proceedingsB of ulletinthe american academy of arts & sciences winter 2004 vol. lvii, no. 2

Stated Meeting Report, Page 8 The Economic Outlook and Current Policy Issues Robert E. Rubin

Stated Meeting Report, Page 12 Joyce, Leavis, and the Revolution of the Word Denis Donoghue

Stated Meeting Report, Page 22 The Independence of the Federal Judiciary Judith Resnik, Danny J. Boggs, and Howard Berman inside:

Challenges Posed by Newly Elected Members, Page 2

Nathan Glazer’s Tribute to Daniel P. Moynihan, Page 21

Around the Country, Page 36

In My Opinion by John S. Reed, Page 38 american academy of arts & sciences Norton’s Woods 136 Irving Street Cambridge, ma 02138-1996 usa telephone 617-576-5000 facsimile 617-576-5050 email [email protected] website www.amacad.org Calendar of Events

Monday, Tuesday, January 26, 2004 March 30, 2004 Symposium–Cambridge Understated Meeting–Madison “Have You No Sense of Decency?” McCarthyism “A Roundtable Discussion on Research and the Contents 50 Years Later Wisconsin Idea” Speakers: Nathan Glazer, Harvard Univer- Location: University of Wisconsin, Madison sity; Anthony Lewis, New York Times; and Academy News Sam Tanenhaus, Vanity Fair Time: 5:30 p.m. neh Location: House of the Academy Grant 1 Wednesday, April 14, 2004 Winter Events 1 Wednesday, February 11, 2004 1880th Stated Meeting and Joint Meeting with the Boston Athenaeum–Cambridge Challenges Posed by 1878th Stated Meeting–Cambridge Newly Elected Members 2 “Einstein’s Clocks, Poincaré’s Maps: Empires of “What’s the Point of Democracy?” Time” Speaker: Amartya Sen, Harvard University Stated Meeting Reports Speaker: Peter L. Galison, Harvard Univer- sity Location: House of the Academy Robert E. Rubin 8 Location: House of the Academy Denis Donoghue 12 Friday, Time: 6:00 p.m. February 27, 2004 Nathan Glazer’s Tribute Panel Discussion–Berkeley Monday, to Daniel P. Moynihan 21 “The Court and Congress” May 3, 2004 Understated Meeting–Cambridge Judith Resnik, Danny J. Boggs, Speakers: Philip Frickey, uc Berkeley, and and Howard Berman 22 Gordon Silverstein, uc Berkeley “Contemplating Torture and Lesser Forms of Highly Coercive Interrogation” Comments by Neal Devins, College of William Academy Projects 33 and Mary, and Nelson Polsby, uc Berkeley Speakers: Sanford Levinson, University of Texas at Austin School of Law, and Philip Location: University of California, Berkeley Around the Country 36 Heymann, Harvard Law School This event is part of the conference on “Earl Location: House of the Academy Warren and the Warren Court: A Fifty-Year In My Opinion 38 Retrospect,” co-sponsored by the Earl Warren Time: 5:00 p.m. Legal Institute and the American Academy. Nominating Committee Report 40 Wednesday, Wednesday, May 12, 2004 March 10, 2004 Forthcoming in Dædalus 41 1881st Stated Meeting and 224th Annual 1879th Stated Meeting–Cambridge Meeting–Cambridge Noteworthy 42 “Voting with Dollars” “Bugs, Behavior, and Biomolecules: The Naturalist’s Guide to the Future” Speakers: Bruce Ackerman, Yale Law School; From the Archives 44 Barney Frank, U.S. House of Representatives; Speakers: May Barenbaum, University and Nick Littlefield, Foley, Hoag & Eliot llp of Illinois at Urbana-Champaign; Thomas Eisner, Cornell University; John G. Hilde- Location: House of the Academy brand, University of Arizona; and Jerrold Meinwald, Cornell University Tuesday, March 16, 2004 Location: House of the Academy Understated Meeting–uc Irvine Time: 5:30 p.m. “Reliable Information in a Democracy: A Case Study” For information and reservations, contact Speaker: Patrick Morgan, uc Irvine Sheri Landry (phone: 617-576-5032; email: Location: uc Irvine [email protected]). Academy News Winter Events in Cambridge

Music and light were the mo- neh tifs of two winter events recent- Grant to Support ly held at the House of the Acad- emy: a Stated Meeting and holi- Visiting Scholars day concert in early December and a New Year celebration in January to view a lighting sculp- The Academy’s efforts to support younger scholars through ture on the Academy’s grounds. vsp its Visiting Scholars Program ( ) have received a major On December 3, Academy Fellow boost from a National Endowment for the Humanities Chal- Lewis Lockwood (Harvard Uni- lenge Grant. The neh award, which must be matched on a versity) addressed the Academy’s 3:1 basis, will help the Academy raise $2.4 million in funding 1877th Stated Meeting on the for Visiting Scholars in the humanities and related activities. topic “Beethoven and His Royal Disciple.” Over 250 people filled Gifts to the Academy for the VSP can be used for the match. the Academy’s auditorium to Lighting installation in hear Lockwood speak about the Norton’s Woods vsp relationship between Beethoven Now in its second year, the and his royal patron the Archduke is providing much-needed career Norton’s Woods. Powell spoke Rudolph (1788–1831), to whom about the sculpture, which uses development and research oppor- the composer dedicated over a sodium- and mercury-vapor light tunities for promising postdoc- dozen works. Lockwood’s talk, sources to create paths of light toral scholars and junior faculty. which will be reprinted in the across the Academy’s grounds, Humanities scholars in the early Spring 2004 issue of the Bulletin, and about the application of the stages of their careers face enor- included an analysis of the “Arch- scientific principles of color vision mous challenges in establishing duke” Trio, Opus 97, with musical in his work. He told the group that themselves professionally. The illustrations by the Boston Trio. had gathered indoors to view the The postdocs who have spent a The evening concluded with the academic job market now gener- year in residence at the Academy exhibition on a subzero evening ensemble’s performance of the that he was attracted to the Acad- ates only one full-time, tenure- have responded enthusiastically Archduke Trio in its entirety. emy’s site because he likes “the track position for every two new to the program. As Joseph Entin, Ph.D.s in the humanities; post- vsp At a reception on the evening interface between urban and ru- a postdoctoral scholar at the ral” that the House, the woods, doctoral fellowships outside the of January 15, Academy Fellows last year, remarked: “The Acad- and the surrounding neighbor- sciences are in short supply; and and guests gathered to view John emy offers one of the most excit- Powell’s lighting installation in hood represent. junior faculty are under pressure ing opportunities available for both to publish original research emerging scholars to develop as and to shoulder full-time teaching thinkers and writers. The oppor- loads. tunities to interact with Fellows The vsp provides younger schol- and to present our work at research ars working in the humanities, so- seminars provided wonderful oc- cial sciences, and science policy a casions for intellectual discussion chance not only to pursue research and critique, helping me to see full time for a year but also to inter- my own work in a larger context.” act with Fellows in Academy pro- Entin is now an Assistant Profes- grams and activities. These fellow- sor of English at Brooklyn College. ships provide an important oppor- Visiting Scholar Crystal Feimster, tunity to assist younger scholars on leave this year from her post as in advancing on the path to a ten- Assistant Professor of History at ured position. “The Academy is Boston College, describes the ben- offering postdoc opportunities of efits of the Academy’s program the most desirable kind,” says Da- for a scholar in a tenure-track job. vid Laurence, who as director of Feimster says that securing out- English programs for the Modern side support was the only way that Language Association is responsi- she could have taken a full year’s mla Allison Eldridge, Lewis Lockwood, Irina Murisanu, and Heng-Jin Park ble for the ’s studies of job sabbatical at more than half-pay placement for Ph.D.s in English. to work on her book manuscript Continued on page 39

Bulletin Winter 2004 1 banking, manufacturing, utilities, and nation- al defense.

The power of the Internet as a communications medium is unprecedented in human history. Never before has it been possible for an indi- vidual or an entity to communicate with so many so easily and so quickly. The impact of the Internet on society will surely be a subject for study by future historians and sociologists.

The growth of the Internet infrastructure need- ed to support the myriad demands of hun- dreds of millions of users has been explosive. When I was a graduate student, the Internet consisted of a single network in a single coun- try. Today the Internet consists of over fifteen thousand distinct networks that collectively span nearly every country in the world. The wires and fibers in these networks are con- nected, in a somewhat haphazard fashion, by millions of switches that process trillions of bits of data every second of every day.

