Archive for the ‘Books’ Category

Book Review: Powerhouse: The Untold Story of Hollywood’s Creative Artists Agency

May 31, 2017 Leave a comment

IMG_20170530_2354373Along with Tom Shales, James Andrew Miller previously published two book-length oral histories of large American entertainment institutions that originated in the 1970s, ascended to the peaks of their respective spheres of influence, and persist as significant players in the entertainment landscape today. The subjects of those two books, ESPN and Saturday Night Live, also retail their content directly to their public audiences. For the third book in this series of sorts, Miller, now on his own, turns his focus to Creative Artists Agency, an entity that matches all of the same characteristics of ESPN and SNL sketched above save one: it is an insider, a talent agency that works (sometimes barely) behind the scenes to conduct the business of the entertainment industry and, thereby, indirectly influence the entertainment we all consume.

Miller’s Powerhouse: The Untold Story of Hollywood’s Creative Artists Agency follows the same structure he and Shales used in the ESPN and SNL books, which generally track a chronological arc and tell their tales through the words of those involved, directly or tangentially, with the subject, with only brief editorial interludes to organize and move the story along. As an example, a page from the ESPN book illustrates the approach:


For whatever reason, or set of reasons, the CAA book does not work as well as the previous Miller-Shales collaborations. Miller promises to reveal the most powerful man in Hollywood, Michael Ovitz, his philosophically balancing counterpart, Ron Meyer, and the revolutionary agency they built together, CAA, that, at its mid-1990s peak, had the entertainment industry in the palm of its hand and made gobs of money for its owners and employees. That is Miller’s headline, and the sub-lede would explain that Ovitz drew power to himself with a combination of a politician’s natural networking skills and near-unbridled ambition; Meyer countered Ovitz’s cold, calculating approach with heart, emotion, and honesty; and CAA succeeded by developing a “packaging” model that allowed them, for example, to sell a cast of actors they represented to a director they also represented to make a movie written by a screenwriter they also represented– at its best, vertical and horizontal integration– such that CAA could be on all sides of a deal it created and even financed.

It may be because I am not a movie buff and do not track celebrity gossip magazines, but I did not take much from this book beyond the basic summary outlined above and in the interviews I heard with Miller prior to reading it. At a minimum, the book needed at least one more editorial pass before publication to correct what I interpreted as organization problems, including quotations appearing multiple times in the book and editorial interludes that introduced topics unaddressed by the subsequent quotations or merely summarized the ensuing quotations and borrowing the subjects’ same descriptive words.

More broadly, the contents did not do a great job of developing the depth of the main characters. Ovitz understandably is the primary focus, but we learn little of his backroom dealings, for example. There are surprisingly few stories about Meyer, the supposed counterweight to Ovitz, and Bill Haber, the other CAA founder who spent a significant number of years with the company, is left twisting in the wind, hanging onto little more than an adjective card that has the word “eccentric” written on it. Also due for more attention, one would have expected, is the late-arriving Sports (capitalized, for some reason) division of the agency, which now appears to be floating the company financially. Finally, Ovitz’s replacement, current CAA president Richard Lovett, has very little to offer about the present state and trajectory of the company beyond reliably optimistic soundbites.

Again, I likely am not in the target audience for this book, and I would not be surprised if those closer to Hollywood and with a longer-running experience in or familiarity with the entertainment business enjoyed and learned from it. It is possible that Miller did not probe his subjects forcefully enough; independently, it is possible that the subjects simply refused to speak more openly (Sylvester Stallone, whose comments appear throughout the book, apparently had few such qualms). At a minimum, however, the book would benefit from a greater attention to organizational detail. It just came out in an updated paperback edition, though, so that may address some of these concerns.

Categories: Books, Corporations

Book Review: Based on a True Story: A Memoir

December 31, 2016 Leave a comment

img_20161231_0908568I have long been a fan of comedian Norm Macdonald, but it was not until a few years ago that I knew he could write. A product of the Canadian education system, he was literate, of course, but his public persona suggested to me that he might not have much use for or facility with the written word. Norm disabused me of that false notion nearly four years ago, however, when his first article appeared on Bill Simmons’ late website, Grantland. Macdonald’s tenure with that site was, by funded internet website standards, brief, consisting roughly of the first four weeks of 2013. In that time, he wrote six articles: two on golf, one on hockey, and three volumes in an aborted series entitled “Norm Macdonald’s Keeping Resolutions.” My favorite of the lot was the hockey article. When it was published, right after the latest NHL lockout ended, I wrote:

Norm Macdonald’s latest article is a short story in two parts– two short stories, really– with some light humor, of course, but more compellingly, real, emotional, suspenseful, rising action conveyed in absolutely compelling fashion with two lovely turns of phrase, one for each part.

The “Resolutions” series was a first-person, semi-autobiographical story about sports gambling and a trip through the Nevada desert with Norm’s real-life friend, Adam Eget, “sober now for over a year but nonetheless still somewhat interesting.”

Constituting the largest body of his published writing until now, Macdonald’s Grantland articles, presented with little fanfare at the time and seemingly little remembered now, provide more than a little foreshadowing (and, for the author, source material) for some of the subjects and devices in his 2016 comedic novel, Based on a True Story: A Memoir. Anyone who read Norm’s 2013 articles had no reason to be surprised that he could and would produce such an excellent and wide-ranging piece of literature.

A note on genre classification: Based on a True Story is identified, right there on the cover, as “A Memoir.” Anyone who reads it will recognize it not as a memoir but as a comedic novel written very loosely in the style of a memoir. Most book sellers these days do not read the books they sell before displaying them in their stores, meaning that Macdonald’s book typically appears in the nonfiction section. This misclassification, flowing from a fundamental misunderstanding of the book, seemed to genuinely upset the author, who made it a central subject of his comments in media appearances in support of the book’s release and in his own online comments.

