Relatedness and biography

'Privacy Versus Relatedness: Managing Device Use in Australia’s Remote Aboriginal Communities' by Ellie Rennie, Tyson Yunkaporta, and Indigo Holcombe-James in (2018) 12 International Journal of Communication comments

Aboriginal Australians living in remote communities are likely to be “mobile only” users. The sharing of devices among kin is common and linked to demand sharing practices that stretch back to presettler times. While sharing can produce benefits (acting as a form of insurance), it can also lead to privacy-related problems among this group, including illicit use of banking and social media accounts via shared devices. In this article, we examine the ways in which the aspect of Aboriginal sociality known as relatedness is interacting with online privacy frameworks designed for individual device use and device management. The findings suggest that the sociotechnical frameworks of platforms and devices do not accord with cultural dynamics, including obligations to others. Moreover, efforts by individuals and Elders to avoid privacy-related problems are leading to digital exclusion in various forms, from the deliberate destruction of devices to whole communities opting out of mobile infrastructure.

'Privacy's Double Standards' by Scott Skinner-Thompson in (2018) 93 Washington Law Review comments 

Where the right to privacy exists, it should be available to all people. If not universally available, then particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This, despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections. 

This Article unearths disparate outcomes in public disclosure tort cases, and uses the unequal results as a lens to expand our understanding of how constitutional equality principles might be used to rejuvenate beleaguered privacy tort law. Scholars and the Supreme Court have long recognized that the First Amendment applies to the substance of tort law, under a theory that state action is implicated by private tort lawsuits because judges (state actors) make the substantive rule of decision and enforce the law. Under this theory, the First Amendment has been used to limit the scope of privacy and defamation torts as infringing on the privacy invader’s speech rights. But as this Article argues, if state action applies to tort law, other constitutional provisions should also bear on the substance of common law torts. 

This Article highlights the selective application of constitutional law to tort law. And it uses the unequal effects of prevailing public disclosure tort doctrine to explore whether constitutional equality principles can be used to reform, or nudge, the currently weak protections provided by black letter privacy tort law. By so doing, the Article also foregrounds a doctrinally-sound basis for a broader discussion of how constitutional liberty, due process, and equality norms might influence tort law across a variety of substantive contexts.

'Judicial Biography in Australia: Current Obstacles and Opportunities' by Tanya Josev in   (2017) 40(2) University of New South Wales Law Journal 842 comments

Judicial biography – or the scarcity of it – is a matter of ongoing complaint in legal and academic circles in Australia. Judicial biography has been variously described as ‘an undeveloped branch of scholarship in Australia’, ‘as rare as hen’s teeth’, ‘small and undistinguished’, having ‘received little academic attention’, subsisting within the ‘wider malaise ... afflict[ing] the study of Australian legal history’, and, rather damningly, as an area of scholarship in ‘parlous condition.’ Supreme Court judges, or judges of the colonial era, seem to have fared somewhat better than their High Court and Federal Court counterparts in having their intellectual portraits sketched by biographers, but this is not to suggest that there is burgeoning scholarship in the area in any sense. 

Consider the production of biographies of High Court judges. Of the 53 justices of the High Court, only 15 have been the subject of an extended biography (or multiple biographies): there are book-length treatments of the lives of Justices Griffith, Barton, Issacs, Higgins, Evatt, Dixon, Barwick, Murphy, Gibbs, Stephen, Wilson, Deane, Gaudron, Kirby, and Gleeson. Of these Justices, 10 had public careers outside of their life in the law: Griffith, Barton, Higgins, Evatt, Barwick and Murphy served as politicians; Isaacs served as a politician, and later, as Governor-General; Stephen and Deane also served as Governor-General; and Dixon took leave from the Court on several occasions to undertake diplomatic duties overseas. Others took on roles as champions of particular social causes within the law, either prior to judicial appointment, or in retirement. Biographers of these justices, therefore, have often dedicated a greater portion of their study to their subject’s activities off the bench, rather than on it. Biographies of those judges who embarked on a career at the bar, and moved directly to a long period of service on the bench, are in short supply. The judicial life, it seems, is not a popular subject of extended biographical treatment. 

Why might this be so? In recent years, the (few) biographies produced of eminent Australian jurists have been received with enthusiasm, both within and outside the legal arena – no argument could be made for a total lack of interest in the genre. Admittedly, judicial biographies are unlikely to be commissioned as mass-market or popular biographies, as Stuart Macintyre describes them; these biographies are written for a general readership, and usually take widely known historical figures, celebrities, or even contemporary politicians as their subject. These are marketed seasonally as holiday-reads or gifts, and are notable for their straightforward narrative (‘full of anecdote, lightly referenced’) and handsome production. Judicial biography more likely fits within the separate genre of scholarly biography: the biographer usually has expertise in their subject’s field, is likely to be writing to a specific audience, and is expected to produce a rigorous critical analysis of their subject’s intellectual influences and output – in addition to providing an account of their public life. The expectations of this type of biography are perhaps much higher than that of popular biography. The likelihood of judicial biographies being marketed as ideal gifts for all manner of festive occasions, of course, is low. But this is not to say that judicial biography ought have a narrow readership – David Marr’s Barwick and A J Brown’s biography of Justice Kirby are prominent examples of judicial biographies that received accolades and attention in the wider literary sphere, and point to the potential for further penetrating work in the area that informs the public’s conception of the judicial function. 

In these circumstances, why are book-length treatments of the lives of Australian judges so rare? Are there particular obstacles to producing judicial biography here, and, if so, how might these be overcome? These are the central enquiries examined in this article. I seek to examine briefly some of the difficulties in accessing the judicial ‘archive’ in Australia, and to provide some tentative suggestions as to how biographers might be encouraged to take on judges as their subjects in the future. If a case needs to be made for the production of judicial biography before proceeding further, however, let it be this, in the words of James Thomson:

does [the] nurturing of ... [judicial] biographical scholarship matter? Yes – if beneath the rhetoric of judicial neutrality and autonomy lurk personal values and preferences. ... [and] revelation of previously undisclosed information concerning important cases might enhance understanding of judges’ decision-making processes.

A perceptive judicial biography, then, might disclose to the reader the extent to which contemporary legal principles have been shaped by an individual judge. Such a biography might shed light on how the judge’s education, relationships, life experience, and career in the law ultimately shaped the judge’s own perception of the judicial role. But there is a greater case to be made than this. It is the case for the writing of legal history itself. Just as Australian political and literary biography is appreciated for its role in preserving and providing an interpretation of the lives of prominent Australians who have shaped our social and cultural fabric, so should judicial biography be regarded. The individual forces that have developed the law of Australia should also be recorded, revealed, examined: judges also shape, albeit indirectly, the social and political fabric of the nation.

Steely resolve in IP Reform?

The Productivity Commission's report on Intellectual Property Arrangements features the following unsurprising points 'key points' -

• Australia’s intellectual property (IP) arrangements fall short in many ways and improvement is needed across the spectrum of IP rights. 

• IP arrangements need to ensure that creators and inventors are rewarded for their efforts, but in doing so they must:

− foster creative endeavour and investment in IP that would not otherwise occur 

− only provide the incentive needed to induce that additional investment or endeavour 

− resist impeding follow–on innovation, competition and access to goods and services. 

• Australia’s patent system grants exclusivity too readily, allowing a proliferation of low quality patents, frustrating follow–on innovators and stymieing competition.

− To raise patent quality, the Australian Government should increase the degree of invention required to receive a patent, abolish the failed innovation patent, reconfigure costly extensions of term for pharmaceutical patents, and better structure patent fees. 

• Copyright is broader in scope and longer in duration than needed 

— innovative firms, universities and schools, and consumers bear the cost. 

− Introducing a system of user rights, including the (well-established) principles–based fair use exception, would go some way to redress this imbalance. 

• Timely and cost effective access to copyright content is the best way to reduce infringement. The Australian Government should make it easier for users to access legitimate content by:

− clarifying the law on geoblocking  

− repealing parallel import restrictions on books. New analysis reveals that Australian readers still pay more than those in the UK for a significant share of books. 

• Commercial transactions involving IP rights should be subject to competition law. The current exemption under the Competition and Consumer Act is based on outdated views and should be repealed. 