In contrast to the growth of the Internet, the Challenges Posed by Newly Elected underlying algorithms, protocols, and soft- ware that make the Internet work have not Members changed all that much over the past twenty years. It is truly remarkable that the technolo- On October 11, 2003, the American Academy of Arts and Sciences welcomed its 223rd class of gy developed decades ago to support a single members at an Induction Ceremony in Cambridge, Massachusetts. Mathematician and comput- network used by a few thousand people has er scientist Frank Thomson Leighton, chemist Carolyn R. Bertozzi, lawyer and philanthropist scaled to support thousands of interlinked William H. Gates, Sr., and literary scholar and critic Michael Wood addressed the audience, networks used by hundreds of millions. It is which also featured a performance by world-renowned operatic baritone Sherrill Milnes. Their even more remarkable that the original proto- remarks appear below, in the order presented. cols have proved to be robust enough to sup- port many unanticipated applications, not the least of which are the World Wide Web and peer-to-peer networks for file sharing. Some As a graduate student at mit twenty-some- of the early pioneers of the Internet are mem- thing years ago, I remember thinking it was bers of this Academy, and they have made a really cool to be able to type my thesis using a tremendous contribution to society. publication-quality word processor and then There are problems with the infrastructure, to be able to send it to colleagues across the however, and these problems are now threat- country using something called e-mail. Back ening to become critical. Several of the prob- then, the network through which e-mail trav- darpan lems derive from the fact that the original In- eled was known as the et, and it had ternet protocols were based on a foundation been created to facilitate research collabora- of trust. It was assumed that people would use tions among government, industry, and uni- the Internet for the purposes for which it was versities. Back then, only a few thousand peo- intended and that they would do nothing to ple had access to this exciting new technology. harm the infrastructure or other users, either Very few, if any, had any idea of its true poten- intentionally or by accident. There was a strong tial or how it was destined to evolve. sense of community in which an individual us- Frank Thomson Leighton Today hundreds of millions of people use er would not take actions to the detriment of the Internet on a regular basis to send e-mail, the common good, even if such actions would search for information, pay bills, buy books, directly benefit that individual. s a mathematician and computer scientist, A get the news, make reservations, download While such noble assumptions were fairly safe I have been privileged to be a participant in music, run businesses, or just chat with friends. in the collegial environment of the darpanet one of the most important and exciting tech- Trillions of dollars of e-commerce are con- of twenty years ago, they have led to many of nological and sociological advances of our ducted over the Internet annually. The Inter- the vulnerabilities inherent in the Internet of generation. I am speaking, of course, of the net is even used to manage critical national in- today. Some of these vulnerabilities are well Internet. frastructure in sectors such as transportation, known. For example, who among us hasn’t 2 Bulletin Winter 2004 On the Internet, almost anyone can imperson- here today, that the Academy itself might pro- As the Internet assumes a ate almost anyone else. Impersonation was vide an ideal forum within which we can dis- more critical role in our never really contemplated when the darpa- cuss and confront this important challenge. net was designed, so no defenses were incor- With everything that has already happened national infrastructure, it porated to prevent it. The implications go well with the Internet, it is sometimes hard to re- beyond spam. For example, there are many member that this is just the beginning. Many becomes even more impor- ways for a thief to steal credit card numbers, exciting discoveries lie ahead. If the experi- personal passwords, and many other sensitive ences of the past few years are any indication tant that we address the data that are commonly transmitted over the of things to come, it will surely be an interest- Internet. If a thief wants to learn the password ing journey. vulnerabilities that have to your online bank account, the thief simply directs your computer or your Internet service come along with the benefits. provider to send him or her all Web traffic des- been inundated with spam or had our comput- tined for your bank. He can do this because it er infected by a virus or worm? Unfortunately, is relatively easy to trick a computer or the In- spam and the few well-publicized worm-based ternet into sending traffic to an unintended attacks on the Internet infrastructure represent destination. When your browser contacts the just the tip of the proverbial iceberg. thief instead of your bank, the thief responds by showing you the regular bank web pages For example, it is well known that the famed that ultimately invite you to sign in with your Slammer worm that attacked the Internet ear- password. You oblige, and the thief can now lier this year caused billions of dollars of dam- access your bank account without fear of de- age and incapacitated several important net- tection. I don’t know the precise figures on the works. Slammer infected hundreds of thou- amount of damage caused by e-crime annual- sands of computer servers within a few min- ly, but it is a large and rapidly growing problem. utes of its release into the Internet. It is less well known that, despite all its damage, Slammer As the Internet assumes a more critical role in was a relatively benign worm in that it had no our national infrastructure, it becomes even “payload.” Slammer’s only function was to more important that we address the vulnera- bilities that have come along with the benefits. replicate itself, and it was the mechanics of Carolyn R. Bertozzi the replication that caused the damage. Had Today we worry about spam, viruses, and e- Slammer been specifically designed to cause crime. Soon we will need to worry about the damage, the outcome could have been far possibility that a government or a terrorist will Asa chemist who studies biological systems, worse. And Slammer exploited just one of the use the Internet to attack critical infrastructure, I represent a rapidly growing group of inter- thousands of vulnerabilities that are discov- with far more serious effects than an overflow- disciplinary researchers who seek to under- ered in Internet-based software each year. ing mailbox or a loss of money or confidential- stand biology at the level of atoms and mole- ity. cules. We call ourselves chemical biologists. Other worms and viruses are more malevolent. In addition to using the infected computer as The challenge we face is to continue to reap I am also a movie buff. One of my all-time a host for self-replication, they also cause the the many benefits of a wonderful and remark- favorites is The Fantastic Voyage, a classic from computer to perform an Internet-based attack able technology while at the same time miti- the 1960s in which a group of scientists and of some kind. For example, the Code Red virus gating the impact of its misuse. This is, of their spacecraft were miniaturized for a jour- was designed to attack the White House’s Web course, not the first time that a technological ney through the human body–an “inner infrastructure. The recent Blaster worm was advance has had the potential to be used for space” no less cosmic or mystical than the gal- designed to attack Microsoft’s Web infrastruc- good as well as bad. In the case of the Internet, axies and nebulae of outer space. These lucky ture. In other cases, the virus or worm acts as a however, the challenge cuts across almost ev- scientists directly witnessed the organs and Trojan horse, leaving the infected computer in ery sector of society. Governments must decide tissues that sustain us; they literally navigated a vulnerable state that can be exploited later in how use of the Internet will be regulated, if vital processes, such as breathing and diges- a manner, and at a time, chosen by the attacker. at all, and how liability for misuse will be as- tion, that we take for granted every day. What signed. Academics must discover novel ways would those scientists have seen if they could The perpetrators of Slammer, Code Red, the to make the Internet more secure at the same have been shrunk further, to the size of a sin- original Blaster, and most every other virus and rate as they discover novel ways to make the gle molecule traveling along the surface of a worm have not been caught. That is because Internet do more cool things. Industry must living cell? the Internet protocols make it very easy to work harder to identify and eliminate vulnera- mask one’s identity by stealing that of anoth- bilities before they are exploited. And each Jonathan Swift is quoted as saying “Vision is er. For example, before releasing an onslaught of the hundreds of millions of Internet users the art of seeing things invisible.” In the past of unwanted e-mails into the Internet, a spam- must themselves take greater care to prevent decade or so, technologies derived from phys- mer will often hijack someone else’s Internet their computers from being compromised and ics, engineering, and chemistry have revolu- identity and use that identity as the home base used for destructive purposes. tionized the biological sciences by bringing from which to send the spam. When investiga- the invisible to light. During my own career, I tors try to detect the source of the spam, they I can’t help but think, given the diverse and have witnessed a dramatic convergence of the are led to an innocent bystander. extraordinary collection of talent represented Bulletin Winter 2004 3 et. Cells communicate with each other by vir- We have the tools to visual- tue of molecules displayed on their surfaces. ize chemical changes in the Changes in those molecules can signify changes in the cell’s physiology, including the trans- brain during the formation formation to disease states such as cancer. We develop chemical technologies for probing of a memory, the moment the types of molecules a cell displays and for relandscaping those cells whose surface mole- of first contact between a cules are antisocial and will promote disease. Some interesting avenues for diagnosis and virus and its victim, the treatment of cancer have come from this work. moment of conception. Just as the cells in our body communicate via cell surface molecules, microbial pathogens physical and biological sciences. Biology is such as bacteria and viruses can interpret our now considered a frontier to be explored with cell surface code and exploit those molecules William H. Gates, Sr. technologies originating from quite different to infect us. An example is Mycobacterium tu- fields, including condensed matter physics, berculosis, the bacterium that causes tb and aerospace engineering, and even the semicon- kills more people each year than any other sin- I need to open with a qualifying note. While I ductor industry. gle infectious agent. This bacterium attaches am an officer of the Bill and Melinda Gates to sugar molecules found on the surfaces of Foundation, my remarks here and elsewhere Two recent Nobel Prizes underscore the im- lung cells, an event that initiates infection. By on the subject of estate taxation are made for pact of physical techniques in the biological understanding the chemical details of those myself and are in no way an expression by or sciences: one in physics, for the superconduct- sugars, we are hoping to craft new approaches for the foundation. ing magnets that made possible magnetic res- for treatment and prevention. onance imaging, and another in chemistry, for As you are likely aware, I have spoken out for the X-ray crystallographic study of ion chan- As the physical and chemical sciences lead us the retention of the federal estate tax. I sup- nels, the proteins that transduce electrical sig- deeper into the details of biology, we must not pose some would wonder whether the repeal nals in the body. Other technologies have now lose sight of the larger world around us. In such or retention of a tax that is currently only a made it possible to visualize single cells within a tumultuous time, it is an overwhelming priv- modest part of total federal revenues merits a complex tissue, and even single molecules ilege to be engaged in scientific discovery and discussion among the profound subjects that within living cells. Suddenly, we have the tools in academic pursuits in general. However, we concern the membership of this organization. to visualize chemical changes in the brain dur- should not forget that academic settings permit I suggest that the issues test some fundamen- ing the formation of a memory, the moment of the flexibility to pursue scientific problems of tal national axioms and merit the thoughtful first contact between a virus and its victim, the global significance. Many of these endeavors, interest of serious citizens. tb moment of conception. What we have learned such as anti- drug development, are not I will speak to three elements of the argument: has revised our scientific thinking in radical commercially viable in private industry. In fiscal impact, the rectitude of a tax on assets ways, and has also reminded us that we are still choosing systems for basic research, global passing to heirs, and progressivity. only scratching at the surfaces of biological considerations should be part of the equation. phenomena. Recently, the estate tax has contributed some But fundamental scientific discovery–asking $30 billion, which amounts to about 1 percent The ability to study single molecules in action why and how–is not frivolous. Indeed, these of federal revenues. However, there is general has produced some particularly startling re- questions represent the natural drive to make agreement among folks involved in making sults. In the past, molecules could be studied sense of our world. James Watson is quoted as financial forecasts that this tax will become a only as a population; thus, it was unknown saying, “We used to think our future was in the major element of federal revenue. whether individual molecules within an en- stars. Now we know it is in our genes.” As my semble could possess different properties de- colleague Dr. Kate Carroll has noted, many of The growth of the wealth of our wealthiest cit- spite their chemical identity. We now know the qualities that make us human, such as hope, izens has been prodigious in recent years. It ap- that a population presents only an idealized, faith, determination, and love, remain geneti- pears that if one assumes a modest economic most probable version of reality. Single mole- cally unmappable and chemically undefined. growth rate of 2 percent between 1998 and 2052, cules can exist in different states from those of Understanding the basis of humanity is an eter- some $40.6 trillion will pass by inheritance; their neighbors and adopt improbable contor- nal challenge that crosses the disciplines of an assumption of a 4 percent growth rate will tions that are essential for their functions. Pro- the arts and sciences. We should work hard to mean an aggregated inheritance of over $130 teins can be seen “breathing,” dna “relaxing.” foster the spirit of exploration and discovery trillion. These figures lead to an estimate, even It turns out that individual molecules can have among young scholars and remind them that allowing for increased exemption amounts, of moods as different as those of individual hu- the mundane world visible to us now is just annual average federal estate tax collections of man beings while retaining their molecular one face of a more complex, more elegant uni- $157 billion using the lower growth rate and of similarity. verse that we still have no means to sense. We $752 billion using the higher rate. should show them the frontier and then follow My own work focuses on understanding the One cannot help but wonder at the thinking their vision. landscape of cell surfaces, which have turned that argues to forfeit this huge revenue stream out to be as variable as the terrain of our plan- at a time when the nation is accepting an an-