Surprise is an element of comedy, but there is plenty of new ground in Based on a True Story, such that it will truly entertain even the biggest Norm fans. I think it always has been difficult, and, I suspect this is true in today’s media age more than ever, to write a book that will make its readers feel real emotion. Sadness. Laughter especially. Yet Macdonald, with this book, concocts emotional moments alongside real, laugh-out-loud moments, woven through metacontent, 1970s country music, and a sports-gambling-driven journey through the Nevada desert with Adam Eget. This is one of the very few books I ever have wanted to read a second time.

In the foreword, Louis C.K. writes that “a lot of comics over the years have been compared to Mark Twain, but I think Norm is the only one who actually matches the guy in terms of his voice and ability.” With Based on a True Story, Macdonald has provided the comedic novel for a generation.

Categories: Books, Sports

Book Review: Deal

May 27, 2015 Leave a comment

IMG_20150527_072144While the Grateful Dead last appeared on stage twenty years ago this summer, capping a thirty-year run that began in 1965, they remain popular and influential today. That remaining band members continue to perform and, to a lesser extent, record music certainly helps them remain relevant, as does their reverently cited influence by many other performers and music fans and their iconic merchandising. They are one of only five groups or individuals– along with Elvis, Bruce Springsteen, Neil Diamond, and Pearl Jam– to have a dedicated satellite radio channel.  All of the living core members– Mickey Hart, Bill Kreutzmann, Phil Lesh, and Bob Weir– will, along with part-time member Bruce Hornsby and other subsequently affiliated and related friends, acknowledge their fiftieth anniversary by reuniting this summer for three performances at Soldier Field, the site of the band’s final concert.

Based on the sheer volume of the band’s output and the size of its audience across a three-decade lifespan, the Grateful Dead certainly is among the most important musical outfits of the twentieth century. Without a conscious effort to do so (and without any real hit songs), but instead through the sheer force that accords and abides massive bodies, they permeated the broader culture, whether as a talisman of psychedelia or through their members’ appearances in educational videos screened in public middle schools, which was the vehicle for my first direct encounter with a Dead band member, drummer Hart, who was talking about the importance of caring for and preserving musical recordings and archives (I think).

Beyond Hart, I certainly was aware of Jerry Garcia at that time, having inherited from my father some of Garcia’s neckties, which confirmed that he (Garcia) had recently died by reading a tag attached to one of them. Later, Lesh and Weir came into view as I discovered record albums in the basement– first Dead Set and later Europe ’72— with centerfolds, sleeves, and inserts covered in photographs. The two-drummer lineup caught my eye, but it would be a while longer before I really got a read on Kreutzmann, perhaps because I already knew about his percussive counterpart Hart, perhaps because Kreutzmann’s appearance allowed him to fade into the background behind his more dynamically featured bandmates, and perhaps because I simply did not know much about drumming.

I eventually gained an appreciation for Kreutzmann’s playing when I heard him backing Garcia on Garcia’s 1972 solo album. The first track, “Deal,” has remained one of my favorite entries in the Garcia/Dead songbook largely because of Kreutzmann’s playing. (See, e.g., this stripped-down session outtake.) No one ever will confuse Kreutzmann for power drummers like Keith Moon or John Bonham or more dynamic drummers like Mitch Mitchell or Jon Fishman, but I enjoyed his ability to create complimentary feels that contributed to the grit and depth of the songs.

In light of the breadth and depth of interest in the Dead, it makes sense that people would want a fly-on-the-wall perspective of the band’s inner happenings in backstage dressing rooms, recording studios, tour buses, and hotels. A fly in that environment would be subject to the sounds, sights, and smells– or, say, vapors– of the psychedelic juggernaut. The fly would become intoxicated, is the suggestion, and while it might have fun as an immediate result, it might not be the best reporter of what it observed from its on-the-wall vantage point after the fact.

Of course, musical autobiographies come in various styles. Some, like Bob Dylan’s Chronicles, Volume I, trade precision, accuracy, and transparency for feeling, atmosphere, and emotion. Others, like Keith Richards’ Life, offer detailed clarity and genuine reflection seemingly in spite of hard living throughout most of the relevant periods.

I found myself revisiting my thoughts on and memories of Richards’ book as I finished reading Kreutzmann’s autobiography, which was published earlier this month. The drummer, it seems, combined the lifestyle of Richards with the shrouded delivery and reserved personality of Dylan. Kreutzmann is our fly on the wall, and the wall was papered with blotter paper.


The Rhythm Devils

In at least one respect, Kreutzmann is not shy: he likes acid and marijuana, and he combined plenty of both with intense periods of cocaine, alcohol, and heroin use during the life of the Dead. He generally demarcates the period from 1965-1995 by band album or tour; wife or girlfriend; residence occupied; and predominant narcotic of use or abuse. On the surface, Kreutzmann is not unlike anyone else in this regard– most people are likely to organize their memories and events in some way according to their professional, personal, and geographic relationships. The trouble for Kreutzmann, and for his book, though, is that his drug use either wiped out his memories of happenings in his life or rendered him unable to form them by participating in the moment. While coauthor Benjy Eisen promises to deliver something other than a mere band retrospective (“Lots of people can tell you about the Grateful Dead, and all of them will allow that there are many sides to that tale. This is Bill Kreutzmann’s side. This is Bill Kreutzmann’s story.”), the final product reads like a loose history of the Dead as told by someone who was there and not there. Bill Kreutzmann & Benjy Eisen, Deal: My Three Decades of Drumming, Dreams, and Drugs with the Grateful Dead 4 (St. Martin’s Press 2015).