• While Australia’s enforcement system works relatively well, reform is needed to improve access, especially for small– and medium–sized enterprises. 

− Introducing (and resourcing) a specialist IP list within the Federal Circuit Court (akin to the UK model) would provide a timely and low cost option for resolving IP disputes. 

• The absence of an overarching objective, policy framework and reform champion has contributed to Australia losing its way on IP policy. 

− Better governance arrangements are needed for a more coherent and balanced approach to IP policy development and implementation. 

• International commitments substantially constrain Australia’s IP policy flexibility. 

− The Australian Government should focus its international IP engagement on reducing transaction costs for parties using IP rights in multiple jurisdictions and encouraging more balanced policy arrangements for patents and copyright. 

− An overdue review of TRIPS by the WTO would be a helpful first step. 

• Reform efforts have more often than not succumbed to misinformation and scare campaigns. Steely resolve will be needed to pursue better balanced IP arrangements.

The Commission offers the following recommendations and findings -

An analytical framework for assessing the IP system 

Recommendation 2.1 In formulating intellectual property policy, the Australian Government should be informed by a robust evidence base and be guided by the principles of: 

• effectiveness, which balances providing protection to encourage additional innovation (which would not have otherwise occurred) and allowing ideas to be disseminated widely • efficiency, which balances returns to innovators and to the wider community • adaptability, which balances providing policy certainty and having a system that is agile in response to change • accountability, which balances the cost of collecting and analysing policy–relevant information against the benefits of having transparent and evidence–based policy that considers community wellbeing. 

Copyright term and scope 

Finding 4.1 The scope and term of copyright protection in Australia has expanded over time, often with no transparent evidence-based analysis, and is now skewed too far in favour of copyright holders. While a single optimal copyright term is arguably elusive, it is likely to be considerably less than 70 years after death. 

Copyright use and licensing 

RECOMMENDATION 5.1 The Australian Government should amend the Copyright Act 1968 (Cth) to: • make unenforceable any part of an agreement restricting or preventing a use of copyright material that is permitted by a copyright exception • permit consumers to circumvent technological protection measures for legitimate uses of copyright material. 

Recommendation 5.2 The Australian Government should: • amend the Copyright Act 1968 (Cth) to make clear that it is not an infringement for consumers to circumvent geoblocking technology, as recommended in the House of Representatives Standing Committee on Infrastructure and Communications’ report At What Cost? IT pricing and the Australia tax • avoid any international agreements that would prevent or ban consumers from circumventing geoblocking technology. 

Recommendation 5.3 The Australian Government should proceed to repeal parallel import restrictions for books to take effect no later than the end of 2017. 

Recommendation 5.4 The Australian Government should strengthen the governance and transparency arrangements for collecting societies. In particular: • The Australian Competition and Consumer Commission should undertake a review of the current code, assessing its efficacy in balancing the interests of copyright collecting societies and licensees. • The review should consider whether the current voluntary code: represents best practice, contains sufficient monitoring and review mechanisms, and if the code should be mandatory for all collecting societies. 

Fair use or fair dealing — what is fair for Australia? 

Recommendation 6.1 The Australian Government should accept and implement the Australian Law Reform Commission’s final recommendations regarding a fair use exception in Australia. 

Recommendation 6.2 The Australian Government should enact the Australian Law Reform Commission recommendations to limit liability for the use of orphan works, where a user has undertaken a diligent search to locate the relevant rights holder. 

The patent system — getting the fundamentals right 

Recommendation 7.1 The Australian Government should incorporate an objects clause into the Patents Act 1990 (Cth). The objects clause should describe the purpose of the legislation as enhancing the wellbeing of Australians by promoting technological innovation and the transfer and dissemination of technology. In so doing, the patent system should balance over time the interests of producers, owners and users of technology. 

Finding 7.1 The Raising the Bar initiative moved the inventive step and other elements of patent law in the right direction by raising the threshold for granting a patent. There is a strong case, however, for further raising the threshold. 

Recommendation 7.2 The Australian Government should amend ss. 7(2) and 7(3) of the Patents Act 1990 (Cth) such that an invention is taken to involve an inventive step if, having regard to the prior art base, it is not obvious to a person skilled in the relevant art. The Explanatory Memorandum should state: • a ‘scintilla’ of invention, or a scenario where the skilled person would not ‘directly be led as a matter of course’, are insufficient thresholds for meeting the inventive step • the ‘obvious to try’ test applied in Europe would in some instances be a suitable test. IP Australia should update the Australian Patent Office Manual of Practice and Procedure such that it will consider the technical features of an invention for the purpose of the inventive step and novelty tests. 

Recommendation 7.3 IP Australia should reform its patent filing processes to require applicants to identify the technical features of the invention in the set of claims. 

Recommendation 7.4 The Australian Government and IP Australia should set patent fees to promote broader intellectual property policy objectives, rather than the current primary objective of achieving cost recovery. To this end, the Australian Government, with input from IP Australia, should: • restructure patent renewal fees such that they rise each year at an increasing rate (including years in which patents receive an extension of term) — fees later in the life of a patent would well exceed current levels • reduce the initial threshold for claim fees, and increase claim fees for applications with a large number of claims. 

The innovation patent system 

Recommendation 8.1 The Australian Government should abolish the innovation patent system. Chapter 9: Business method patents and software patents 

Finding 9.1 Raising the inventive step, requiring technical features in patent claims, and the inclusion of an objects clause would better balance the patent rights of software innovators and users. 

Pharmaceuticals - getting the right policy prescription 

Recommendation 10.1 The Australian Government should reform extensions of patent term for pharmaceuticals such that they are only: (i) available for patents covering an active pharmaceutical ingredient, and (ii) calculated based on the time taken by the Therapeutic Goods Administration for regulatory approval over and above 255 working days (one year). The Australian Government should reform s. 76A of the Patents Act 1990 (Cth) to improve data collection requirements for extensions of term, drawing on the model applied in Canada. Thereafter no extensions of term should be granted until data is received in a satisfactory form. 

Finding 10.1 There are no grounds to extend the period of data protection for any pharmaceutical products, including biologics. 

Recommendation 10.2 The Australian Government should introduce a system for transparent reporting and monitoring of settlements between originator and generic pharmaceutical companies to detect potential pay for delay agreements. This system should be based on the model used in the United States, administered by the Australian Competition and Consumer Commission, and include guidelines on the approach to monitoring as part of the broader guidance on the application of the Competition and Consumer Act 2010 (Cth) to intellectual property (recommendation 15.1). The monitoring should operate for a period of five years. Following this period, the Australian Government should review the regulation of pay for delay agreements (and other potentially anticompetitive arrangements specific to the pharmaceutical sector). 

Registered designs 

Finding 11.1 The Australian Government has committed to implement many of the recommendations made by the Advisory Council on Intellectual Property in its recent review of Australia’s designs system. These measures will help address participant concerns about the cost of acquiring registered design rights, and the lack of understanding of design law. Recommendation 19.2 provides for a low-cost avenue for IP enforcement currently sought by designers. 

Trade marks and geographical indications 

Recommendation 12.1 The Australian Government should amend the Trade Marks Act 1995 (Cth) to:

• reduce the grace period from 5 years to 3 years before new registrations can be challenged for non use 

• remove the presumption of registrability in assessing whether a mark could be misleading or confusing at application • ensure that parallel imports of marked goods do not infringe an Australian registered trade mark when the marked good has been brought to market elsewhere by the owner of the mark or its licensee. Section 97A of the Trade Marks Act 2002 (New Zealand) could serve as a model clause in this regard.

IP Australia should:

• require those seeking trade mark protection to state whether they are using the mark or ‘intending to use’ the mark at application, registration and renewal, and record this on the Australian Trade Mark On line Search System (ATMOSS). It should also seek confirmation from trade mark holders that register with an ‘intent to use’ that their mark is actually in use following the grace period, with this information also recorded on the ATMOSS 

• require the Trade Marks Office to return to its previous practice of routinely challenging trade mark applications that contain contemporary geographical references (under s. 43 of the Trade Marks Act) • in conjunction with the Australian Securities and Investment Commission, link the ATMOSS database with the business registration portal, including to ensure a warning if a business registration may infringe an existing trade mark. 