4 Bulletin Winter 2004 nual federal deficit in excess of $400 billion. up to $3.5 million per person–$7 million per $96 billion every year on fundamental research The word reckless comes to my mind. couple–and the rate of tax will have come in universities and laboratories all over this down to 45 percent. This is a reasonable set of country. And what comes of this research? At the same time, one cannot help wondering numbers by which to look at the result in dol- Well, for starters, how about things like inte- from where and from whom this revenue will lars. Here is how that formula would apply in a grated circuits, silicon microprocessors, the come if this tax is repealed. family: human genome analysis, the Internet–re- A central criticism of the estate tax is the view search results that are readily available to our of many that anyone who works hard and saves Estate Amount Rate To Heirs smart entrepreneur. should be able to leave the results of his labor of Tax of Tax Experts calculate that this basic research gen- to his family. As one irate caller to a talk show m m erates a 66 percent return. As Lester Thurow shouted, “What right has the government to $7 0 0% 7 says, “Put simply, the payoff from social invest- steal the money a man has worked hard to earn $10m $1.35m 13.5% $8.65m ment in basic research is as clear as anything is and save and which he wants to leave to his ever going to be in economics.” Another mul- family?” m m m $20 $5.85 29% $14.15 tiplier: economists tell us that 50 percent of Is there propriety in applying the taxing power $50m $19.35m 39% $30.65m the annual growth in our economy is a func- to a transfer from parent to child? My response tion of the introduction of new technology. m m m is simple: more harm than good arises from $100 $41.85 42% $58.15 So, again, how do people manage to get so rich large inheritances. in this country? It is because the laws protect and the markets maximize value, and our Are these remainder figures not enough? One science and technology keep producing new Can there be a serious ques- response is that they are too much. Some crit- products and ways to get things done. The ex- ics of inherited wealth point out that there are tion about the rectitude of istence of a working and stable market, and a two fundamental goals for an organized socie- government continuously and gratuitously ty in respect to economic affairs: (1) creating our society’s recovering from injecting new and useful science–topped off and protecting a system in which individuals with a work force of ingenious graduates from can prosper and (2) making opportunity equal its most successful citizens educations subsidized by our government– for all. They go on to point out what a great job has produced an economy that is uniquely in- a significant fraction of the we in this country have done in respect to goal novative and robust. number one but how dramatically we have fortune they leave at the failed at goal number two. The beneficiaries are not just the technology entrepreneurs–oh, no. The effects accrue to time of their death? Moving on from the family inheritance issue, the building contractor, to the owner of a string we need to look at the fairness of a tax that ap- of grocery stores, to the Wall Street broker–to Do we not see that so very often, the reliance plies to so few of our people–only 2 percent of all who seek wealth. on a large inheritance is a disadvantage to an all those who die in any year, under the present heir, who is deprived of any motivation to rules. As exemptions increase, it seems clear Again, why is our hundred-million-dollar mil- make a constructive contribution? that the percent paying the tax will get smaller. lionaire so rich? Item number one: he is an This is certainly the most progressive tax any- American. Warren Buffett says it, as usual, so “Wait!” cry the repealers. “This tax destroys where. Can it be justified? very well: parents’ motivation to work hard for the ben- efit of their kids.” Focus on the folks at the $100 million level and I personally think that society is responsible up–people whose executors are going to have for a very significant percentage of what I’ve To which those of us who want to keep this tax to write really big checks. We need to analyze earned. If you stick me down in the middle say, “Not true.” We have had this tax for near- just how you explain such a phenomenal accu- of Bangladesh or Peru or someplace, you’ll ly one hundred years, and there is no evidence mulation of money. find out how much this talent is going to whatsoever that it has diminished the urge of produce in the wrong kind of soil. I will be our ambitious fellow citizens to create wealth. No doubt the search for cause would disclose struggling thirty years later. I work in a mar- intelligence and hard work. But a deeper look ket system that happens to reward what I do Looking closer at this issue, few would argue would also disclose another fundamental fac- very well–disproportionately well. for eliminating all family inheritance. Even tor: being born in the United States–what Can there be a serious question about the rec- those of us who like the tax acknowledge that Warren Buffett refers to as winning the game titude of our society’s recovering from its most at bottom, this debate turns on the question of of ovarian roulette. how much should go to taxes and how much successful citizens a significant fraction of the to kids. What is so special about place of birth? First fortune they leave at the time of their death? off, economists agree that the presence of a This society has made it possible for these men Any examination of a policy that turns on stable market for goods and assets adds 30 per- and women and their families to have an ele- quantity requires getting some numbers on cent to the value of everything. We have that. gant life: first-class education, comfort, virtu- the table. One can argue endlessly about what ally unlimited options about where to go and size estate should be exempt and what the rate Who is the biggest venture capitalist in the his- what to do, public acclaim. Society has a just of tax should be. I suggest that it is sensible to tory of the universe? No, he does not have an claim, and it goes by the name estate tax. look at where the present legislation is taking address on Sand Hill Road. He is a fellow wide- us. In 2009 the exempt amount will have gone ly known as Uncle Sam, and he spends some