While Kreutzmann– who has lead a variety of bands since the demise of the Grateful Dead and has both criticized and performed with his former bandmates during the last twenty years– has his wits about him today, he admits both that he does not remember a number of events significant enough to bear mention in a book like this or withdrew from them at the time due to some combination of drug use and what appears to be a generally reserved personality. While Eisen fills in the historical blanks with facts and statistics, readers are here for Kreutzmann’s observations and opinions. Too often, unfortunately, the inside scoop dips shallow.

The book does check some basic boxes. We learn which short-lived associates Kreutzmann considers true members of the band (yes for Hornsby, no for Vince Welnick and Tom Constanten); that he was mad when Hart made his initial return to the band after a personal leave of absence following Hart’s father’s theft from the band in his capacity as manager; which songwriting duo he preferred (Garcia-Hunter to Weir-Barlow, like most, possibly including Weir and John Perry Barlow); and that he often found better social company with the band’s roadies and staff than with his fellow musicians. Interesting trivia disclosed, though not here for the first time, includes that Kreutzmann’s grandfather was Clark Shaughnessy, who successfully coached various football teams at the collegiate and professional levels during a five-decade career, and that the Dead’s most commercially successful album, In the Dark, derived its title from a recording session conducted with the lights off in order to facilitate musical collaboration. One episode Kreutzmann did delve into at some length was the band’s 1978 performance in front of the Great Pyramids in Egypt, a visit that included Bedouins observing the concert happenings from afar and a midnight horse ride to a mysterious desert drum site.

What is missing, however, is any palatable expression of emotion with respect to Kreutzmann’s relationships with the people in his life. I have no reason to doubt that Kreutzmann loves his family members and friends, but that love largely does not translate to the pages of his book. His wives, partners, and children, like his bandmates and friends, appear as sometimes indiscriminate placeholders, simple trail markers along the book’s historical path, which is occasionally littered with throwaway quotations of song lyrics and the non-contextual talking points of a social liberal (e.g., marijuana good, genetically modified food bad).

Dead in Egypt

Dead in Egypt

Whether that is a reflection of a shy personality, Eisen’s failure to draw him out, or memories forgotten or never made, is impossible to say. But when he says a death saddened him (“darn it,” he almost always writes), the reader sometimes feels moved to ask, “really?”, not out of any doubt that the emotion is or was real, but because the expressed development of the relationship that naturally would precede a sensation and expression of sadness upon death is missing. Authors can tell or they can show, and, many times, there seems to be too little of the latter in this book. (On the other hand, perhaps I should have better appreciated these simple expressions of feelings, as other reviewers have, particularly in the case of Garcia, as telling contrasts to the bands well-noted excesses.)

Deal was an easy and enjoyable read. Although I have been listening to the Grateful Dead’s music, watching their movies an video footage, and reading magazine and internet articles about them for years, this was the first full-length book I have read by or about them. That it left me wanting more, in a sense, probably puts me in good company with the still-insatiable legion of Dead fans from Golden Gate Park to Giza.

Categories: Books, Music

Book Review: Infinite Jest

October 31, 2014 Leave a comment

IMG-20141029-00182.jpgIf there is one point of agreement among all reviewers of David Foster Wallace’s preeminent novel, Infinite Jest, it is that the book is long. Indeed, the book is over one thousand pages in length, inclusive of nearly four hundred endnotes, some of which run multiple pages, and some of which themselves have endnotes.

For such a lengthy work, it is at least somewhat surprising that what would appear from the title and a not-insignificant portion of the plot development to be the central conceit of the book is revealed within the first hundred pages to be a technologically updated Monty Python sketch.

Fiction not being my recent specialty, and a below-the-surface understanding of Infinite Jest being beyond the grasp of my present faculties, I have only a few observations to offer.

The first thing I noticed about this book is that, unlike most fiction writers, who tend to provide only those background, environmental, atmospherical, and ancillary details necessary to explain, understand, contextualize, and advance the plot, Wallace presents an extreme depth of detail at times seemingly irrespective of whether it contributes to the advancement of a plot line or the development of a character. While I suspect the number of people who have both read this book and taken a bar examination is small, those individuals will be able to appreciate the analogy I could not avoid between this aspect of the book and the Multistate Performance Test (“MPT”), which now is a component of the bar exam in a majority of United States jurisdictions. MPT examinees are asked to write concise answers to legal questions and are provided a “library” of legal authority and wide-ranging factual information upon which to draw in formulating their answers. There is a clear line to cut through this voluminous information, which varies widely in its relevance to the precise question presented, to reach an answer. Most novelists seem to make like the successful MPT examinee, who discards information at best remotely relevant and addresses the question (or advances the plot) with pinpoint accuracy. Wallace, on the other hand, would work every piece of information provided, apparently relevant or not, into his answer, and then supplement it with even more details.