Recommendation 12.2 The Australian Government should amend the Australian Grape and Wine Authority Act 2013 (Cth) and associated regulations to allow the Geographical Indications (GIs) Committee to amend or omit existing GIs in a manner similar to existing arrangements for the determination of a GI (including preserving the avenues of appeal to the Administrative Appeals Tribunal). Any omissions or amendments to GIs determined in such a manner should only take effect after a ‘grace period’ determined by the GI Committee on a case by case basis. 

Plant Breeder’s Rights 

Recommendation 13.1 The Australian Government should proceed to implement the Advisory Council on Intellectual Property’s 2010 recommendation to amend the Plant Breeder’s Rights Act 1994 (Cth) to enable essentially derived variety (EDV) declarations to be made in respect of any variety. 

Circuit layout rights 

Finding 14.1 Dedicated intellectual property protection for circuit layouts is not ideal and seldom used, but given Australia’s international commitment to protect circuit layouts and no superior alternatives, the best policy option is to maintain the status quo. 

Intellectual property rights and competition law 

Recommendation 15.1 The Australian Government should repeal s. 51(3) of the Competition and Consumer Act 2010 (Cth) (Competition and Consumer Act) at the same time as giving effect to recommendations of the (Harper) Competition Policy Review on the per se prohibitions. The Australian Competition and Consumer Commission should issue guidance on the application of part IV of the Competition and Consumer Act to intellectual property. 

IP and public institutions 

RECOMMENDATION 16.1 The Australian, and State and Territory governments should implement an open access policy for publicly funded research. The policy should provide free and open access arrangements for all publications funded by governments, directly or through university funding, within 12 months of publication. The policy should minimise exemptions. The Australian Government should seek to establish the same policy for international agencies to which it is a contributory funder, but which still charge for their publications, such as the Organisation for Economic Cooperation and Development. 

Finding 16.1 The adoption of an additional ‘use it or lose it’ provision for patents owned by publicly funded organisations is not warranted. 

Intellectual property’s institutional arrangements 

Recommendation 17.1 The Australian Government should promote a coherent and integrated approach to IP policy by: • establishing and maintaining greater IP policy expertise in the Department of Industry, Innovation and Science • ensuring the allocation of functions to IP Australia has regard to conflicts arising from IP Australia’s role as IP rights administrator and involvement in policy development and advice • establishing a standing (interdepartmental) IP Policy Group and formal working arrangements to ensure agencies work together within the policy framework outlined in this report. The Group would comprise those departments with responsibility for industrial and creative IP rights, the Treasury, and others as needed, including IP Australia. 

Finding 17.1 Australia’s approach to negotiating IP provisions in international treaties could be improved through greater use of independent impact assessment and more meaningful stakeholder consultation. 

Recommendation 17.2 The Australian Government should charge the interdepartmental IP Policy Group (recommendation 17.1) and the Department of Foreign Affairs and Trade with the task of developing guidance for IP provisions in international treaties. This guidance should incorporate the following principles: • avoiding the inclusion of IP provisions in bilateral and regional trade agreements and leaving negotiations on IP standards to multilateral fora • protecting flexibility to achieve policy goals, such as by reserving the right to draft exceptions and limitations • explicitly considering the long term consequences for the public interest and the domestic IP system in cases where IP demands of other countries are accepted in exchange for obtaining other benefits • identifying no go areas that are likely to be seldom or never in Australia’s interests, such as retrospective extensions of IP rights • conducting negotiations, as far as their nature makes it possible, in an open and transparent manner and ensuring that rights holders and industry groups do not enjoy preferential treatment over other stakeholders. 

International cooperation in IP 

Recommendation 18.1 The Australian Government should: • pursue international collaborative efforts to streamline IP administrative and licensing processes separately from efforts to align standards of IP protection. In so doing, it should consider a range of cooperative mechanisms, such as mutual recognition • use multilateral forums when seeking to align standards of protection. 

Recommendation 18.2 The Australian Government should play a more active role in international forums on intellectual property policy — areas to pursue include: • calling for a review of the TRIPS Agreement (under Article 71.1) by the WTO • exploring opportunities to further raise the threshold for inventive step for patents • pursuing the steps needed to explicitly allow the manufacture for export of pharmaceuticals in their patent extension period • working towards a system of eventual publication of clinical trial data for pharmaceuticals in exchange for statutory data protection • identifying and progressing reforms that would strike a better balance in respect of copyright scope and term. 

Compliance and enforcement of IP rights 

Recommendation 19.1 The Australian Government should expand the safe harbour scheme to cover not just carriage service providers, but all providers of online services. 

Finding 19.1 Timely and competitively priced access to copyright-protected works is the most efficient and effective way to reduce online copyright infringement. 

Recommendation 19.2 The Australian Government should introduce a specialist IP list in the Federal Circuit Court, encompassing features similar to those of the United Kingdom Intellectual Property Enterprise Court, including limiting trials to two days, caps on costs and damages, and a small claims procedure. The jurisdiction of the Federal Circuit Court should be expanded so it can hear all IP matters. This would complement current reforms by the Federal Court for management of IP cases within the National Court Framework, which are likely to benefit parties involved in high value IP disputes. The Federal Circuit Court should be adequately resourced to ensure that any increase in its workload arising from these reforms does not result in longer resolution times. The Australian Government should assess the costs and benefits of these reforms five years after implementation, also taking into account the progress of the Federal Court’s proposed reforms to IP case management.

Conrad

From Conrad Black's self-absorbed interview in Vanity Fair -

Of course, I know nothing precise about what goes on in News Corp. but it has been for decades a rigorously micro-managed company and Rupert Murdoch has created and flaunted an attitude of unlimited right to intrude on, harass, and to the limit that may be legally feasible, defame people whom he or his editors target. The News Corp. company ethos is one of lawlessness and unrestrained liberty self-righteously to do what it wants, inflated by notions of decisive political influence. I doubt if he personally ordered telephone or internet intercepts on individuals, but he must have known that some of his employees did them routinely, going back, at the latest, to some of the famous cell-phone conversations of the Prince of Wales. Murdoch deserves all the credit for building so powerful a company that most of its institutional self-confidence was justified, and most of the discredit for the sleazy way he operated it. I would add that I was more offended by the cowardice and hypocrisy of those in the British Establishment who licked his boots — not to mention other places — for decades, and now swaddle themselves in shock sanctimony than I was by the offensive activities.

On life in prison -

All that day and the next, inmates approached to introduce themselves. Almost all had been following his case on CNN, and all, Black says, were as pleasant as could be. One — "a Wall Street Journal subscriber," Black recalls — showed him the cafeteria. That first night, Black noticed a well-coiffed prisoner approaching, trailing a phalanx of other inmates. The man, who turned out to be a senior member of the Genovese crime family, smiled and held out his hand. "Welcome, Mr. Black," he said. "No one will bother you here. If you catch a cold, we will find out who you got it from." He smiled again. "You know, we have much in common."

"Because we are victims of an unjust system?" Black offered.

"Not just that," the mafioso said. “We are industrialists.”

For whatever reason, in fact, Black says, he was never bothered or harassed by other inmates. "Yes, well, I quickly developed alliances with the Mafia people, then the Cubans. I was friendly with the 'good ol' boys' and the African-Americans. They all understood I had fought the system, and I do believe I earned their respect for that." He takes a sip of wine. "Everyone got along, you know, except with the child-molesters. There was the occasional scuffle there, I heard."

And on his self-reflection ...

As he worked on his memoir, Black spent long hours considering his ordeal. He picks at a dessert cookie. "What I’ve been trying to do the last eight years is to deduce, at a very fundamental level, what is the message of all this?" he muses. "I don't doubt that I am a humbler, more sensitive person now that I have experienced conditions with which I'd had little experience. I've worked hard to find something meaningful. You have to believe, whether you are cleaning latrines or tutoring inmates, that it served some purpose. I have tried to make the most of an unjust charge, and in this book I have tried to expose the injustice of a system that is at the very core of this great country. That is the takeaway from all this, I think."

He smiles. "You know, the judge told me she thought I was a better man now, and I took that as a sort of head-patting expression on her part, you know, that she had the wisdom to send me to prison. But I think she’s right. I probably am. It is a broadening experience."