Bulletin Winter 2004 5 A colleague of mine, looking hard at a great modern painting–a vast abstract canvas by Every story has a story it is Barnett Newman–thought our usual critical not telling, and if we listen, demands were the wrong ones. What does this painting mean, what does it represent, what is we can hear it in the silence. it trying to say? These questions, he felt, were getting us nowhere. The question he wanted Not only can we guess what to ask was, What does this painting know? it means; we can also know This question has two immediate and very interesting implications: first, that a painting what it knows. might know something that the painter didn’t, and second, that the painting probably knows than any other discipline or does nothing but a lot that it is not going to tell us. Now, it seems doubt. That would not be soft or tender knowl- as if literature–plays, poems, novels, essays– edge; it wouldn’t be knowledge at all. Michael Wood must tell us what it knows because, after all, it can talk, as painting can’t. But I think exactly No, the point of imagining other people and the same question can be addressed to a work other circumstances is not to dismiss or lose There is a young man in Martin Scorsese’s of literature, and to good effect. Words speak, from sight the present people and circum- film Goodfellas who says, “As far back as I can but words have their silences too, in ordinary stances, and it is not to scramble the bound- remember, I always wanted to be a gangster.” life as in literature. aries between fact and fiction–although crit- As far back as I can remember, I always won- ics and scholars have been known to do those dered just what it is that literature does, even if It’s possible that the forms of the sonnet and things. The point is to know what is the case most of the time I merely surrendered myself the villanelle know something–about love, and what could be the case, and to know both to the enjoyment of whatever it was that it was loss, repetition, design, language, memory, of these instances intimately: the first because doing. My few words here today are an attempt longing–that the individual writers of son- we don’t have a choice, and the second because to say something about what literature does nets and villanelles may not know, or that the we are willing to imagine it and keep on doing and why we need it now more than ever. We forms know these things differently. It’s cer- so–well, more than imagine it. Literature is always need it now more than ever, whenever tain that F. Scott Fitzgerald’s later short stories the practice of living with what could be the now is. knew more about the divided contents of his case–really living with it because it occupies mind than Fitzgerald did. There is much to say your mind and your heart; it takes up your en- A little more than four hundred years ago, in on this score, but today I’d like to concentrate ergies and sympathies. England, Philip Sidney wrote “An Apology for on the other implication of the question. What Poetry” to defend literature against its ene- does this work–play, poem, novel, essay– Is this knowledge? It is not secure knowledge, mies. He called it poetry, but he meant pretty know that it is not telling us? because part of the discipline of living with much what we now mean by literature: imita- what could be the case is the steady conscious- tions of life, with imaginary people doing real Of course the knowledge, told and not told, is ness that there could always be another case– things, real people doing imaginary things, going to be different in each individual case, another other case. But I do want to suggest and, more rarely, imaginary people doing and there is a sense in which we can’t general- that this very consciousness is a discipline or imaginary things. Poetry, Sidney argued, is ize about it. But we can generalize about the can be, and it is not an easy slipping from one more philosophical than history and more his- notion of the not-told–the residue of knowl- option to the next. Every story has a story it torical than philosophy. It is neither too con- edge that we sense to be in a work but that is is not telling, and if we listen, we can hear it crete and particular nor too abstract and not made explicit. This tightens the screw of in the silence. Not only can we guess what it general, but just right, like a certain famous our question, because we are now asking not means; we can also know what it knows. We bowl of porridge, although that was not only if soft knowledge is real knowledge but can hear the kindness in the anger, the generos- Sidney’s comparison. also what silent knowledge means to us. If one ity in the rage, the certainty in the doubt, and opposite of soft is hard, the other is loud. the hope in the very articulations of despair. Sidney was being playful, so we should not take his aspersions on philosophy and history Literature–that is, both literary works and the This is not all that literature knows, but it too literally. He was completely serious, how- study of literature–is often thought to special- knows and teaches this well. The great critic ever, in his belief in the value of poetry, and ize in doubt; even the dogmatic Bertolt Brecht William Empson, moving easily from litera- he was anxious to distinguish it from what thought of himself as a “teacher of doubt.” ture to ordinary life, once wrote of “a generous he called “tougher knowledges.” This is one Why do we think this? Because literature is all scepticism which can believe at once that peo- phrase among many that make his old text about imagining alternatives, other lives, other ple are and are not guilty” as “a very normal seem so close to us. We too have our tougher places–“the always possible other case,” as and essential method.” “This sort of contra- knowledges and our more tender knowledges, Henry James put it. And doubt is important to diction,” he said, “is at once understood in lit- although the words we most frequently use literature, no doubt about it–but only because erature. People, often, cannot have done both are hard and soft. Here is the question I want it is important to all forms of learning and un- of two things, but they must have been in some to propose for your consideration, and to an- derstanding. Without doubt there is no knowl- way prepared to have done either; whichever swer partially: How soft is soft knowledge? Is edge. More specifically, there is no sustained they did, they will have still lingering in their soft knowledge really knowledge at all? Maybe knowledge without sustained doubt. So it can’t minds the way they would have preserved their if it’s soft it isn’t knowledge. be that literature really does more doubting self-respect if they had acted differently; they

6 Bulletin Winter 2004 are only to be understood by bearing both pos- Singing does send a certain message–espe- for criticizing his politics. Lyon was an anti- sibilities in mind.” Transposing this thought cially those two beautiful pieces–but I do have Federalist. There were two parties then, the to my theme, I would say that we need to hear, a little story, if you will permit me to both sing Federalists and the anti-Federalist Jeffersonian both for ourselves and for others, the story that and speak. I have a relationship, in a strange Republicans. is being told and the story that is not being way, to the Academy; you will see what I mean At any rate, there was a newly passed sedition told, because we shan’t understand anything if at the end of the story. act at the time, which was duly repealed some we don’t. My maternal third great-grandfather, Matthew years later–and Matthew Lyon was the first Lyon, was born in Wicklow, Ireland, in 1747. person to be indicted under that law. As Mc- When he was thirteen, he stowed away on a Cullough notes, “He spent four months in a ship bound for somewhere in this area of the foul Vermont jail.” His friends paid a thousand- United States, not necessarily Boston. He was dollar fine, which was heavy back then. Some- discovered before the end of the trip, and the how, he emerged out of jail as more of a nation- captain sold him as an indentured servant for al hero and was immediately reelected to Con- three years in Litchfield, Connecticut. gress. And perhaps to get even–not with John Adams personally, but with John Adams as the Time passed. He found his way to the Green head of a party or the head of the country– Mountain Boys and served with Ethan Allen Matthew Lyon cast one of the deciding votes all through our Revolutionary War. He was that put Thomas Jefferson in office; poor John in the battle when we took Fort Ticonderoga Adams served only one term. As you will recall, back from the British. In 1797 he was elected it was the only time in American history when to Congress as the sole representative from the vice president ran against the president, Vermont and served until 1801. He never lost because they were not of the same party. his Irish mouth; he was a rabble-rouser. I am not sure how Matthew Lyon would feel I recently finished the book John Adams by Da- about me being inducted into this Academy Sherrill Milnes vid McCullough, which is a wonderful tome– founded by John Adams, among others–but very thick, but fascinating reading. As far as I this third great-grandson is extremely thrilled knew, nothing in the book had any relation- Sherrill Milnes preceded his remarks with a perform- and extremely honored. ance of “Surely the Presence of the Lord Is in This ship to me–I was simply enjoying it and learn- Place” by Lanny Wolfe, and Aaron Copland’s ar- ing more about our country. All of a sudden, rangement of the old American song “At the River.” I found myself reading that my third great- grandfather, Matthew Lyon–on the floor of © 2003 by Frank Thomson Leighton, Carolyn the hall in Philadelphia where Congress was R. Bertozzi, William H. Gates, Sr., Michael holding its meetings–spit in somebody’s face Wood, and Sherrill Milnes, respectively.

Academy Membership Profile

Current membership: Class of 2003:

3,808 Fellows from 46 states 181 Fellows from 22 states

560 Foreign Honorary Members from 36 countries 29 Foreign Honorary Members from 9 countries

The membership is drawn from 172 colleges and uni- The new class is drawn from 146 colleges and universi- versities, 143 educational and research institutions, 74 ties, 17 educational and research institutions, 16 busi- cultural and artistic organizations, 171 businesses and nesses and corporations, 3 foundations and charitable corporations, 34 foundations and charitable organiza- organizations, and 3 government agencies. tions, and 14 government agencies.

Bulletin Winter 2004 7 During my sophomore year in college, I took a 300 philosophy course from an elderly Greek pro- fessor who started each class by turning over a 200 wastebasket on top of the desk in front of the A Dramatic Return to U.S. room and then he used that wastebasket as a 100 podium for his notes. To me that gesture sym- bolized the simplicity–in the best sense of the 0 word–of this insightful man’s thinking. The Budget Deficits underlying theme that I took from his year- -100 long course, as he deconstructed philosopher after philosopher, was that there is no prov- -200 $ Billion able certainty. When I mentioned this to my father, he told me that he too had enrolled in -300 a philosophy course at Columbia many years before, and that at the opening lecture his pro- -400 fessor had also made the point that nothing could be proven with certainty. At the end of -500 the class, my father went up to the front of the room, banged on the hardwood table, con- -600 1990 1994 1996 1998 2000 2002 2004 2006 2008 2010 cluded that the table existed, and dropped the course. I had a very different reaction. In the skeptical Harvard environment of that day, The Economic Outlook and Current Professor Demos’s course crystallized a train of thinking about certainty that has stayed Policy Issues with me ever since and has enormously impor- tant ramifications. Robert E. Rubin Introduction by Louis W. Cabot If you accept the view that there is no provable certainty–and that is the view of modern sci- This presentation was given at the 1875th Stated Meeting, held in New York on November 3, 2003. ence–then you are quickly led to the conclu- sion that reality is complex and uncertain and Robert E. Rubin, a Fellow of the American Academy for opening domestic and foreign markets to that decisions are about probabilities and since 2001, is Chairman of the Executive Committee trade and for maintaining America’s commit- trade-offs. at Citigroup, Inc. ment to multilateral financial institutions. Now, as chairman of the Local Initiative Sup- I believe that only with that mind-set can a pol- Louis W. Cabot is Vice President of the Academy port Corporation, he continues his long-stand- icymaker–or for that matter someone running and Chairman of Cabot-Wellington, LLC. He has ing efforts to foster business investments in a business or investing–thoughtfully come to been a Fellow of the Academy since 1958. depressed urban and rural areas. grips with the immense uncertainties and com- plexities of the economic environment. In an When Bob resigned his position as secretary of effort to capture that mind-set and to explore Louis W. Cabot the treasury, President Clinton said: “He built policy issues that I think will be central to a spirit and a belief that we could actually our nation’s economic well-being in the years make this economy what it ought to be for our ahead, I started working on a book about three people. That will be his endearing achievement years ago. The book, titled In an Uncertain World: From the beginning of Robert Rubin’s career –along with the fact that everybody believed Tough Choices from Wall Street to Washington, de- at Goldman Sachs through his years of public that as long as he was secretary of the treasury scribes my experiences from Washington and service in the Clinton administration to his nothing bad could happen.” I am proud to in- Wall Street as well as discusses policy issues– current position as chairman of the executive troduce Mr. Secretary, Robert Rubin. but also investment and business issues–that committee at Citigroup, Bob has been a major in my judgment are central to our future. figure at the center of the American financial system. He once said that “public service is an As you can tell from the book’s title, I believe essential calling for the well-being of America” Robert E. Rubin that we are in one of those times when the eco- and he carried out that responsibility with con- nomic outlook, which is always uncertain, is summate skill and integrity. In Washington, especially uncertain. There are powerful, com- Bob guided the newly created National Eco- Iwas asked to comment this evening on the peting forces that will determine the econom- nomic Council as it oversaw and coordinated U.S. economy and on some of the policy is- ic conditions in the years ahead, and what hap- economic policy making at the domestic and sues that we face. But I would like to start on a pens will be enormously affected by the policy international level. As the seventieth secretary slightly different tack, which will quickly lead choices we make in the face of these compet- of the treasury, he worked with both parties back into–and in my view usefully frame– ing forces. Moreover, as the book describes, to achieve landmark legislation balancing the this discussion. many of the policy issues we face are not only federal budget. He was an aggressive advocate substantively difficult but also politically dif- ficult. Unfortunately, at least in my view, the