Second, I cannot remember being more actively conscious that I was reading a literary work, as such, than I was with this novel. The story frequently is absorbing, and the vast world offered is deep and inviting. Still, I periodically found myself considering, as a primary matter, the purpose and efficacy of various aspects of the content and its organization as literary tools, building blocks of a novel. That inartfully described experience may have arisen as a result of my preexisting awareness of the book’s general reputation as a masterwork, but Infinite Jest seemed to me different enough from other works of fiction I have read to make me pay attention both to the characters and stories in the usual absorptive way and to the book itself as a literary work or vehicle for the delivery of a concept of some sort or sorts. Towards the end, Wallace suggests a disagreement between two central characters, brothers and sons of a filmmaker, over their father’s preference for using nonprofessional actors in his films. The idea was that “the stilted, wooden quality of nonprofessionals helped to strip away the pernicious illusion of realism and to remind the audience that they were in reality watching actors acting and not people behaving. . . . [T]he real truth was that [the father] hadn’t wanted skilled or believable acting to get in the way of the abstract ideas and technical innovations in the [films].” David Foster Wallace, Infinite Jest 944 (Back Bay Books, Nov. 2006) (1996). I wonder whether Wallace felt the same way; in other words, that the purpose of Infinite Jest was to demonstrate the qualities of the novel as art form and Wallace’s abilities as a novel artist. On some level, of course, all novelists see themselves as creating art. Here, though, there seems to be something more deliberate and more total, novel-craft as art versus storytelling as art.

Third, one of Wallace’s most effective techniques is his use of timing, often to delay revealing information, either in the context of a single scene or over the course of the entire book, until it can be introduced with maximum effect. While this approach makes much of the book feel as though it is unfolding slowly and magnanimously, Wallace also demonstrates the ability to rapidly create rising action. Both applications of his use of timing leave the reader equally emotionally drained.

Infinite Jest is about tennis, television, drugs, dependencies, politics, and poltergeists. First published in 1996, it is a prediction of, and therefore a commentary upon, today’s world. Beyond that, I am not very certain of what I just read. It may simply be about the search for meaning, which, for me, continues.

Categories: Books

Book Review: Detroit: An American Autopsy

July 23, 2013 3 comments

detroit: an american autopsyIf I had been spending less of my recent news-reading time on sports, I might’ve known the name of Charlie LeDuff, a newspaper journalist who won a Pulizer Prize as a staff writer with the New York Times and authored two other books before he decided to return to his native Detroit and take a job as a reporter for the Detroit News.

LeDuff’s latest book, Detroit: An American Autopsy, is a first-person tale that begins with his return to his home town and his start with the News. His core thesis is that the story of Detroit, with its glorious rise and massive collapse, is the story of America. Detroit’s rise may have been more glorious than many cities, and its collapse more massive than all of them, but it was a leader of a national trend on the way up, and, LeDuff believes, it’s a coal-mine canary for the rest of us on the way down.

While LeDuff’s basic premise is a rejection of Detroit exceptionalism, it is difficult to ignore how exceptionally bad conditions are in the Motor City.

Once the nation’s richest city, Detroit is now its poorest. It is the country’s illiteracy and dropout capital, where children must leave their books at school and bring toilet paper from home. It is the unemployment capital, where half the adult population does not work at a consistent job. There are firemen with no boots, cops with no cars, teachers with no pencils, city council members with telephones tapped by the FBI, and too many grandmothers with no tears left to give.

A newly hired autoworker will earn $14 an hour. This, adjusted for inflation, is three cents less than what Henry Ford was paying in 1914 when he announced the $5 day. And, of course, Ford isn’t hiring.

Charlie LeDuff, Detroit: An American Autopsy, 5-6 (The Penguin Press 2013). “Murder capital, arson capital, poverty capital, unemployment capital, illiteracy capital, foreclosure capital, segregation capital, mayoral scandal capital . . . .” Id. at 70.

There’s more: “Detroit has the ignominious distinction of being the only American city to have been occupied by the United States army three times.” Id. at 43. It’s also the only American city that has had a population of over one million people (1.9 million in the 1950s) and subsequently contracted to below one million (fewer than 700,000 today). Id. at 45. Today, there are enough vacant lots to hold a city the size of Manhattan and San Francisco combined. Id. at 5. A substantial proportion of Detroit’s buildings are vacant, 62,000 of which are homes. Id. at 53. That the city filed for bankruptcy protection last week is the least surprising data point of all.

This book is hardly all data and statistics, though. There is a reason LeDuff is an award-winning journalist: he is good at finding stories, and he is good at telling stories. The stories here are public and personal: political corruption, the deaths of family members, severely underfunded public safety departments, underemployed siblings, arson as popular entertainment, marriage problems, a frozen body in an abandoned building, professional problems, death, and ancestry.

LeDuff has the ability to tell deeply personal stories at a fast pace. The book moves along quickly, even as the stench of civic and human death– mixed with the humorous, the heartwarming, and the raw, to be sure– mounts. While I’m becoming convinced that the only worthy use of the word “gonzo” in the journalistic setting is as shorthand for “Hunter S. Thompson,” I also think LeDuff is the best we’ve got in that space anymore, minus the smack-induced imaginations and partisanship (cf. Charles Pierce), and plus some red wine and a bit more focus and organization. Even if LeDuff sounds a little extreme at times, his voice is authentic, and the extremity of the reality he’s sharing certainly warrants some extremity on his part.

(After initially thinking I was unfamiliar with LeDuff, I later realized I knew of him from such events as the first, and only, “I ♥ the D” Golf Invitational, in which he golfs the length of the city, telling the stories he encounters along the way. It makes for good video, which is what LeDuff is doing since leaving the News for a local network news affiliate. Much of his video reportage is available here.)

I want to write that Detroit is a must-read for everyone, but there’s a simpler concluding admonition: ignore this book at your own peril. It’s compelling, informative, and entertaining, and I’m not sure we can ask much more of literature, particularly of the nonfiction variety.