The interview promotes Black's forthcoming book. He'd have been better served with a more probing account - less emphasis on his return to the family estate (12 cars etc) and supposed victimisation, more on business and the law.

Bananas and dried shark

From the ADB biography of Ian Ramsay Maxwell (1901–1979), professor of English at Melbourne University -

Maxwell's bravura performance of Robert Burns's 'Tam o'Shanter' was famous, as was the occasional shedding of an emphatic tear. Only late in the piece did he realize that one could lecture on a poem without knowing it by heart. At informal gatherings he would sing affectingly.

Maxwell held his chair at Melbourne until the end of February 1968, surviving sturdily into the new Leavisite era of literary moralism. He published little, being chiefly famous for his spellbinding lectures and for his latterly acquired enthusiasm for Old Icelandic language and literature. His study in the Old Arts building was legendary for its aged furniture, bookbinding equipment, overproof rum and 'deliquescent bananas', though few colleagues could be persuaded to sample the slab of dried shark which he brought back from one trip to Iceland. In 1966 he was appointed (chevalier) to the Icelandic Order of the Falcon. He derived joy from his remote bush camp at Howqua, whence came the story of his climbing a tree with a knife between his teeth, seeking to cut the throats of cormorants. His enthusiasm for axemanship was pronounced, and in one letter he wrote: 'some swine stole my axe, and I had a mild headache for a day and a half as I thought out what I should like to do to him'.

After his retirement, Maxwell was widely said to spend six and a half days at the university instead of seven. His clubbable, informal reading groups in the Norse sagas continued unabated, and there was a private edition of his useful pamphlet on rhythm and metre, Scansion Scanned (Melbourne, 1967).

McLuhan

From Alan Jacobs' New Atlantis item on Marshall McLuhan -

McLuhan was simply dismissive of such puzzlement [about Hot and Cool media]. In his preface to a later edition of the book, he wrote that "the section on 'media hot and cool' confused many reviewers of Understanding Media who were unable to recognize the very large structural changes in human outlook that are occurring today". His critics, then, are just out of touch with contemporary experience. In a later interview he would add, shifting the ground of his defense, "Clear prose indicates the absence of thought". Any confusion we experience is the inevitable result of McLuhan’s profundity — a claim quite similar to the ones made by Judith Butler when responding to the news that she had “won” the 1998 edition of the Bad Writing Contest sponsored by the journal Philosophy and Literature.

I have been reading McLuhan off and on since, at age sixteen, I bought a copy of The Gutenberg Galaxy. His centenary — McLuhan was born in Edmonton, Alberta on July 21, 1911 — provides an occasion for me to clarify my own oscillating responses to his work and his reputation. I have come to certain conclusions. First, that McLuhan never made arguments, only assertions. Second, that those assertions are usually wrong, and when they are not wrong they are highly debatable. Third, that McLuhan had an uncanny instinct for reading and quoting scholarly books that would become field-defining classics. Fourth, that McLuhan’s determination to bring the vast resources of humanistic scholarship to bear upon the analysis of new media is an astonishingly fruitful one, and an example to be followed. And finally, that once one has absorbed that example there is no need to read anything that McLuhan ever wrote.

Jacobs goes on to comment that -

To today’s reader, McLuhan’s responses to these works resemble nothing so much as a series of blog posts. (As my friend Tim Carmody has pointed out, this is even more true of McLuhan’s first book, The Mechanical Bride [1951], which is basically an anthology of advertisements with brief commentaries, a kind of proto-tumblelog.) He quotes a passage, riffs on it for a few sentences or paragraphs, then moves on to another book: quote, riff, quote, riff. And sometimes just quote: one section consists largely of a lengthy three-paragraph selection from Iona and Peter Opie’s Lore and Language of Schoolchildren (1959), while another gives seven brief paragraphs from Erik Barnouw’s Mass Communication (1956), in both cases with very brief introduction but no comment. As I have noted, the “mosaic” method here is an intentional homage to or imitation of the non-linear structures of the great Modernists. It may even be significant that what Yeats wanted to do, had he been granted the privilege of traveling through time to Justinian’s Byzantium, was to work in mosaic tile, to be absorbed thereby into a great collective endeavor in devotion to which he could forget his own identity. McLuhan’s refusal to produce a consecutive argument might well be an indication of his own mental quirks and limitations, but surely it was an attempt to allow “the Gutenberg Galaxy” — the vast constellation of idea, inventions, and practices that constitute “the making of typographic man” — to speak for itself.

WSG centenary

It is the centenary of the death of acute legal commentator and frequent litigant (contract, defamation, copyright) Sir William Schwenck Gilbert (1836-1911).

The ODNB notes that -

Gilbert died of heart failure at Grim's Dyke on 29 May 1911, having swum too rapidly to save a girl who mistakenly supposed she was drowning in his artificial lake. His body was cremated, and his ashes were buried on 2 June in the churchyard of St John the Evangelist in Great Stanmore, Middlesex.

Gellner

From Stefan Collini's LRB review of Ernest Gellner: An Intellectual Biography (London: Verso 2010) by John Hall -

When Ernest Gellner was teaching at the Central European University in Prague in 1995, the last year of his life, he cultivated informal social relations with the graduate students there. One student “confessed to unease when Gellner sat down to watch television with him – saying it was as if Max Weber had dropped by”. It requires only a little familiarity with Weber’s vastly ambitious oeuvre and notoriously austere personality to imagine why that might be an unsettling experience, as well as an unlikely one. Curiously, Perry Anderson had, three or four years earlier, been trying to imagine Weber in front of a television set, as a way of making a comparison between Gellner’s complacent-seeming endorsement of post-1945 mass affluence and Weber’s more agonised reflections on Europe after 1918: “It is difficult to imagine Weber, relaxed before a television set, greeting the festivities of the time as a new Belle Epoque”.

Famous but smelly feet

'Couple to forge future of the British monarchy', one of the BBC's more fatuous items on yesterday's royal wedding indicated that "The House of Windsor, its power stripped away over the centuries, now survives on being noticed. It withers, if ignored". Oh dear, that sounds like 'famous for being famous', with the House of Windsor largely indistinguishable from celebrities such as David Beckham or Lindsay Lohan or the exhibitionists in the Big Brother House.

Having survived -

The corgis have been consumed at the afternoon reception, the crowds are beginning to diminish, and we are left with a fresh royal recruit - Her Royal Highness the Duchess of Cambridge

- corgis being of course canapes - I was reminded of the recent ODNB profile of Jane Myddelton, who is characterised simply as a "beauty" and is famous for being famous, albeit with smelly feet.

The date of birth of Myddelton (née Needham) is unknown. She was baptised in 1646 and died some time between 1692 and 1703. She was married at the age of fourteen, as his second wife, to a man some ten years older than herself, Charles Myddelton as his second wife.

According to the courtier and writer Anthony Hamilton's ironic pen-portrait, Mrs Myddelton's beauty soon attracted many admirers, but she had an air of 'indolent langour' which not everyone found appealing, and her efforts to appear brilliant succeeded only in putting her audience to sleep. His acerbic comments may owe something to the failure of his friend the comte de Gramont to seduce her. Gramont, who arrived in London in January 1663, instantly pursued Jane Myddelton, as did Richard Jones, Viscount Ranelagh. Gramont soon desisted, the French ambassador reporting in August 1663 that Mrs Myddelton had ordered him to stop as it was both useless and disagreeable. Colonel William Russell, son of the Hon. Edward Russell, and grandson of Francis, fourth earl of Bedford, sent her presents and owned her portrait but only one of the admirers mentioned by Hamilton certainly became her lover - Ralph Montagu, master of the horse to the duchess of York and then the queen. Mrs Myddelton was painted by Sir Peter Lely in the early 1660s as one of a series of portraits of beautiful women to hang in St James's Palace. The portrait indicates she was blonde, with the fashionably full face, heavy-lidded eyes, 'bee-stung' lips, and rounded figure of the Restoration.

Alas, there's a canker in every rose, or in every disagreeable memoirist. The ODNB records that -

In 1665 the diarist Samuel Pepys saw Jane twice: on 22 March at Gresham College, when he called her "a very great beauty I never knew or heard of before", and on 10 April in Hyde Park, where she was the only "beauty" he saw that day. ... On 3 October Pepys was troubled to hear that she was "noted for carrying about her body a continued soure base smell that is very offensive especially, if she be a little hot", a problem referred to in two later satires Colin (1679) and The Ladies March (1681):

Middleton, where'er she goes,
confirms the scandal of her toes.

