serve openly in uniform, it enhanced unit cohesion.  when same-sex couples are married, just as when opposite-sex couples are married, they serve as models of loving commitment to all.
Latta v. Otter, (Reinhardt, J., concurring).  According to Dworkin, then, a judge looks not only to the text of a statute or provision but also to the development of a legal principle with an eye toward where that principle is going.

Doesn't he kind of look like
Saul from Breaking Bad?
I would be remiss if I did not mention the analogy Dworkin uses to describe this kind of legal analysis.  He compares legal interpretation to a novel, written one chapter at a time by different people.  Each person must continue the novel based on the chapters written by the authors before him or her.  In the same way we might criticize a person for writing a chapter inconsistent with prior chapters, we can criticize judges for writing an opinion inconsistent with precedent.  However, the analogy also works in a forward-looking way: new chapters must build on the development and progress of prior chapters.  So, too, with the law.

I find Dworkin's solution pretty compelling.  Moreso, even, than Breyer or Posner, although I think both would argue their approaches are more or less the same as his, the only difference being the words used; Breyer and Posner would probably respond to Dworkin's criticisms by saying that consistency is important to their pragmatism, and thus, Dworkin's approach creates no different results.  This may or may not be true.  I believe, though, that Dworkin's explanation of legal interpretation is more enlightening.

Seriously, though, doesn't he?
I'm not sure if there will be a Part V to this series.  When I did my Posner review, Scalia, Breyer, and Dworkin were all on my to-do list for legal interpretation.  In this regard, I've exhausted my list.  Maybe, that's it.  We should announce a Law as Integrity Day, have a parade with Legal Conventionalism and Legal Pragmatism Floats slowly self-destructing and with a giant Integrity balloon.

Probably, though, there'll be a Part V and I just don't know it yet.

Monday, February 9, 2015

The Gate of Angels by Penelope Fitzgerald

At the end of his first year as a Junior Fellow, Fred thought it only right to tell his father that he was no longer a Christian, but in such a way to distress him as little as possible.  All this sounded more like 1857 than 1907.  He had heard family stories, distant echoes or reminiscences of giant battles from what seemed heroic days.  Two of his uncles had quarrelled over Strauss' Leben Jesu and struck each other and one of them had caught his head on the edge of the fender and broken his skull.  The other one, Uncle Philip, had been known for the rest of his life, though never in the family, as Slayer Family.  In his mother's family there were some who hadn't spoken to each other for many years, and there were women, once young, who had broken off their engagements because their betrothed had ceased to believe and who had bleached and withered into spectres of themselves behind church missionary society typewriters and the stalls of jumble sales.  Fred, who was kind-hearted toward the past as well as the present, felt that he ought not fall short, in the new century, of what had cost so dear.

The Gate of Angels is Fitzgerald's stab at a university comedy along the lines of Lucky JimThose novels feel British in a peculiar way, because college in the United States is so vastly different, with its own kind of pretensions and strange ritualisms, but without the musty weight of tradition and chauvinism that these novels tend to poke fun at.  The scattered jokes about the different colleges at Cambridge are lost on this American reader, though I suppose that the most important thing about St. Angelicus--a school Fitzgerald has made up--is that it is tiny.  The protagonist of the novel, Fred Fairly, is employed at the college as a lecturer, "assistant organist, assistant librarian, deputy steward, and assist deputy treasurer.  The words assistant, deputy, and so forth didn't mean that there was necessarily anyone above him to do the work, only that he must do it without being paid."  It also male-only, and as a condition of his employment, Fred has to agree never to marry.  You may guess for yourself how what kind of conflict that introduces to the novel for Fred.

Fred has decided that he is an atheist, and feels obligated to tell his father, a small-town rector.  His position is teaching science (I think some kind of theoretical physics).  Fitzgerald wrings a lot out of the epistemological overlap between science and faith.  Fred's mentor, Professor Flowerdew, rails against the theoretical study of the atom, a new study in 1907:

'There will be many apparent results, some useful, some spectacular, some, very possibly, unpelasant.  But since the whole basis of the present research is unsound, cracks will appear in the structure one by one.  The physicists will begin by constructing models of the atom, in fat there are some very nice ones in the Cavendish at the moment.  Then they'll find that the models won't do, because they would only work if atoms really existed, so they'll replace them by mathematical terms which can be stretched to fit.  As a result, they'll find that since they're dealing with what they can't observe, they can't measure it, and so we shall hear that all that can be said is that the position is probably this and the energy is probably that.  The energy will be beyond their comprehension, so they'll be driven to the theory that it comes and goes more or less at random.  Now their hypotheses will be at the beginning of collapse and they will have to pull out more and more bright notions to paper over the cracks and to cram into unsightly corners.  There will be elementary particles which are too strange to have anything but curious names, and ant-matter which ought to be there, but isn't.  By the end of the century they will have to admit that the laws they are supposed to have discovered seem to act in a profoundly disorderly way.  What is a disorderly law, Fairly?'

'It sounds like chaos,' said Fred.

I find this a pretty funny riff on scientific thinking.  Fitzgerald, writing in 1990, knows that this is exactly what has happened--the biggest problem in physics today is that our various models of the way things work seem to completely contradict each other.  (Though Flowerdew's reference to "anti-matter" tips the hand of the irony a little too far.)  But that doesn't invalidate the theoretical structures that Flowerdew wants to reject, and Fitzgerald asks us to apply that to other kinds of thinking and knowing, including the kind of religious tradition that Fred abandons.

At the beginning of the novel, Fred gets into a bicycle crash and falls in love with Daisy, who was riding the other book.  Fitzgerald gives Daisy the middle section, which details her career as a nurse.  Like many of Fitzgerald's heroines, Daisy is smart and tough, and lives somewhere near the edge of respectable society.  Is Fred and Daisy's meet-cute meant to suggest a kind of order that arises out of disorder (the bike crash), and even suggests some divine or otherworldly influence?  How about when, at the end of the novel, Daisy--having split from Fred after a formal inquest about the bike crash reveals that she was accompanied by another man--wanders into St. Angelicus, not knowing that Fred works and lies there, only to fortuitously rescue the college's blind old master?  The fellows at the college freak out at the presence of a woman, but Fitzgerald suggests that Daisy is able to puncture this insulated, pretentious, narrow-minded, and hyper-masculine space, and that such puncturing is exactly what it needs.