Categories: Books, Current

Review of a Review of a Review: On Barnett and Amar on Amar and “America’s Unwritten Constitution”

September 30, 2012 3 comments

Professor Randy Barnett is a right-libertarian constitutional scholar who unsuccessfully argued Gonzales v. Raich, 545 U.S. 1 (2005) on behalf of medical marijuana users and unsuccessfully argued Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. ___ (2012) on behalf of the healthcare law challengers,  and who has appeared in these pages before. See here; see also here. Akhil Reed Amar is a leading progressive constitutional scholar who recently published an extensive book entitled America’s Unwritten Constitution: The Precedents and Principles We Live By. Earlier this month, Barnett published a review of Amar’s book in the Wall Street Journal. A few days later, Amar responded at length to Barnett’s review.

As illuminated in the review and the review of the review, the difference between these two hinges on what Barnett sees as Amar’s particular conception of the “living Constitution.” Barnett writes:

Now, it makes some sense to call the meaning that is implicit in the text the “unwritten Constitution.” After all, the implicit meaning is conveyed by what the text expressly says. But by including the judicially created implementing rules under this rubric, Mr. Amar suggests this doctrine is in some way the equivalent of the original, written one, and that this law of the judges can equal if not trump the law of the Founders. This is what living constitutionalism has always been about.

Mr. Amar acknowledges the problem. “Those who venture beyond the written Constitution must understand not only where to start, but also when to stop, and why,” he warns. “The unwritten Constitution should never contradict the plain meaning and central purpose . . . of an express and basic element of the written Constitution.” He adds: “The written Constitution deserves judicial fidelity, both because it is law and because, for all its flaws, it has usually been more just than the justices.” For the same reasons, he agrees that judicial precedent should not be allowed to trump or supersede the original meaning of the text. Where courts have gotten it wrong about the meaning of the text, the meaning—not the precedent—should govern. “A prior erroneous Court ruling does not properly amend the Constitution.” No matter how entrenched Jim Crow laws became after the Supreme Court upheld “separate but equal” in Plessy v. Ferguson, it was right to reverse that decision in Brown v. Board of Education.

This is all good and welcome. But Mr. Amar goes on to advocate an exception that is big enough to drive a living constitution through. “An erroneous precedent that improperly deviates from the written Constitution may in some circumstances stand,” he tells us, “if the precedent is later championed not merely by the court, but also by the people.” “When the citizenry has widely and enthusiastically embraced an erroneous precedent,” the courts may “view this precedent as sufficiently ratified by the American people so as to insulate it from judicial overruling.” When this happens, according to Mr. Amar, the erroneous precedent becomes part of America’s unwritten Constitution.

In other words, if what the judiciary is doing is popular enough, the unwritten Constitution promulgated by judges takes precedence over the written one. Despite the concession made to the written Constitution, this is really no more than a variation of living constitutionalism, one taken even further in the parts of the book where Mr. Amar contends that the unwritten Constitution also consists of numerous historical documents—like the Northwest Ordinance and the Gettysburg Address—along with institutional practices of Congress and the White House.

Amar sets out to refute this charge:

You wrongly suggest that this is my view: “If what the judiciary is doing is popular enough, the unwritten Constitution promulgated by judges takes precedence [according to Amar] over the written one.” I actually say something quite different, and far more nuanced: In the domain of unenumerated rights, popularity counts. Here is one key passage: “While a wave of new legislation would not ordinarily suffice to trump a precise and inflexible textual right, we must keep in mind that in this chapter we have been dealing with various rights that have not been specified in this way in the written Constitution. If the original judicial reason for deeming these rights to be full-fledged constitutional entitlements derived from the fact that American lawmakers generally respected these rights in practice, then such rights should lose their constitutional status if the legislative pattern changes dramatically. In this particular pocket of unwritten constitutionalism [my emphasis] what should ideally emerge is a genuine dialogue among judges, legislators, and ordinary citizens.” And here is another passage: “Thus, if the Court at time T1 gets the Constitution’s text and original understanding wrong and proclaims a right that does not in fact properly exist at time T1, and if the vast majority of Americans come to rejoice in this right, the Court at time T2 should affirm the originally erroneous precedent. The case, though wrong when decided, has become right thanks to an intervening change of fact — broad and deep popular endorsement — that the Constitution’s own text, via the Ninth and Fourteenth Amendments, endows with special significance. Note one key asymmetry: A case that construes a textual constitutional right too narrowly is different from one that construes the right too broadly. Even if both cases come to be widely embraced by the citizenry, only the rights-expanding case interacts with the text of the Ninth and Fourteenth Amendments so as to specially immunize it from subsequent reversal.”

Intelligent, thoughtful scholars like Amar and Barnett bring out the best in each other, or close to it, because they are willing to engage with each other and have an exchange that both sharpens the distinctions between the two and draws each to develop and defend his views. In this case, Amar has advanced an intriguing and creative constitutional notion. Barnett challenged it, and Amar’s response further defined the concept.

Perhaps it ultimately is too simplistic, but even high-minded conservative constitutional defenders like Barnett seem to forget a basic, mechanical objection to expansive constitutional approaches like Amar’s: they are undemocratic. Functionally, what the host of progressive, “living Constitution,” dynamic, “unwritten Constitution,” etc. approaches seek is a shortcut to or a circumvention of the constitutionally prescribed amendment process, the dangers of which should be self-evident. There probably is a reason that scholars in Barnett’s position do not rely on this fundamental objection– to which Amar’s vague appeal to the Ninth and Fourteenth Amendments looks like a grasping rejoinder– but it escapes me, especially because there does not seem to be an equally compelling response available to those in Amar’s position. (Note also that Amar’s qualification, that only those extra-Constitutional interpretations that expand rights are authoritative, is irrelevant in the face of a Federalist approach to liberty under the Constitution, in addition to being non-responsive to the fundamental, mechanical objection mentioned in this paragraph.)