8 Bulletin Winter 2004 by strengths carried forward from the 1990s, To start, the imbalances that I mentioned I believe that we are in one including a low unemployment rate, high pro- before for the most part have continued and of those times when the ductivity growth, and a sound fiscal position some have even worsened. Consumer debt is now thoroughly dissipated. Moreover, at least at roughly record levels as a percentage of the economic outlook, which in my view, once the difficult conditions began economy, and despite lower debt service due the policy decisions in response to those con- to interest rates, it seems to me likely at some is always uncertain, is ditions–leaving aside the Fed–were far from point to constrain consumption. Excess ca- optimal with respect to minimizing the dura- pacity in the United States is still substantial, especially uncertain. tion and severity of the difficult period and though the effect of that on investment could with respect to positioning the country for the be balanced against the deterioration in the American people have too little understanding long term. Most fundamentally we could have capital stock from three years of low invest- of most of these issues, and that makes the pol- accomplished whatever fiscal stimulative pur- ment. Very significantly, the current account itics of moving forward very tough and obfus- poses we wanted with temporary stimulative deficit is at very high levels. That may not mat- cation relatively easy. Our country would ben- measures, not tax cuts that had large costs and ter for some time, but at some point, if not cor- efit enormously from a more economically lit- great deficit effects in later years, and the tax rected, our currency is likely either to gradual- erate electorate. cuts would have been more efficient if they ly decline–which could be readily absorbed To illustrate this very serious problem and its had been focused predominantly on low- and as an orderly adjustment–or to have a sharp effects, I remember once being in the Oval Of- middle-income people who have the highest fice with President Clinton and he said to me propensity to spend. A greater jobs’ impact Enormous and never end- that one of his greatest regrets of his time in might also have been possible through more office was that he was never able–despite his aid to state and local government for current ing deficits greatly reduce tremendous skills–to get the American peo- spending in schools, homeland security, infor- ple to better understand the benefits of trade, mation, and the like. our flexibility in responding with the result that trade, which has disloca- Looking forward, most Wall Street econo- to future emergencies– tions that are keenly felt but benefits that are mists feel that growth will be healthy through more diffuse and less well understood, has re- the second quarter of next year, due to accom- geopolitical or economic. mained a very difficult political issue. I also modative monetary policy and massive stimu- remember, and I describe this in the book too, lus from defense, homeland security spending, decline, which could hurt our economy through that Diane Feinstein told me that in her 1994 and tax cuts–however badly those tax cuts higher interest rates and possibly a lower stock Senate campaign 42 percent of the people in a were designed for that purpose. This forecast market. The long-term fiscal mess now in place California poll thought their income taxes had seems to me likely to be correct, albeit not cer- adds to this risk of a sharp decline because it been increased by the 1993 deficit reduction tain. And it is not clear whether this growth will too can undermine foreign confidence in our program. In fact, that program increased in- be accompanied by strong job growth, which currency–especially in conjunction with our come taxes for only the top 1.2 percent of tax- is important economically and politically. In large current account deficit. It increases the payers, but the distortion of the program by any case, assuming that this short-term fore- vulnerability to a diminution of foreign con- opponents had been so effective that a near cast does turn out to be correct, the big ques- fidence because we have a large fiscal deficit majority in that California poll believed that tion is, once a strong stimulus has worked its to fund, and, while the explanation is compli- their income taxes had been increased. way through the system by mid next year, does cated, the fiscal mess contributes to the size of the recovery continue and become a sustain- Let me now turn to a brief discussion of the eco- the current account deficit. nomic outlook and the policy issues before us. able expansion or do we go back to a more sluggish economy? Geopolitical conditions are obviously another The 1990s were a remarkable period economi- very serious problem: Iraq, North Korea, the I think the answer could readily go either way. cally–the longest expansion in U.S. economic Middle East conflict, nuclear proliferation, ter- What I would like to do now is to look at some history, with high growth, low inflation, great- rorism–all of this is very relevant to our econ- of the risks that are relevant to that question– ly increased productivity, over 20 million new omy. In our administration, we had to deal first risks that even if we do enter a more sustained jobs in the private sector, and rising incomes with the Mexican financial crisis and then the period of growth could continue to overhang across the spectrum. Many factors contributed so-called Asian financial crisis. There is no the economy and pose an overall significant but I don’t think there is any question that pol- question that strong American leadership was risk for the longer term. icy was central and indispensable, especially a needed in order to deal with these matters but dramatic change in fiscal policy but also a con- I focus on these risks not necessarily because I we very quickly learned that we also had to tinuation of trade liberalization and much else. have a judgment as to their likelihood, although work cooperatively with the rest of the world However, as seems inevitable with extended I do think they are serious, but because they if we were going to succeed. I believe that the good times, imbalances also developed during are either ignored or underweighted in almost same is true with respect to today’s geopolit- that period, including high levels of corporate all forecasts by economists, investors, and the ical challenges: leadership and true coopera- and consumer debt, large current account defi- like–perhaps because they are not quantifi- tive endeavor together are the keys to most ef- cits, a stock market that went to excess by con- able and therefore don’t fit neatly into mod- fectively achieving our purposes. ventional standards, and the development of els–and because they pose policy challenges There is also a backlash against trade liberaliza- substantial excess capacity. Those imbalances that are absolutely critical to our economic tion both in the United States and around the created the virtual inevitability of a difficult future. period, though the difficulties were lessened world. When I was at treasury, I testified before

Bulletin Winter 2004 9 ment environment. And protectionism would rates but it also promoted consumer and busi- While our economic po- only make matters worse. Consumers, interest ness confidence, as well as confidence in inter- tential is strong, realizing rates, and inflation would suffer, competitive national capital markets. All of this is described nations would be able to receive inputs to their in my book as part of what we call “the great that potential will depend production processes more cheaply then we fiscal debate,” which has long raged in differ- could, and our trading partners would likely ent forms and will be front and center for years heavily on the policy choices retaliate. More flexible exchange rates in China to come. and Japan might help, but I suspect that that Understanding the morass of the early 1990s, we make. likely effect is overestimated. What would help and then the sustained recovery, provides use- a lot would be more robust economies in Eu- ful guidance in projecting the consequences of the House Ways and Means Committee that not rope and Japan. Unfortunately, neither area today’s fiscal position–never ending and sub- only exports but imports were good, because is likely to have anything more than modest stantial long-term deficits that will get worse of lower inflation and lower interest rates, tra- growth, even after expected improvement with the passage of each year because of the ditional comparative advantage theory, and next year, and neither area seems likely to me rapidly increasing retirement of the baby- competitive pressure on domestic industry to in the near future to do enough to address the boomer generation around the end of this de- be productive. A conservative on the commit- structural issues that have led to sluggish eco- cade. In the book, I go into a quantitative anal- tee said that I was the first public official that nomies. he could remember testifying to the benefit of ysis of the interest rate effects that these defi- imports. Unfortunately, as I mentioned a mo- There are a number of other significant risks cits are likely to have, but suffice to say for this ment ago, the dislocations created by trade are and issues that I could discuss, but I would like discussion that those effects are serious. And highly visible, and the benefits are diffuse and to wind up this discussion of risks with U.S. they could be far more severe if the markets not well recognized by the American people. fiscal policy, our politically caused Achilles’ come to believe that the government may give That makes trade a very difficult issue politi- heel. In January 2001, the bipartisan Congres- up on fiscal discipline and attempt to deal with cally, and I think trade will be a major focus in sional Budget Office projected a ten-year sur- its debt problem through inflation, and even the 2004 election with both parties playing to plus of $5.6 trillion. Goldman Sachs & Co. a more if they undermine foreign confidence in this issue. Moreover, the politics are now made few weeks ago projected a ten-year deficit of our currency. In addition, as I mentioned a few more difficult because the range of goods and $5.5 trillion. That is a deterioration of about moments ago, our long-term fiscal morass can services subject to the pressures of trade has $11 trillion, or allowing for adjustments for have substantial adverse impacts on the more expanded enormously. It is not only tradition- comparability, about $9 trillion–and that is general level of confidence of consumers and al manufacturing but software development, the number to keep in mind. The 2001 and business. processing, call centers, and now even legal re- 2003 tax cuts, assuming, as their opponents Finally, these enormous and never ending defi- search and investment banking research that argued, that those tax cuts scheduled to expire cits greatly reduce our flexibility in responding are being outsourced due to the new technol- will instead be made permanent, account di- to future emergencies–geopolitical or eco- ogies that create real-time connection across rectly for roughly one-third of the $9 trillion nomic. For example, our ability to respond to the globe and to the hundreds of millions of deterioration and over 50 percent of the $5.5 the tragic attack of 9/11 with a massive defense people now well educated in China and India trillion deficit itself, and indirectly for far more and homeland security effort without creating available to work at pay levels way below those because those tax cuts act to undermine the a sharp upward spike in interest rates was pos- in the United States. fragile political consensus that existed around sible because of the large fiscal surplus that we fiscal discipline. There is also the substantive question of wheth- then enjoyed. Also, the capacity of the federal er these new developments in any way change On January 7, 1993, during the transition, the government to perform the functions that the the traditional case for trade liberalization. I new economic team met with President Clin- American people desire of government will be have spent a fair bit of time discussing this with ton to discuss strategy to restore sustained greatly reduced by our future fiscal conditions. people I view as deeply thoughtful on these growth. Shortly into the meeting President All of this is an enormous threat to our future matters, and they certainly believe the answer Clinton said, “I got it–the deficit is a thresh- economic well-being. When these effects may to that question is no–and that seems to me old issue,” and he opted for the politically dif- occur, however, is not predictable. As long as highly likely to be right. However, since the ficult path of restoring fiscal discipline to pro- private demand for capital is relatively low–as dislocations have become much broader, great- mote recovery through lower interest rates. has been the case for the last three years–in- er, and quicker, some believe there may be a Supply-side critics, like Newt Gingrich and terest rates will be low and the markets will be time gap for adjustment–which corresponds Dick Armey, said that tax increases involved in relatively unlikely to look forward to long-term to the more worried view some business peo- our 1993 deficit reduction program would lead fiscal conditions. But once private demand for ple have–and a gap could have significant eco- to recession. Instead we had the remarkable capital becomes robust, that demand will col- nomic and political consequences. In any case, economic conditions that I described a few mo- lide with the government’s need to fund its these developments place an even higher pre- ments ago. That was due in part to favorable fiscal deficits, the markets will look forward to mium on equipping our people to be produc- interest rate effects and in part to something the fiscal morass, and at some point the severe tive and competitive in the global economy we had not fully anticipated. In the minds of threats to our economy from our fiscal mess through a strong public education system, many people, the deficits had become a sym- are highly likely to become a reality. through effective retraining and placement bol of a much broader inability to manage our assistance to address dislocations in our inner To conclude, I focused this evening primarily economic affairs, and so had damaged con- cities, and through fiscal discipline to provide on risks because I believe that while our eco- sumer and business confidence. Restoring fis- low interest rates conducive to a robust invest- nomic potential is strong, given the many ad- cal discipline not only promoted lower interest