... Rumours circulated that Jane was to be appointed a dresser to the queen but, Browne wrote, "the conditions have not yett a mutuall consent and I am told hir last indisposition hath a little impaired hir esclat". Nothing seems to have come of the negotiations. Pepys saw Mrs Myddelton on 5 February 1667 at the King's Theatre in Drury Lane, and on 23 June that year he wrote that a previous rumour he had heard, that Mrs Myddelton was now a mistress of the duke of York, was untrue. Robert, second earl of Sunderland, commissioned her picture from Lely in 1666, Lorenzo Magalotti visiting England in 1668 included her in his list of English beauties, and the following year the French ambassador reported that the king was pursuing her, but again she seems to have avoided becoming a royal mistress.

Virtuous, it seems, or merely descreet, as well as beautiful. Her younger sister Eleanor became the mistress of the king's son James, duke of Monmouth, about 1674 and had four children with him.

Mrs Myddelton became friendly with both the king's mistress, the duchess of Portsmouth, and her rival the duchess of Mazarin, in 1676. In the summer of that year the French ambassador, Courtin, reported that Mrs Myddelton was the most beautiful woman in the kingdom and that the aged poet and philosopher M. de Saint-Evremond had fallen hopelessly in love with her, but that Ralph Montagu, who had been her lover for a long time, had now fallen for the duchess of Mazarin. Courtin was greatly attracted to Mrs Myddelton, who he claimed was not only a great beauty but most amiable. It was, however, difficult to get near her as she was surrounded by admirers and, moreover, Courtin did not think she could be seduced by money, having once refused a significant present from Gramont. Courtin's praise was such that the French minister Louvois requested her portrait.

The profile comments that -

From a protestant Welsh gentry background and married young into a similar family, not wealthy and with nonconformist friends such as the Angleseys, Jane Myddelton's image as a 'beauty', which she no doubt cultivated, gave her an entree to court circles and gained her many male admirers, although she in fact seems to have been attracted to relatively few of them. "Illustre entre les belles" ("Illustrious among beauties"; Steinman, 60), "handsomely made, all white and golden" (Hamilton, 109), for her own and subsequent generations Jane Myddelton was the epitome of the Restoration beauty, never mentioned without the epithet "fair" or "beautiful". Such indeed was the exclusive interest in her looks that she seems almost wholly defined by them and the person remains rather less accessible than the famous image.

Contemporary sources refer unkindly to "the notorious Mrs Middleton" and to "the fair one's funky hose".

He didn't like her

From Joseph Epstein's snarky WSJ review of Sempre Susan (Atlas & Co, 2011) by Sigrid Nunez -

Sontag wasn't sufficiently interested in real-life details, the lifeblood of fiction, but only in ideas. She also wrote and directed films, which were not well-reviewed: I have not seen these myself, but there is time enough to do so, for I have long assumed that they are playing as a permanent double feature in the only movie theater in hell.

In case you didn't get the message that Epstein didn't like her he comments that -

In the end, Susan Sontag may have been most notable as a photographic subject and for the querulous interview, of which she gave a bookful (see "Conversations With Susan Sontag.") She was photographed by the best in the business, in poses sexy, earnest, sultry, brainy and sublimely detached. She did the siren in a thousand faces. Her last partner, Annie Leibovitz, is, appropriately, best known as a celebrity photographer. Sontag's obituary in the New York Times was accompanied by no fewer than four photographs — an instance of intellectual cheesecake.

If Susan Sontag had been a less striking woman when younger, her ideas would not have had the reach that they did. Something similar could be said about Mary McCarthy, another attractive writer, who claimed that Sontag was "the imitation me." Today, more than six years after Sontag's death, not her writing — as a prose stylist she gave no pleasure — but only the phenomenon of Susan Sontag is of interest.

And -

"Intelligence," Sontag wrote, "is really a kind of taste: taste in ideas." In her thrall to ideas she resembles the pure type of the intellectual. The difficulty, though, was in the quality of so many of her ideas, most of which cannot be too soon forgot. Her worst offenses in this line were in politics, where her specialty was extravagant utterance.

During the Vietnam War, Sontag went off to Hanoi as one of those people Lenin called "useful idiots"—that is, people who could be expected to defend Communism without any interest in investigating the brutality behind it. There she found the North Vietnamese people noble and gentle, if a touch boring and puritanical for her tastes. Doubtless that trip led to her most famous foolish remark, when she said that "the white race is the cancer of human history," later revising this judgment by noting that it was a slander on cancer. Hers was the standard leftist view on Israel, which was — natch — that it is a racist and imperialist country. All her political views were left-wing commonplace, noteworthy only because of her extreme statement of them.

Andrew Roberts in the WSJ adopts the same tone in his review of Lelyveld's Great Soul: Mahatma Gandhi And His Struggle With India (Knopf, 2011) -

"Great Soul" ... obligingly gives readers more than enough information to discern that he was a sexual weirdo, a political incompetent and a fanatical faddist — one who was often downright cruel to those around him. Gandhi was therefore the archetypal 20th-century progressive intellectual, professing his love for mankind as a concept while actually despising people as individuals.

George Scialabba emotes from the other direction -

Gandhi is, to my mind, the gold standard of 20th-century political greatness. He produced tremendous effects, overwhelmingly good, and he achieved them not by luck, force, or guile but virtuously, by persuasion and example. Martin Luther King is perhaps his peer in these respects, but the scale of Gandhi's accomplishment was much greater. ...

Lelyveld's probing account of the visionary-as-politician reveals that, as one might expect, the politician often prevailed over the visionary. The Mahatma had a remarkable capacity for compromise, and even for nimble rationalization. But he was morally serious, a genuine "great soul," and thus lacked the true politician's talent for convenient self-deception. "By the end," Lelyveld writes, he was "forced to recognized that the great majority of his supposed followers hadn't followed him very far," spiritually speaking.

Comfortable with dogs

From the Ivan Roots biography, in the ODNB, of Sir Charles Firth (1857-1936) -

Firth's private life, about which he was unforthcoming (his son was never mentioned in his Who's Who entries), was modest and even, considering his wealth, austere. The great working library at 2 Northmoor Road could hardly be counted an extravagance. As regius professor he was a fellow of Oriel, where he took his part in college life, dining often in hall and enjoying conversation with fellow academics. He was a member of the Athenaeum. Somewhat pessimistic, he was not without a sense of humour and, very occasionally, showed a flash of wit. Photographs in later life portray a solid bearded figure, in thick clothing and heavy footwear - he was slightly lame - with a watch-chain resting on an ample stomach; a pet dog looks comfortable with him. Like Richard Cromwell, whose article he wrote for the Dictionary of National Biography, he was a heavy smoker; like him, too, he lived to a great age. He died on 19 February 1936 at the Acland Nursing Home, 25 Banbury Road, Oxford, and was buried on 21 February at Wolvercote. In his will he declared that his widow was to select what she wished to keep from among his books, prints, and other possessions; the remainder was to go to Sheffield University, maintaining the Firth family connection.

Saints leak, traitors steal

The governance muddle known as Wikileaks continues, with more of the usual hyperbole and murky claims/counterclaims, and references to the alleged psychosis of the cat named Herr Schmitt.

Today's NY Times reports on Daniel Domscheit-Berg's Inside WikiLeaks: My Time with Julian Assange at the World’s Most Dangerous Website (Carlton: Scribe 2011), which I'm reading at the moment -

former staffer, Daniel Domscheit-Berg, a German computer scientist who was WikiLeaks’ second-in-command before falling out with Mr. Assange last summer, writes of tensions between WikiLeaks’ core members and Mr. Assange. They disagreed, he writes, over Mr. Assange’s leadership style, his paranoia — he asserts that Mr. Assange began to travel with bodyguards in late 2010 — and the way he managed WikiLeaks’ finances.

When he and other core members left WikiLeaks, he writes, they decided to take much of its leaked material and a crucial system they had worked on that allows for the secure submission of new leaks. Mr. Domscheit-Berg wrote that they took the material from Mr. Assange because "children shouldn't play with guns".