Categories: Books, Discourse, Language, Legal

Literally Believable

August 16, 2012 Leave a comment

It has been a long time since I have read fiction. Nonfiction has comprised effectively the entirety of my pleasure reading for years, and spending the past year developing ALDLAND has meant that sports news (i.e., more nonfiction, with the exception of hockey teams’ playoff injury reports) has dominated my online reading as well. Once I set aside Justice Breyer’s book earlier this year, I began to contemplate a return to fiction. I’m not quite ready yet, though, opting first to tackle Michael Sandel’s latest, which I’ve nearly finished. I also have contemplated reading Hampton SidesHellhound on His Trail: The Stalking of Martin Luther King, Jr. and the International Hunt for His Assassin next just as an excuse to remain in nonfiction’s friendly waters.

My inexplicable resistance to fiction nevertheless is slipping, however. Although I had no intention of reading or buying Jay Caspian Kang’s debut novel, The Dead Do Not Improve, I had been hearing about its release for a year, so it was easy enough to decide to take a peek when the Grantland blogger offered the first thirty-five pages of his book for free perusal online. My reactions to the experience of reading the opening of Kang’s novel were not complex or groundbreaking. My first thought was that it felt not so bad to be reading fiction again. My second was that the text seemed awfully autobiographical, and I couldn’t decide whether that irritated me. My third thought was confirmatory of my preconceived notion that there was no need for me to buy or read (now, the entirety of) this book. My fourth thought, upon completing the excerpt, was that maybe I would get the book, as a flippant way to ease back into fiction. I suppose that’s marketing at work, but my idea was that, rather than hold out on fiction not because I didn’t want to be reading it but because I felt I had to reengage in a particular way, and the choice of which fictional work would be my first would be too fraught.

I was not expecting to see any more of Kang’s text anywhere outside of the book’s covers when I came upon his recent Gawker post. Apparently a lot of other people thought The Dead Do Not Improve seemed pretty autobiographical too. For some reason, this (again, apparent) sentiment put Kang on the defensive, so he took to Gawker to try to tamp down the issue by presenting yet another, albeit much shorter, segment (italicized below by me for clarity) of the novel, this time with new annotations included:

To try to shove that top-down question of “how much of your life is in your character” and all of its political implications a bit further out to pasture, I’ve annotated an excerpt from The Dead Do Not Improve to tell you exactly what parts came from my life and what parts did not. My hope is that you will find these details to be about as unimportant as they ultimately are.

The true parts I have tagged IRL. The fictional parts are tagged FICTION.


Those mornings in the parking lot with my three friends, the Ronizm mornings: Seth Bloomberg (IRL: name altered) picked me up at seven-twenty on the dot.

In precal, I sat between Heba Salaama and Paul Offen. Years later, Heba Salaama, better known to the greater student public as Heavy Salami, won a hundred thousand dollars on some network TV weight loss show (IRL), but back before her dreams came true, in those pre-9/11 days when the last name Salaama was simply a curiosity, Heba was the terrifying, ethnically ambiguous girl who sat next to me in math, who kept telling me that I smelled like weed (IRL), who threatened to tell Ms. Butler if I didn’t let her copy last night’s homework (FICTION).

The entire exercise is available here. Upon reading all of it, my immediate reaction is that whether “these details” are “unimportant”– to the reader’s experience of Kang’s novel, presumably– is beside the point.

I chose the two excerpts of the excerpt that I did because they demonstrate a) Kang’s ability to use a particular, basic literary technique, and b) his decision not to employ that technique in a particular instance. Explicitly, Kang’s annotation reveals that he knows how to write about a person he’s met while disguising that person’s identity by using a different name, an elementary and widely accepted technique. There is nothing objectionable about writing about real people in the fiction context; indeed, it seems like it would be difficult to write convincing fiction about human beings without having met and being influenced by one or two. Still, as a matter of common courtesy and because there’s little to be gained by using real names, authors usually use a different name for their character. Like any author, Kang is familiar with this technique, and he demonstrates it with the character he calls “Seth Bloomberg.”

In the second excerpt, however, Kang declines to use this technique and goes out of his way to let us know that he’s chosen not to. “Heba Salaama,” the protagonist’s classmate, is a real person, and her name is Heba Salaama. Kang not only expressly tells us this, but he goes further out of his way to let readers know that Salaama is a real person by linking to a video of her. Within one sentence, Kang makes pointed reference to Salaama’s weight and ethnic background and mixes in a fictional part about academic cheating (recall the actual book does not contain the annotations being discussed here) before moving on to an extended discussion of his actual high school’s “lone autistic kid,” whose real name Kang also uses.

The issue here is not that Kang’s protagonist, named for another of Kang’s actual classmates, dwells on the physical characteristics, ethnic background, or mental capacity of other characters. Writers should be honest in this way, and protagonists, however autobiographical, do not have to be morally good people. Instead, the issue is why Kang felt the need to use the real names of real people like Salaama. Even if it isn’t a requirement for their protagonists, writers ought to be morally good people, and even though morality isn’t necessarily about balancing, two initial questions come to mind: 1) What does Kang gain by using the real names of people like Salaama?, and 2) What do people like Salaama lose when Kang incorporates them into his story, and publicly highlights likely unflattering episodes of their lives? For himself, Kang appears oblivious, which borders on the literally unbelievable.

Categories: Books, Compassion, Discourse

Surely You’re Joking About the Criminal Justice System, Mr. Feynman!