10 Bulletin Winter 2004 vantages we have in the economic arena, real- ance between being aggressive to realize the izing that potential will depend heavily on the benefits, if conditions turn out to be favorable, policy choices we make. Unsound choices can and careful in order to weather difficult times lead to real difficulty, and I think we are on the should they occur. Our country has a history wrong track on many important fronts. The of resilience in overcoming difficulties and first requisite for making good policy choices mistakes, and on the theory that past is prelude, is to recognize the complexities and uncertain- that, as well as our natural advantages, could ties inherent in the issues we face. A group as bode well for a good future, but it is going to distinguished as the American Academy of take a lot of work by all of us to get there. Arts and Sciences and dedicated to thought can help promulgate that realization, as well as better public understanding of the issues © 2003 by Louis W. Cabot and Robert E. Rubin, themselves, as I hope my book will do on a very respectively. modest scale. Though my focus has been on policy, it seems to me that investors and busi- ness people also need to be fully cognizant of these risks and need to try to find the right bal-

1. Robert E. Rubin (Citigroup, Inc.) 2. William T. Golden (New York, New York) and Andreas Acrivos (City College of the City Uni- versity of New York) 3. Harriet Zuckerman (Andrew W. Mellon Founda- tion), John Noble Wilford (New York Times), and Executive Officer Leslie C. Berlowitz 4. Jerome Bruner (NYU School of Law), David Alan Hamburg (Cornell University), Fritz Stern (Colum- bia University), and Helene Kaplan (Skadden, Arps, Slate, Meagher & Flom)

1 2

3 4

Bulletin Winter 2004 11 The S. T. Lee Lecture in the Humanities Joyce, Leavis, and the Revolution of the Word Denis Donoghue Introduction by Patricia Meyer Spacks

This presentation, the inaugural S. T. Lee Lecture in the Humanities, was given at the 1869th Stated Meeting and 223rd Annual Meeting, held at the House of the Academy on May 14, 2003.

Denis Donoghue, a Fellow of the American Academy he holds the Henry James Chair of English and erything he says, generally, is wonderful. He’s since 1983, is University Professor and Henry James American Letters. He has written over twenty always worth listening to. He has assumed Chair of English and American Letters at New York books, including Words Alone: The Poet T. S. some unpopular positions in recent critical University. Eliot, Adam’s Curse, Reflections on Religion and wars, but he defends his positions with such Literature, and The Practice of Reading, for which grace and intelligence that it’s almost impossi- Patricia Meyer Spacks is President of the Academy he received the Robert Penn Warren/Cleanth ble to disagree with him. and Edgar F. Shannon Professor of English at the Brooks Award for Distinguished Scholarship. University of Virginia. She has been a Fellow of the As I mentioned earlier, Denis is one of the His most recent book, Speaking of Beauty, has American Academy since 1994. Academy’s most active members. He has been just been issued by Yale University Press and a Fellow since 1983 and serves as the Academy’s was previewed in the Fall 2002 issue of Dædalus. representative on the board of the National No mere list of books suffices to suggest the Humanities Center. He is also the chair of Patricia Meyer Spacks range or the depth of Denis Donoghue’s ac- the Nominating Committee and cochair of complishment. He appears to have read every- the Academy’s Initiative on Humanities and thing, to know everything, and to have some- Culture. Denis Donoghue is a dear friend and a dedi- thing to say about everything. What’s more, Next month Queen’s University, Belfast, will cated member of this Academy. He is also one he says it with unfailing wit, elegance, and pre- hold an international symposium in his honor. of the foremost literary critics currently writ- cision. As you probably know already, Denis Tonight we are honored and delighted to have ing in the English language. Denis is a Univer- is Irish, which gives him an unfair advantage: Denis Donoghue with us to present the first sity Professor at New York University, where everything he says sounds wonderful. But ev- S. T. Lee Lecture in the Humanities. 12 Bulletin Winter 2004 Denis Donoghue first gentleman: It is high talk, but Shakespeare’s first audiences I do not think probably took it in their stride. The style is for- So fair an outward and such stuff within mulaic, a standard version of hyperbole with Endows a man but he. a few local encrustations. A common member I would like to raise two related questions second gentleman of the audience was unlikely to ask himself the about literary criticism. First, does it make : You speak him far. question an adept of conceits would linger sense to invoke, as a critical consideration, the on: precisely how the shrine of Venus could “spirit” of a language–the English language, first gentleman: be lamed, or why Minerva is called “straight- for instance, or the American language, or I do extend him, sir, within himself, pight.” In such passages, according to Jolas, Spanish, French, or any other? If it does, is this Crush him together rather than unfold Shakespeare “obviously embarked on new spirit to be construed essentially or historical- His measure duly. 2 word sensations before reaching that haven ly–that is, does it float free of its conditions, or is it found only among those conditions? The verbal murmuring from “fair” to “far” to Second, is it pertinent for a critic to maintain, “extend” is hardly worth the labor. As Frank Does it make sense to invoke, literary evaluation being in question, that a Kermode says in Shakespeare’s Language, “The particular work of literature does or does not struggle with the idea that in straining to praise as a critical consideration, acknowledge the spirit of the language in him the Gentleman has managed to diminish which it is written? Does this matter? I’ll refer rather than to exaggerate Posthumus’s virtues the “spirit” of a language– to two occasions on which a critic apparently seems to be simply a waste of energy–evidence, assumed that there is indeed a spirit of the perhaps, that there was a nervous excess of the English language, for English language; that it has certain qualities, energy to be wasted.” 3 It’s not clear whether instance, or the American socially and historically acquired; and that the Kermode means a nervous excess of energy in work in question is defective for having trans- the Gentleman or in the play at large–an ex- language, or Spanish, gressed that spirit. cess that might have wasted itself in any char- acter but happens to start the wasting with the French, or any other? In September 1933 F. R. Leavis published in First Gentleman. In his chapter on Macbeth, Scrutiny a review of several items from Joyce’s Kermode refers again to “an excess of energy,” of peacefulness mirrored in the final benedic- workshop and its vicinity: Anna Livia Plurabelle, this time on Shakespeare’s part, resulting in tion speech from the latter play [Cymbeline]” fourteen issues of the journal transition (pub- verse “that sometimes makes so much trouble (“Revolution,” 87). But Jolas didn’t recognize lished by Eugene and Maria Jolas), Haveth Chil- for itself,” complicating what might well have that Shakespeare provided something for ev- ders Everywhere, Two Tales of Shem and Shaun, been simple (207). Jolas didn’t comment on erybody and gave the groundlings enough to Eugene Jolas’s Language of Night, and Our Exag- the First Gentleman’s lines, but presumably get the drift of what was going on. Cultivated mination Round His Factification for Incamination he quoted them to show that Shakespeare, like members of the audience got, in addition, more of Work in Progress, ascribed to “Samuel Beckett Joyce in Work in Progress, was willing to exceed than enough verbal subtlety to stretch their and Others.” Leavis admired Ulysses–or at the strict requirements of narration and des- minds. The king himself is irritated with Jach- least parts of it, notably the “Proteus” chapter, cription and to give the language unlimited imo’s speech, but not because he can’t keep in which Stephen Dedalus walks along Sandy- freedom. In one of the passages that Jolas quot- up with its intricacies. “I stand on fire,” he says mount Strand–but he had nothing warm to ed from the fifth act, Jachimo tells Cymbeline to Jachimo; “Come to the matter” (Cymbeline, say of Work in Progress, and he rejected the argu- about Posthumus ments in its favor put forward in the Exagmina- 5.5.169–70). It is hard to see why Jolas invoked tion. He was particularly exasperated by Jolas’s . . . sitting sadly, this speech to endorse Joyce’s procedures in contribution to that book–“The Revolution Hearing us praise our loves of Italy Work in Progress, unless he thought that any of Language and James Joyce”–and by his For beauty that made barren the swell’d instance of the ornate style in Shakespeare boast claim that “in developing his medium to the would help to make his case. Leavis rejected Of him that best could speak, for feature, the comparison: fullest, Mr. Joyce is after all doing only what laming Shakespeare has done in his later plays, such The shrine of Venus, or straight-pight Mr. Joyce’s liberties with English are essen- 1 as The Winter’s Tale and Cymbeline.” To en- Minerva, tially unlike Shakespeare’s. Shakespeare’s force that claim, Jolas quoted three short pas- Postures beyond brief nature, for condition, were not the product of a desire to “develop sages from the first act of Cymbeline and three A shop of all the qualities that man his medium to the fullest,” but of a pressure from the fifth. From the first, he quoted a few Loves woman for, besides that hook of of something to be conveyed. One insists, it lines of conversation between “two Gentle- wiving, can hardly be insisted too much, that the men,” in which one of them says that while Fairness which strikes the eye. study of a Shakespeare play must start with the king is distressed by his daughter’s mar- (Cymbeline, 5.5.160–68) the words; but it was not there that Shake- riage, she has in fact chosen an incomparable speare–the great Shakespeare–started: the words matter because they lead down to man: what they came from. He was in the early 2 Cymbeline, 1.1.22–27, in The Complete Works of wanton period, it is true, an amateur of ver- Shakespeare, ed. Hardin Craig and David Beving- bal fancies and ingenuities, but in the mature 1 Eugene Jolas, “The Revolution of Language and ton (Glenview, IL: Scott, Foresman, 1973), 1182. plays, and especially in the late plays stressed James Joyce,” in Our Exagmination Round His Fact- above, it is the burden to be delivered, the ification for Incamination of Work in Progress (Lon- 3 Frank Kermode, Shakespeare’s Language (New precise and urgent command from within, don: Faber & Faber, 2nd impression, 1961), 86–87. York: Farrar, Straus, & Giroux, 2000), 265. that determines expression–tyrannically.