Though Mr. Domscheit-Berg and the other defectors have started another leaking site, OpenLeaks, he writes that he does not intend to release the material himself, but will return it when Mr. Assange "can prove that he can store the material securely and handle it carefully and responsibly'.

The excerpts emerged in leaked pages of the book, to be released officially on Friday in Germany and on Tuesday in the United States. The leaked passages were confirmed as genuine by Chloe Johnson-Hill, a spokeswoman for the book's publisher, Random House.

In response to the extracts, a spokesman for WikiLeaks, Kristinn Hrafnsson, released a statement to Forbes magazine that said WikiLeaks "has been taking legal action" against Mr. Domscheit-Berg. The spokesman also said that Mr. Domscheit-Berg did not hold significant roles within WikiLeaks and that his assertions were "based upon limited information or malicious falsifications". WikiLeaks accuses him of "sabotage" in relation to the submissions system.

Mr. Hrafnsson did not immediately respond to a request for clarification, and Mr. Assange’s British lawyer, Mark Stephens, said he was "not in a position to comment". Mr. Domscheit-Berg confirmed that he had received a legal letter, but said it did not specify any action.

Gabriel Schoenfeld in the WSJ comments that -

Domscheit-Berg describes an organization dominated by an increasingly mercurial, narcissistic and dictatorial man whose actions threatened to subvert whatever success WikiLeaks could claim for itself. Mr. Domscheit-Berg, the former spokesman for WikiLeaks, worked closely with Mr. Assange for three years, at times sharing the same hotel room with him as they crisscrossed Europe. He thought Mr. Assange was "cool." He shared Mr. Assange's computer-programming background and his anarchist politics. "I think Proudhon's What Is Property? is the most important book ever written," he writes. But last August Mr. Assange "suspended" Mr. Domscheit-Berg from WikiLeaks and then expelled him.

The story Mr. Domscheit-Berg tells is one of hero worship followed by disillusionment. After joining WikiLeaks in 2007 — the organization had been launched the previous year — he found himself getting to know Mr. Assange better and did not like what he saw. Mr. Assange, he says, developed a "cult of personality." He told reporters invented versions of his past to foster a sense of mystery. He did not want to share the spotlight with anyone. When Mr. Domscheit-Berg gave a rare interview about WikiLeaks, Mr. Assange accused him of being a media whore.

More important, Mr. Assange and Mr. Domscheit-Berg had WikiLeaks present a false face to the world. In dealing with the public, they created fictitious employees for the organization's nonexistent "legal service" and "tech" departments, Mr. Domscheit-Berg says, and "grotesquely exaggerated" the number of volunteers—several thousand were claimed. In fact, it was only a handful, often just two.

The cause of transparency demanded not only lying but extreme secrecy. Although WikiLeaks was ready to expose the personal emails of individuals, Mr. Assange himself lived a clandestine existence, claiming that his safety was at risk. Such paranoia was just one facet of his peculiar behavior, which ranged from the incessant search for female conquests to deficient hygiene. "Julian," Mr. Domscheit-Berg writes, "ate everything with his hands, and he always wiped his fingers on his pants. I have never seen pants as greasy as his in my whole life."

Most oppressive to Mr. Domscheit-Berg was Mr. Assange's autocratic management style: He brooked no criticism and didn't even want staffers discussing WikiLeaks matters among themselves, outside his presence. "Do not challenge leadership in times of crisis" was Mr. Assange's repeated answer to his underling's complaints.

Some of those complaints involved matters of great moment. On the eve of publishing 91,000 U.S. military documents about Afghanistan, Mr. Domscheit-Berg learned only at the last minute that the names of Afghan civilians mentioned in the cables had not been deleted. (Mr. Assange, evidently, had promised the New York Times, the Guardian and Der Spiegel, his media collaborators, that they would be.) Too late. The documents went up on the Web and innocent individuals were put in jeopardy of retribution from the Taliban.

Schoenfeld snipes that -

More than anything else, there is remarkable shallowness to Mr. Domscheit-Berg's memoir. He spends more space detailing the gossip in hacker circles or chronicling mundane matters (dinner one night was "meat, potatoes, and cauliflower") than addressing the profound questions of secrecy and openness in modern life.

Melly

From the Oxford National Dictionary of Biography entry on George Melly (1926-2007) -

In 1974 Melly resigned from The Observer and joined Chiltern's band full time, adopting his trademark razor-sharp 1930s suits and outrageous fedoras. It was a pop cultural silhouette, ironic and self-referential. Nor did age abate his sense of anarchy. He fell out with Roland Penrose, surrealist and founder of the Institute of Contemporary Arts, when Penrose invited the duke of Edinburgh to open a Picasso exhibition. He subsequently turned down a CBE: 'I didn't see the point of accepting an honour from a Hanoverian sovereign of a former empire' (The Guardian, 18 Feb 2004).

Melly had published his first volume of memoirs, Owning Up, in 1965. A rumbustious, picaresque account of his town and provincial jazz tours, the book was both filthy and hilarious. It was followed by a prequel in the shape of Rum, Bum and Concertina (1977), which dealt with his disreputable naval service and offered such memorable scenes as Melly, the put-upon rating, being defended below decks by a tough seaman: '"Anyone who says a word against f-- Picasso", he murmured gently, "gets f-- done over"' (Owning Up, 320). A third volume, Scouse Mouse (1984), retold his Liverpudlian upbringing and underlined, in a wonderfully unsentimental yet nostalgic manner, how far he had travelled. In all three books he was at pains to strike a deliberately outrageous tone, one that enhanced rather than concealed his essentially humane and affectionate personality.

Melly also wrote a witty account, with Barry Fantoni, of his milieu in The Media Mob (1980). His sensitive biography of the outsider artist Scottie Wilson, It's All Writ Out for You, appeared in 1986 - a theme pursued in Tribe of One: Great Naive and Primitive Painters of the British Isles, with Michael Wood, in 1991. He edited Edward James's Swans Reflecting Elephants: My Early Years (1982), an evocation of the great surrealist patron; and in 1997 published Don't Tell Sybil: an Intimate Memoir of ELT Mesens. Hooked! (2000) was enlivened with a passage about m-- over a trout. 'I put that bit in early because not many people are interested in reviewing a fishing book unless something startles them' (Scotland on Sunday, 1 July 2001).

Editorial amendment in the Picasso anecdote, of course, so that this blog doesn't get sin-binned

Bad Bernard

Bernard Herrmann on a bad day -

I always find difficult people [eg Orson Welles] easy. I only find glad-Harrys difficult and vacuous. Nice guys are difficult. It's because they're a bunch of empty-heads, that's why they're nice guys! They pretend to be nice guys, but it's a disguise. They're not nice. They're vicious, vindictive people who try to make sure that anything good hasn't got a chance!

From a 1971 Los Angeles Free Press interview quoted in A Heart At Fire's Center: The Life and Music of Bernard Herrmann (University of California Press, 1991) by Stephen Smith.

Dubya

From Eliot Weinberger's 33(1) LRB (2011) review of George Bush's Decision Points (London: Virgin 2010), characterised as "the perfect Christmas gift for one's Republican uncle".

... in the mere two years since he left Washington, Bush is beginning to seem like a reasonable man compared to the Republicans who have now been elected to higher office. Unlike them, he was not a 'family values' Christian who liked to have prostitutes dress him in diapers; he did not have to pay a fine of $1.7 billion (yes, billion) for defrauding the government; he does not advocate burning the Quran; he does not believe that Obama is a Kenyan Muslim allied with terrorists who is building internment camps for dissidents; he does not believe that people of Hispanic origin should be randomly stopped and asked to prove their immigration status; he does not support a military invasion of Mexico or a constitutional amendment stating that the United States cannot be subject to Sharia law or an electric fence along the entire Canadian border or the death penalty for doctors who provide abortions; he does not believe that bicycle lanes in major cities are part of a plot by the United Nations to impose a single world government. The Palinites and Tea Partiers are getting the publicity, but the old-fashioned neocons still hold the power, and they may well run the ever patient Jeb Bush – practically the only Republican left with both dull conservative respectability and national name recognition – for president in 2012.