May 31, 2012 Leave a comment

Earlier this year, a friend sent me a copy of Surely You’re Joking Mr. Feynman! (Adventures of a Curious Character), the oral memoir of Nobel Prize-winning physicist Richard P. Feynman. Upon completion, as the title implicitly promises, the reader is left with a strong sense of Feynman’s character: extremely self-confident, but never taking things too terribly seriously. While he credits the latter– a sort of everyman approach to life’s puzzles and adventures– for allowing him to take creative approaches to problem solving in physics and otherwise, it may be something of an outer surface he projects on top of his self-assured and extremely intelligent individuality. He doesn’t not remind me of Randy Pausch, late author of The Last Lecture. Still, Feynman is able to illustrate his developing personality over time, and stories about his time in Los Alamos, Brazil, and Las Vegas are fun and show readers a very well-rounded individual who could do plenty more than model nuclear physics.

Ninety-five percent of the book is Feynman telling stories, but he steps back at the end to offer some broader, more philosophical observations on the world after relating his time attempting to hallucinate with Dr. John C. Lily. Feynman expressed concern that, despite all of the scientific advances of the twentieth century, he was not living in a truly scientific age writ large because people continued to adhere to beliefs and take actions even though these approaches wouldn’t stand up to logical examination. Simply, Feynman wanted to apply the scientific method to everything and ask, for example, what educators were thinking about their new models for teaching reading when literacy and reading test scores were not improving as a result of these new approaches.

Another example is how to treat criminals. We obviously have made no progress– lots of theory, but no progress– in decreasing the amount of crime by the method that we use to handle criminals.

Richard P. Feynman, Surely You’re Joking Mr. Feynman! (Adventures of a Curious Character) 340 (W. W. Norton & Company 1985).

There’s a lot to be said about our criminal justice system and its failures, with particular comment on incarceration rates, racial prejudices, narcotics policy, and the death penalty, among other topics, but the semi-stated assumption in Feynman’s observation, that the goal of the criminal justice system is to reduce crime, seems worth examining in the first instance.

In discussing the theories that guide our criminal justice system, two apparently competing approaches are most prominent. One is the rehabilitative theory, which argues that the purpose of the system is to limit recidivism by teaching convicts how to become functional, productive members of society. The retributive theory, by contrast, is focused on punishment, attempting to balance the scales for the wrong done to the victims of the crime by exacting punishment on the convicted criminal.

Notably, both of these theories look at how we should treat a person following conviction. While Feynman may be making indirect reference to the rehabilitative approach– by processing all criminals through a rehabilitative program we build up the particularly (legally) depraved among us and thereby reduce recidivism and thus decrease crime rates– I read him as criticizing the failure to reduce crime in the first instance, which is the reading that gave me pause. That’s because the “science” of criminal justice does not appear to address reducing crime in the first instance.

There probably are a few reasons for the preference for an ex post approach over an ex ante one. First, there is a fear in criminal justice about the possibility of prosecuting “thought crime” that causes many to put on the brakes when it looks like things are moving toward punishing a person who is contemplating but has not actually begun to physically commit a crime. Second, there’s the possibly more monumental task that would be reforming the conditions of society generally such that fewer people committed fewer crimes, recognizing that there are a variety of individual and societal factors that drive criminal behavior.

Feynman’s criticism, and its incorporated assumption, therefore probably is slightly misguided. His broader point nevertheless is well-taken. For all the resources we expend on the criminal justice system, things don’t seem to be improving. While critics have identified numerous possible points of causation and adverse consequences, meaningful reform does not appear forthcoming.

More recent students of Dr. John C. Lily. (Click photo for sonic evidence.)

Categories: Books, Legal, Music

Remembering to Vote: Memory and Suffrage

February 29, 2012 Leave a comment

Last month, the Supreme Court heard oral arguments in three consolidated cases, Perry v. PerezPerry v. Davis, and Perry v. Perez, all having to do with state and federal elections in Texas. The cases are complicated for a number of reasons, and they even seemed to give the usually confident justices some trouble, as Lyle Denniston’s report on the oral arguments for SCOTUSblog indicates. The situation is complicated in terms of both procedural and substantive law, as there are challenges to Texas’ policies on different grounds in different courts, with a number of different entities all advancing their own remedial proposals, all with a pressing deadline that requires some solution in time for state primaries ahead of this fall’s general election. At the root of these cases, though, are fundamental questions about the Voting Rights Act of 1965, a central piece of the civil rights legislation of the 1960s that already has been facing some fundamental questions in the last few years. In 2006, after much debate, Congress voted to extend the expiring legislation for another twenty-five years, and in 2009, the Supreme Court avoided ruling on the constitutionality of a key provision of the Act while expressing doubts about its ongoing constitutionality. See Northwest Austin Mun. Util. Dist. No. 1 v. Holder, 557 U.S. ___ (2009).

Voting Rights Act litigation usually focuses on one or both of two sections of the Act. Section 2 contains the Act’s general rule against voting discrimination. Section 5, the more controversial of the two, requires certain identified jurisdictions, typically in the South, to seek approval from the Attorney General before making changes to election procedures.

In an excellent and extensive piece that followed the Northwest Austin decision, Joel Heller outlined the Voting Rights Act’s legal landscape and argued that the interpretive tools and sources of authority upon which the Court relies in its Voting Rights Act (“VRA”) cases “present historical, ideological, and statistical perspectives on the question of the continued necessity of § 5, with an especial focus on the South. They tell divergent stories about history, race and  voting.” Joel Heller, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 3 (2011), avalilable here. What’s missing, according to Heller, is “the region’s literature. Yet many of these works, in particular the novels of William Faulkner, address some of the same concerns as the VRA. Specifically, a prominent theme in Faulkner’s work is the power of memory in the South and the ongoing influence of the past on contemporary actions and attitudes.” Id.