Bulletin Winter 2004 13 That is Shakespeare’s greatness: the com- In another essay, entitled “The Hinterland of plete subjection–subjugation–of the medi- What comes first in a great Thought,” Harding showed that certain pas- um to the uncompromising, complex and writer is a creative compul- sages in Shakespeare–notably the “Pity, like delicate need that uses it. Those miraculous a naked new-born babe” passage in Macbeth– intricacies of expression could have come reveal “not disorder but a complex ordering only to one whose medium was for him sion–silent, insistent, irre- of attitude and belief achieved a stage earlier strictly a medium; an object of interest only as something that, under the creative com- futable. The words come than discursive statement” (182). The differ- pulsion, identified itself with what insisted ence between Harding’s theory and Leavis’s is on being expressed: the linguistic audacities later, though in a writer of not immense, but it is a difference that issues are derivative. 4 in Leavis’s rejection of Work in Progress. Leavis Shakespearean power not used his theory of creative sequence–the com- Joyce’s style in Work in Progress seemed to Lea- pulsion first, then the words–to make a com- vis to have taken a wrong turn. The interest much later. prehensive distinction between Shakespeare’s in words and their promiscuous relations evi- methods and Joyce’s. Harding’s theory would of expression in words alike and different: dently came first: more and more possibilities make it more difficult to enforce the distinc- surcease, success. These perceptions could be of stratification and complication then pro- tion, and might make it impossible, the tem- claimed to have come, ultimately, from Mac- posed themselves. The organization that Joyce poral gap between feeling and words being in beth’s imagined inner life–but ultimately is achieved in Work in Progress, according to Lea- his version nearly closed. An adequate account a long way down. It is enough that the whole vis, was “external and mechanical.” To justify of the difference would bring in William Emp- speech is convincing as Macbeth’s. such a procedure, Joyce would have had to have son’s meditations on ambiguity and on vari- “a commanding theme, animated by some I’ve said that the words come later, though in a ous examples of complex feelings expressed impulsion from the inner life capable of main- writer of Shakespearean power not much later. by their not being entirely or discursively spec- taining a high pressure.” He had a sufficient The critic and psychologist D. W. Harding ified. theme in Ulysses and the earlier books, where maintained that what distinguishes a creative At this point in Leavis’s review, it becomes “the substance is clearly the author’s personal writer from other people is that the writer clear that he was not merely rejecting Jolas’s history and the pressure immediately personal brings language to bear upon expression at a comparison of the later Joyce with the later urgency.” The historical particularity in those remarkably early stage in the cognitive pro- Shakespeare; he was making a far larger criti- books, Leavis said, “is explicit enough and it is cess. Ordinary people have feelings and look cal and cultural case. He started with the con- hardly impertinent to say that Ulysses is clearly about for ways of expressing them, searching ditions that made Shakespeare possible: a catharsis.” But Leavis found no such theme patiently (or not) among the words at hand, in Work in Progress. If one asks, he said, “what but creative writers bring the medium–the He represents, of course, the power of the controls the interest in technique, the preoc- available words, grammars, and syntaxes–to Renaissance. But the power of the Renais- cupation with the means of expression, in bear upon the expressive need at the earliest sance could never so have manifested itself the Work in Progress, the answer is a reference possible moment in its demand. In Experience in English if English had not already been to Vico; that is, to a philosophical theory.” into Words, Harding made the case most explic- there–a language vigorous enough to re- (“Joyce,” 195–196) itly in an essay on the poems of Isaac Rosen- spond to the new influx, ferment and liter- berg: ary efflorescence, and, in so doing, not lose, Leavis took for granted, in that review as else- but strengthen its essential character. The where, that there is a before-and-after in ex- Usually when we speak of finding words to dependence of the theatre on both Court pression. What comes first in a great writer is a express a thought, we seem to mean that we and populace ensured that Shakespeare creative compulsion–silent, insistent, irrefut- have the thought rather close to formulation should use his “linguistic genius”–he in- able. The words come later, though in a writer and use it to measure the adequacy of any carnated the genius of the language–to the of Shakespearean power not much later. The possible phrasing that occurs to us, treating utmost. And what this position of advantage apparent immediacy of the expression testifies words as servants of the idea. “Clothing a represents in particular form is the general to the force of the “impulsion from the inner thought in language,” whatever it means advantage he enjoyed in belonging to a gen- psychologically, seems a fair metaphorical uinely national culture, to a community in life” that achieved its form in those words. Lea- description of much speaking and writing. which it was possible for the theatre to ap- vis’s assumption of the necessary sequence of Of Rosenberg’s work it would be mislead- peal to the cultivated and the populace at the feelings and words seems reasonable, but it ing. He–like many poets in some degree, same time. (“Joyce,” 199) is not decisive. The inner life is not the only one supposes–brought language to bear on source. Writers often discover perceptions in the incipient thought at an earlier stage of Such a culture, such a community, in Leavis’s the transactions of one word, image, or figure its development. Instead of the emerging view, no longer existed. “The strength of En- with another–perceptions prompted by some- idea being racked slightly so as to fit a more glish,” he claimed, “belongs to the very spirit thing as fortuitous as an acoustic similarity. familiar approximation of itself, and words of the language–the spirit that was formed Macbeth’s “If th’ assassination / Could tram- found for that, Rosenberg let it manipulate when the English people who formed it was mel up the consequence, and catch / With words almost from the beginning, often predominantly rural.” When England was a his surcease, success” may have come from his without insisting on the controls of logic configuration of villages and parishes, the peo- and intelligibility. 5 inner life, but it is more probable that it came ple lived by mutualities of recognition (it was from Shakespeare’s feeling for the latencies Leavis’s theme, and L. C. Knights’s) that did not, as a social norm, survive the Industrial 4 F. R. Leavis, “Joyce and ‘The Revolution of the 5 D. W. Harding, Experience into Words (New Revolution. Dickens is an equivocal figure in Word,’” Scrutiny 2 (2) (September 1933): 194. York: Horizon, 1964), 99. this context: Dombey and Son finds both good