Ephemera

From Lewis Lapham's 12 December post 'Sweet Celebrity' -

Let’s consider for a moment the fates of two men who took unique paths in military life and whose careers were once intertwined: General David Petraeus, now our Afghan War commander, and his former subordinate General Stanley McChrystal, our former Afghan War commander before he became the first general since Douglas MacArthur to be axed by a president -- in his case, for a Rolling Stone version of “loose lips sink ships” (or administrations). Petraeus, the most political U.S. general in memory, dusted off the failed counterinsurgency doctrine of the Vietnam era, made it bright and shiny again, built fabulous relationships in Congress and in militarized Washington think tanks, and then rode it all to the heights in Iraq and at U.S. Central Command. Now, in Afghanistan, without the slightest compunction, he's left his beloved counterinsurgency doctrine in a ditch as conditions on the ground worsen. Instead, he’s called in the firepower and the propaganda, both in double measure. (Oh, and in case you hadn't heard, we’ve finally achieved glorious victory in the godforsaken village of Marjah in southern Afghanistan where a senior Marine general recently announced that the battle against the Taliban there is “essentially over.” Huzzah!)

Thanks to such a string of dazzling “successes,” Petraeus has scaled the heights of American celebrity. Just the other day, he reached Mount-McKinley-esque elevations (with Everest still ahead) when ABC’s Barbara Walters declared him not just an “American hero” (though that, too), but the Most Fascinating Person of 2010! He topped a list which included Justin Bieber, Sarah Palin, and future British princess Kate Middleton, possibly because he has so much more bling than they do.

Bad guy with big dog

From Elaine Showalter's 'James Ellroy, the Ancient Mariner of LA Noir' in the Times Literary Supplement (3 Nov 2010)-

James Ellroy is the Ancient Mariner of LA Noir. For decades, he has been fixing his audiences with a glittering eye and delivering his staccato rap about his mother’s murder when he was a child, his adolescent delinquencies, obsessions and perversions, his voyeurism and addictions, and his colossal and grandiose literary ambitions. I first heard Ellroy give his spiel in a BBC radio interview in the 1990s; since then he has repeated it internationally at bookstores and literary festivals, in print and on the air; he seems to have confessed it to every interviewer but Oprah. In May 2004, he notes in this new memoir, he delivered the "six thousandth public performance of my dead-mother act'” at a gig in Sacramento, with the usual success: "I was boffo. I read from pitch-perfect memory and laid down even eye contact".

The "Hilliker curse" is the name Ellroy gives to the cosmic malediction for his guilt-ridden love–hate feelings towards his mother, Jean Hilliker Ellroy, and his belief that since her death he has been destined to pursue women who resemble her, or his fantasies of her. When his mother was killed, Ellroy began his lifelong quest "to write books and find the Other" – the woman who would be his Shelleyan partner, doppelgänger and soulmate. He must stalk these women, worship them, seduce them, protect them and save them. Moreover, he believes, his curse and his creativity cannot be separated: "The Curse incubated my narrative gift". As long as Ellroy is on his quest and toting this particular albatross, he feels that he can be a great and compelling writer. If and when the albatross drops off – when he is secure, contented, domesticated and normal – he risks losing his literary gift. Through the sheer force of his hammering prose, Ellroy aims to convince himself, and bludgeon the reader into agreement, that his art and his obsessions are the same.

the company of the dead

From Deborah Solomon's 28 October NY Times review of Grant Wood: A Life (Knopf, 2010) by R. Tripp Evans -

Wood was only 50 when he died of pancreatic cancer in 1942. His posthumous reputation was its own forlorn drama; critics and art historians who should have known better wrote him off as a propagandist for conservative values. He was accused of fostering a shrill nationalism that was actually compared to the unalloyed evil of the Third Reich. After the war, the art historian H. W. Janson asserted that "the Regionalist credo could be matched more or less verbatim from the writings of Nazi experts on art". In 1962, when Janson published his now classic textbook on the history of Western art, he made no mention of Wood.

Wood had to wait for the arrival of postmodernism and its assault on the official story of art before he could be rehabilitated. Now he is back, and it says something about the folly and failures of art history that it took the special claims of gender studies to bring Wood's life into view in our time. Evans wants to convince us that Wood longed for what he could not have — but a longing for men was not what made him distinctive or memorable. He longed for the company of the dead and tunneled back through time in his enchanting and elegiac paintings. He deserves to be remembered as one of the essential eccentrics of ­American art.

Solomon comments that -

In interviews and profiles, Wood was inevitably described as a "shy bachelor", and Evans states confidently in his introduction that the artist "spent most of his life masking — not always successfully — his homosexuality". But a man who stifles his desires to the point of near extinction cannot accurately be called gay, and by the end of the book the reader has no idea whether Wood was ever intimate with a man. Affairs are hinted at, but the author is unable to document them; Wood himself claimed to be innocent of carnal satisfactions. One of his friends is quoted in the book recalling a night when Wood seems to have confessed to being chastely asexual, which is not implausible.

Snark

From Lawrence Rosenthal's provocative 2010 paper 'Those Who Can't, Teach: What the Legal Career of John Yoo Tells Us about Who Should Be Teaching Law' -

Perhaps no member of the legal academy in America is more controversial than John Yoo. For his role in producing legal opinions authorizing what is thought by many to be abusive treatment of detainees as part of the Bush Administration’s “Global War on Terror,” some have called for him to be subjected to professional discipline, others have called for his criminal prosecution. This paper raises a different question: whether John Yoo – and his like – ought to be teaching law.

John Yoo provides something of a case study in the problems in legal education today. As a scholar, Professor Yoo is considered something of a superstar; he has been described as “a leading scholar on the relationship of international law to constitutional commands.” Even so; he teaches at a law school – an entity engaged in preprofessional education. Prior to tenure in the Bush Administration, Professor Yoo had little experience in the practice of the law; as we will see, this makes him typical of the current generation of legal educators. Professor Yoo also represents something of a natural experiment of a type that we rarely see – the unusual case of a leading legal scholar with the limited professional experience typical of his generation who leaves the academy and practices law on a regular basis. When Professor Yoo actually practiced law, he made quite a hash of things. It is remarkable that the legal academy could regard as something of a superstar an individual who proves unable to practice – at an acceptable level – the profession for which he is training his students. Professor Yoo’s case is unusual in that he took the rare step of leaving the academic cocoon and venturing into a position where his professional deficiencies were likely to be exposed, but there is reason to believe that his lack of professional judgment is common among the scholars of his generation. All of this suggests that there is something deeply wrong with the state of legal education today.

This article begins by illustrating the deficiencies in the legal work of Professor Yoo during his service in the Department of Justice. It then explain why those deficiencies cast grave doubt on Professor Yoo’s qualifications to teach law. The article concludes by observing that Professor Yoo's case illustrates the problems that inheres with the legal academy's decision to champion the theoretician as teacher instead of those who have developed the kind of professional judgment so critical to success in the practice of law.

RIP Louis Henkin

The NY Times reports the death of US human rights scholar Louis Henkin - "often credited with creating the field of human rights law and the author of classic works on constitutional law and the legal aspects of foreign policy".

The Times comments that -

Professor Henkin, unusual in combining equal expertise in constitutional law and international law, moved easily between academia and government. His legal scholarship was a fundamental resource for other scholars involved in human rights and international law, and his books addressed to a broader audience — notably Foreign Affairs and the Constitution, The Rights of Man Today, How Nations Behave and The Age of Rights — became required reading for government officials and diplomats.

Through his teaching at Columbia University, where he founded the Center for the Study of Human Rights in 1978 and the Human Rights Institute in 1998, and through seminars run by the Aspen Institute's Justice and Society Program, he trained hundreds of legal specialists and advocates in the field of human rights law.

"It is no exaggeration to say that no American was more instrumental in the development of human rights law than Lou", said Elisa Massimino, the president and chief executive officer of Human Rights First, an organization Professor Henkin helped found in 1978 under the name Lawyers' Committee for Human Rights. "He literally and figuratively wrote the book on human rights." ...

[H]e served as a law clerk for Justice Felix Frankfurter of the United States Supreme Court.