As a legal matter, Heller argues that it’s appropriate for courts to consider literature:

Literature can serve as a probative tool for understanding and evaluating policy because it is often, like law, a response to social problems. Especially with a measure like § 5 that touches on such fundamental matters in American society as racial equality and voting rights, Congress and the courts should make every effort and consult every relevant source in order to understand fully the issues at stake. As a chronicler of the pre-VRA South that Congress was responding to when it enacted and reauthorized § 5, Faulkner could prove a valuable resource in this undertaking. Ignoring his examinations of the role of memory in this context risks losing out on the insights of a uniquely astute observer of Southern culture and psychology.

Id. at 4.

The ongoing question in VRA § 5 litigation is whether the prophylactic measure still is needed, and this inquiry requires a court to determine what evil remains present in the governed jurisdictions and whether that evil necessitates the continued application of § 5. Heller continues:

Just as § 5 is a solution uniquely concerned with the past, Faulkner’s novels show that the lingering power of the past is also part of the problem. Rather than punishing the sons for the sins of the fathers, § 5 can be seen as targeting the independent concern of a past-haunted society and the uncertain results which the unchecked power of memory can produce in the present. . . . By focusing on the extent to which “things have changed in the South,” the Court ignored the possibility that, for some, “the past is never dead, it is not even past.”

Id. at 4-5. In short, Heller has identified a theme common to the creation, implementation, and judicial interpretation of § 5 and Faulkner’s novels: “the question of how the past and memories of it continue to shape current attitudes and actions.” Id. at 28.

Heller’s article is thorough and thoughtful, and after thinking about it for four or five months, I still find little to add to it or comment upon. As a matter of mere judicial mechanics, strict jurists may reject the notion that judges should consider much beyond the language of the statutes and rules at issue in the case, but they would completely miss the point of the article. Moreover, where courts in VRA § 5 cases already routinely are considering things beyond the narrow scope of legal authority, judges’ abilities to define the bounds of permissible authority for consideration are diminished. In this vein, Heller has made his case for the necessity of the inclusion and consideration of material like Faulkner’s works, which speak to the very inquiry in which the courts in these cases are engaging in both a historical and thematic manner.

The full text of the article is available for download here.

Michael Sandel’s Untimely Response to the Libertarian Critique

July 11, 2011 4 comments

Last week, I had the fortunate opportunity to hear two presentations by (and briefly meet) Michael Sandel, a leading political theorist and, less magnanimously, a substantial influence on my undergraduate thesis. While a review of his latest book, the New York Times bestselling Justice: What’s the Right Thing to Do?, will have to wait until I finish Justice Breyer’s book, I wanted to make a timely note of the experience of hearing and meeting Sandel.

The morning lecture, thoroughly covered by The Chautauquan Daily, was a traditional presentation in which Sandel familiarized the audience with his approach to public discourse. Sandel carries the mantle of Aristotelian civic republicanism into this late-modern age, arguing that deliberation over the good life, morality, and spirituality, is an appropriate and necessary part of our public discourse. Rather than restraining public debate to a narrow set of political values and leaving things like religion and morality to the private sphere, Sandel believes– contrary to the prevailing view– that people should not have to hold back parts of themselves when participating in public discourse. While I’m not sure he’s gone so far as to say this outright, I think his approach rejects the public-private division contemporary liberal society mandates, instead advocating a broad spectrum of public life in which the public-private deliberative division melts away.

The afternoon lecture, by contrast, was styled after one of his interactive classroom presentations, in which he engaged the audience on questions of policy. Did the handicapped golfer, Casey Martin, have a right to use a cart in PGA events? Should state governments limit marriage to heterosexual couples?

At the end, he took audience questions, the last of which presented a good opportunity to explain his approach. The question came from a self-described libertarian, who told Sandel that he didn’t think the government had any business even answering the questions Sandel posed. The questioner said that the PGA, a private organization, should be able to include or exclude whomever it wants, and the government has no authority to say otherwise. As for state governments, the questioner explained, they should not be regulating activities, such as marriage, between consenting adults.

Sandel used this opportunity to “test” the questioner to see if he really would adhere to a libertarian viewpoint as applied to more controversial facts. For example, would the questioner allow the PGA to restrict its events to white golfers? The questioner said he would boycott the events, but the PGA could do so. Sandel also inquired of the questioner’s acceptance of various extreme activities between consenting adults, but the questioner stood by his position. Apparently satisfied that the questioner was, in fact, a true libertarian, Sandel concluded the presentation without further substantive comment.

This exchange was a missed opportunity for Sandel. Rather than defend his view, or at least helpfully contrast it with the libertarian perspective for the attentive audience, Sandel did little more than put the questioner through the paces of a libertarian litmus test. What’s unfortunate is that he had a good response. In his 1996 book Democracy’s Discontent, Sandel wrote about the Lincoln-Douglas debates of 1858, when the two politicians debated slavery and other issues. Stephen Douglas supported a liberal position: because people disagreed as to the morality of slavery, the federal government ought to maintain a neutral position and allow the states and territories to decide the question for themselves. Abraham Lincoln, on the other hand, took a position in line with Sandel’s civic republican view and in opposition to slavery on moral grounds, observing that anyone can advocate political neutrality “who does not see anything wrong in slavery, but no man can logically say it who does see a wrong in it; because no man can logically say he doesn’t care whether a wrong is voted up or voted down.” Michael Sandel, Democracy’s Discontent 22 (The Belknap Press of Harvard University Press, 1996).

Lincoln’s view is a direct challenge to those like the questioner, who say that while they personally (morally) oppose a particular activity, the best public policy respecting it is one of neutrality. This is the query Sandel should have put before his libertarian questioner.