Mr. Henkin, an ardent New Dealer, worked for the State Department's United Nations bureau and its Office of European Regional Affairs from 1948 to 1956. He played a main role in negotiating the United Nation’s 1951 Refugee Convention, which set forth the standards defining refugees, their rights and the legal obligations of nations toward them.

In 1956 he was invited by Columbia University to spend a year studying the legal issues involved in the control and verification of nuclear weapons, the subject of his first book, Arms Control and Inspection in American Law (1958).

Several works on law, foreign policy and diplomacy followed, including The Berlin Crisis and the United Nations (1959) and Disarmament: The Lawyer's Interests (1964).

After teaching law at the University of Pennsylvania for five years beginning in 1958, he returned to Columbia, where he taught at the law school into his 80s.

His highly influential Foreign Affairs and the Constitution (1972) explored the Constitution's division of power between the president and Congress on matters pertaining to foreign affairs, a quest that took on particular urgency against the backdrop of the Vietnam War, then still in progress. ...

He returned to the subject in 1990 with Constitutionalism, Democracy and Foreign Affairs, a much more impassioned book, that warned of the dangers of an imperial presidency and insisted on the importance of human rights as a cornerstone of American foreign policy. Professor Henkin waged a multifront struggle to extend universalist ideas of human rights and the reach of the law. “He pushed back forcefully against the Roman observation that in war — and perhaps in foreign relations generally — the law is silent,” Sarah H. Cleveland, a law professor at Columbia, said in an interview with the Columbia Human Rights Law Review in 2007.

In his books, he took on such issues as compliance with international law (How Nations Behave, 1968) and the underlying principles of human rights (The Rights of Man Today, 1978). ... Professor Henkin's close ties to the United States government allowed him to serve as a go-between for human rights organizations and Congressional committees drafting rights legislation. He also filed numerous amicus briefs in Supreme Court cases including, most recently, Hamdan v. Rumsfeld, a 2006 case in which the court rejected the Bush administration’s plan to try Guantánamo Bay detainees before military commissions.

judy judy judy

From Martha Nussbaum's 'The Professor of Parody' in The New Republic 22 February 1999 -

It is difficult to come to grips with Butler's ideas, because it is difficult to figure out what they are. Butler is a very smart person. In public discussions, she proves that she can speak clearly and has a quick grasp of what is said to her. Her written style, however, is ponderous and obscure. It is dense with allusions to other theorists, drawn from a wide range of different theoretical traditions. In addition to Foucault, and to a more recent focus on Freud, Butler's work relies heavily on the thought of Louis Althusser, the French lesbian theorist Monique Wittig, the American anthropologist Gayle Rubin, Jacques Lacan, J.L. Austin, and the American philosopher of language Saul Kripke. These figures do not all agree with one another, to say the least; so an initial problem in reading Butler is that one is bewildered to find her arguments buttressed by appeal to so many contradictory concepts and doctrines, usually without any account of how the apparent contradictions will be resolved.

A further problem lies in Butler's casual mode of allusion. The ideas of these thinkers are never described in enough detail to include the uninitiated (if you are not familiar with the Althusserian concept of "interpellation," you are lost for chapters) or to explain to the initiated how, precisely, the difficult ideas are being understood. Of course, much academic writing is allusive in some way: it presupposes prior knowledge of certain doctrines and positions. But in both the continental and the Anglo-American philosophical traditions, academic writers for a specialist audience standardly acknowledge that the figures they mention are complicated, and the object of many different interpretations. They therefore typically assume the responsibility of advancing a definite interpretation among the contested ones, and of showing by argument why they have interpreted the figure as they have, and why their own interpretation is better than others.

We find none of this in Butler. Divergent interpretations are simply not considered--even where, as in the cases of Foucault and Freud, she is advancing highly contestable interpretations that would not be accepted by many scholars. Thus one is led to the conclusion that the allusiveness of the writing cannot be explained in the usual way, by positing an audience of specialists eager to debate the details of an esoteric academic position. The writing is simply too thin to satisfy any such audience. It is also obvious that Butler's work is not directed at a non-academic audience eager to grapple with actual injustices. Such an audience would simply be baffled by the thick soup of Butler's prose, by its air of in-group knowingness, by its extremely high ratio of names to explanations.

To whom, then, is Butler speaking? It would seem that she is addressing a group of young feminist theorists in the academy who are neither students of philosophy, caring about what Althusser and Freud and Kripke really said, nor outsiders, needing to be informed about the nature of their projects and persuaded of their worth. This implied audience is imagined as remarkably docile. Subservient to the oracular voice of Butler's text, and dazzled by its patina of high-concept abstractness, the imagined reader poses few questions, requests no arguments and no clear definitions of terms.

And -

Why does Butler prefer to write in this teasing, exasperating way? The style is certainly not unprecedented. Some precincts of the continental philosophical tradition, though surely not all of them, have an unfortunate tendency to regard the philosopher as a star who fascinates, and frequently by obscurity, rather than as an arguer among equals. When ideas are stated clearly, after all, they may be detached from their author: one can take them away and pursue them on one's own. When they remain mysterious (indeed, when they are not quite asserted), one remains dependent on the originating authority. The thinker is heeded only for his or her turgid charisma. One hangs in suspense, eager for the next move. When Butler does follow that "direction for thinking," what will she say? What does it mean, tell us please, for the agency of a subject to presuppose its own subordination? (No clear answer to this question, so far as I can see, is forthcoming.) One is given the impression of a mind so profoundly cogitative that it will not pronounce on anything lightly: so one waits, in awe of its depth, for it finally to do so.

In this way obscurity creates an aura of importance. It also serves another related purpose. It bullies the reader into granting that, since one cannot figure out what is going on, there must be something significant going on, some complexity of thought, where in reality there are often familiar or even shopworn notions, addressed too simply and too casually to add any new dimension of understanding. When the bullied readers of Butler's books muster the daring to think thus, they will see that the ideas in these books are thin. When Butler's notions are stated clearly and succinctly, one sees that, without a lot more distinctions and arguments, they don't go far, and they are not especially new. Thus obscurity fills the void left by an absence of a real complexity of thought and argument.
Last year Butler won the first prize in the annual Bad Writing Contest sponsored by the journal Philosophy and Literature, for the following sentence:

The move from a structuralist account in which capital is understood to structure social relations in relatively homologous ways to a view of hegemony in which power relations are subject to repetition, convergence, and rearticulation brought the question of temporality into the thinking of structure, and marked a shift from a form of Althusserian theory that takes structural totalities as theoretical objects to one in which the insights into the contingent possibility of structure inaugurate a renewed conception of hegemony as bound up with the contingent sites and strategies of the rearticulation of power.

And -

The great tragedy in the new feminist theory in America is the loss of a sense of public commitment. In this sense, Butler's self-involved feminism is extremely American, and it is not surprising that it has caught on here, where successful middle-class people prefer to focus on cultivating the self rather than thinking in a way that helps the material condition of others. Even in America, however, it is possible for theorists to be dedicated to the public good and to achieve something through that effort.

Many feminists in America are still theorizing in a way that supports material change and responds to the situation of the most oppressed. Increasingly, however, the academic and cultural trend is toward the pessimistic flirtatiousness represented by the theorizing of Butler and her followers. Butlerian feminism is in many ways easier than the old feminism. It tells scores of talented young women that they need not work on changing the law, or feeding the hungry, or assailing power through theory harnessed to material politics. They can do politics in safety of their campuses, remaining on the symbolic level, making subversive gestures at power through speech and gesture. This, the theory says, is pretty much all that is available to us anyway, by way of political action, and isn't it exciting and sexy?

In its small way, of course, this is a hopeful politics. It instructs people that they can, right now, without compromising their security, do something bold. But the boldness is entirely gestural, and insofar as Butler's ideal suggests that these symbolic gestures really are political change, it offers only a false hope. Hungry women are not fed by this, battered women are not sheltered by it, raped women do not find justice in it, gays and lesbians do not achieve legal protections through it.

Finally there is despair at the heart of the cheerful Butlerian enterprise. The big hope, the hope for a world of real justice, where laws and institutions protect the equality and the dignity of all citizens, has been banished, even perhaps mocked as sexually tedious. Judith Butler's hip quietism is a comprehensible response to the difficulty of realizing justice in America. But it is a bad response. It collaborates with evil. Feminism demands more and women deserve better.