14 Bulletin Winter 2004 and ill in the new railways. But “the modern seemed to be a desperate reaching out for suburban world,” as Leavis called it, testifies stratagems. The spirit of the English to an order that is gone, “and there are no signs In the same number of Scrutiny in which the language–the genius of of its replacement by another.” He continued, review of Joyce appeared, there also appeared “The possibility of one that should offer a like Leavis’s essay on Milton’s verse–an essay that it–is the value to which richness of life, of emotional, mental and bod- appealed even more explicitly to the spirit or ily life in association, is hardly even imagina- genius of the English language as a decisive Leavis appealed in repudi- ble. . . . If the English people had always been critical consideration. Leavis made appropriate what they are now there would have been no ating Work in Progress. acknowledgment to T. S. Eliot and John Mid- Shakespeare’s English and no comparable dleton Murry, and might well have thanked instrument” (222). Leavis’s conclusion was Leavis regarded that passage as exhibiting “the Ezra Pound; these writers preceded him in the rueful but not entirely dispirited: momentary predominance in Milton of Shake- attempted dislodgment of Milton. His own speare.” The verse, he said, is “richer, subtler At any rate, we still have Shakespeare’s En- contribution to that end was his insistence and more sensitive than anything in Paradise glish: there is indeed reason in setting great that Paradise Lost is for the most part charac- Lost, Paradise Regained or Samson Agonistes.” store by the “word”–if not in the revolu- terized by “the routine gesture, the heavy fall, More specifically, “the texture of actual sounds, tionary hopes of Mr. Jolas and his friends. of the verse . . . the foreseen thud that comes the run of vowels and consonants, with the With resources of expression that would not so inevitably, and, at last irresistibly.” 6 Leavis have existed if Shakespeare’s England had variety of action and effort, rich in subtle ana- quoted a passage from Book III and another not been very different from his own, Gerard logical suggestion, demanded in pronouncing Manley Hopkins wrote major poetry in the from Book VI to enforce his judgment. But he them, plays an essential part, though this is not Victorian Age. We have poets in our own also quoted, for praise and grateful contrast, a to be analysed in abstraction from the mean- day, and James Joyce wrote Ulysses. For how passage from Comus’s temptation of the Lady: ing. The total effect is as if words as words long a cultural tradition can be perpetuated Wherefore did nature pour her bounties withdrew themselves from the focus of our in this way one wonders with painful ten- forth attention and we were directly aware of a tis- sion. Language, kept alive and rejuvenated With such a full and unwithdrawing hand, sue of feelings and perceptions.” (127–128) by literature, is certainly an essential means Covering the earth with odors, fruits, and of continuity and transition–to what? (201) Colin MacCabe has interpreted this passage as flocks, Thronging the seas with spawn innumerable, indicating Leavis’s “distrust of words which in Leavis felt that he must at least put the ques- their materiality prevent the experience of the tion forward and give the necessary evidence. But all to please and sate the curious taste? And set to work millions of spinning worms author (life) shining through.” The passage, The spirit of the English language–the genius That in their green shops weave the smooth- he claims, shows in Leavis the opposition be- of it–is the value to which Leavis appealed in hair’d silk tween the supposed truth of the voice and the 7 repudiating Work in Progress. Shakespeare is To deck her sons; and that no corner might alleged falsity of writing. There are sentences supremely its embodiment, and proof that the Be vacant of her plenty, in her own loins in Leavis’s essay that justify this interpreta- She hutched th’ all worshipped ore and pre- language available to him was strong enough tion. Regarding the passage he quoted from cious gems not only to survive the continental immigra- Book VI of Paradise Lost, Leavis said, “Milton To store her children with. If all the world seems here to be focusing rather upon words tions but also to thrive on them. If Jolas had Should in a pet of temperance feed on pulse, than upon perceptions, sensations or things,” not offered the challenge of a comparison of Drink the clear stream, and nothing wear Joyce and Shakespeare, I don’t think Leavis but frieze, exhibiting “a feeling for words rather than a would have risen to the occasion in that way. Th’ all-giver would be unthanked, would be capacity for feeling through words.” Further, Jolas seemed to be claiming not that Joyce was unpraised, “the extreme and consistent remoteness of as great as Shakespeare but that Joyce’s method Not half his riches known, and yet despised, Milton’s medium from any English that was in Work in Progress was comparable to Shake- And we should serve him as a grudging mas- ever spoken is an immediately relevant con- speare’s in the last plays, and just as valid. Lea- ter, sideration. It became, of course, habitual to vis, in reply, insisted that the spirit of the En- As a penurious niggard of his wealth, him; but habituation could not sensitize a And live like nature’s bastards, not her sons, glish language necessarily took the form of medium so cut off from speech–speech that Who would be quite surcharged with her Shakespeare’s mature plays and could not have belongs to the emotional and sensory texture own weight, of actual living and is in resonance with the been adequately fulfilled by any other mani- And strangled with her waste fertility; nervous system; it could only confirm an im- festation. In a sarcastic sentence, he brushed Th’ earth cumbered, and the winged air aside two linguistic ventures that seemed to be darked with plumes, poverishment of sensibility.” (129–130) seriously on offer in 1933: “The ‘international- The herds would over-multitude their lords, It is also true, in both the essay on Milton and ization of language’ acclaimed by Joyce’s apos- The sea o’er-fraught would swell, and th’un- the review of Joyce, that Leavis appealed to a sought diamonds tles is a complementary phenomenon to Basic time in English culture when speech was “a English; indeed, we note with a surprised and Would so emblaze the forehead of the deep, And so bestud with stars, that they below popularly cultivated art,” when people talked pleased sense of fitness that Mr. C. K. Ogden “instead of reading or listening to the wire- has shown an active interest in the Work in Would grow inured to light, and come at last To gaze upon the sun with shameless brows. less” (“Joyce,” 200). But MacCabe doesn’t re- Progress” (198). Each of these inventions, Lea- (lines 710–736, quoted in vis implied, was mechanical, a mere device, “Milton’s Verse,” 126–127) lacking roots in a national culture. Each could 7 Colin MacCabe, James Joyce and the Revolution of be proposed only in default of the necessary 6 F. R. Leavis, “Milton’s Verse,” Scrutiny 2 (2) the Word (London: Palgrave Macmillan, 2nd ed., community of values and at a time when there (September 1933): 124. 2003), 78–79.

Bulletin Winter 2004 15 mark that Leavis’s insistence on the creative Flock on Ister Bancke.” When the twenty- force of English speech and English idiom was You could also appeal to the three stanzas are over, Sidney tells us that “Ac- propelled by his conviction that the spirit or spirit of a language by con- cording to the Nature of dyvers Eares, dyvers genius of the English language was there to be Judgmentes streight followed, some praysing appealed to and that he knew what it was. Lea- sidering what it might have his voice, others the wordes, Fitt, to frame a vis did not anticipate Jacques Derrida’s invidi- Pastorall style, others the straungenes of the ous contrast between the axioms of speech and been rather than what it Tale, and scanning what hee should meane of writing. He did not advert to logocentrism, by yt.” And one listener, old Geron, accuses nor did he question the privileging of voice turned out to be. Philisides of bad taste in telling a tale of “hee with its aura of personal presence. Milton was knewe not what Beastes at suche a Banquett culpable, in Leavis’s view, because the grand Joyce in a way compatible with Colin Mac- when rather some Songe of Love or matter for style he developed “renounced the English lan- Cabe’s interpretation, but without recourse Joyfull melody was to bee broughte forthe.”8 guage, and with that, inevitably, Milton being to a Derridean emphasis. You will recall that That sequence, or something like it, is implied an Englishman, a great deal else” (“Milton’s Leavis, praising the passage from Comus, said, by the kind of writing and reading that Leavis Verse,” 130). Milton latinized, not only by writ- “The total effect is as if words as words with- approved. It follows that the scandal of Milton ing in Latin but also by trying to turn English drew themselves from the focus of our atten- and Joyce, in Leavis’s view, is that in their later into Latin, cultivating “a callousness to the tion and we were directly aware of a tissue of work they resorted to uses of words that would intrinsic nature of English.” Shakespeare su- feelings and perceptions” (128). I would inter- not withdraw. Milton’s words would not dis- premely incarnated the genius of the English pret that sentence as saying more generally appear–as speech does and should–into the language. So, too, on a different scale, did that words as words, in any work of literature, silence that surrounds them. That is what his Donne. Quoting a few lines from Donne’s should withdraw themselves–or should at latinizing allegedly comes to. Joyce’s words in third satire– least seem to do so–and disappear among the feelings and perceptions they have produced. Work in Progress and, later, in Finnegans Wake are . . . On a huge hill, That is the proper destiny of words–to die devised in such forms that they cannot with- Cragged, and steep, Truth stands, and he into the further human life they have created. draw from the context they enforce. There is that will It may be wise not to call this further life “pres- nowhere for them to go. They have to remain Reach her, about must, and about must go; ence,” lest that word enforce a stronger onto- on the page in the graphic state of what Leavis And what the hill’s suddenness resists, win called “words as words.” No wonder so many so; logical claim than we need. of them defeat the attention of the elocution- Yet strive so, that before age, death’s twi- Leavis’s assumptions appear to entail such a se- ist and can be read only in the sense of being light, quence as this one. Since the invention of mov- Thy soul rest, for none can work in that looked at. able type, we start with graphic signs, words night . . . on a page. (Manuscript is another question.) Even in passages that reward reading aloud, we –Leavis commented, “This is the Shakespear- The reader construes these as signs of some- are often left wondering what the pleasure of ean use of English; one might say that it is the one’s speech and takes for granted voice, artic- doing so has entailed, as in this little passage English use–the use, in the essential spirit of ulation, and audibility. Inevitably, each event from Jaun’s sermon to a group of girls: “I’ve a the language, of its characteristic resources” of the speech is displaced by the next, while a hopesome’s choice if I chouse of all the sinkts (133). He then quoted the lines in Milton’s tissue of feelings and perceptions is forming in in the colander. From the common for igni- “Lycidas” about the “stormy Hebrides”: the reader’s or the listener’s mind; and so on tious Purpalume to the proper of Francisco until the end of the speech, when every word Utramare, last of scorchers, third of snows, in For so to interpose a little ease, has disappeared into silence. The best analo- terrorgammons howdydos.” 9 It is possible to Let our frail thoughts dally with false sur- make sense of this, as Fritz Senn has done, by mise. gies for this process are performances of music arranging a loose assemblage of names in the Ay me! Whilst thee the shores, and sound- and dance. At the end, nothing remains but the ing Seas silence in which the experience of the work vicinities of St. Ignatius Loyola and St. Francis 10 Wash far away, where ere thy bones are has been, one hopes, resolved. The work can Xavier. But even if “in terrorgammons how- hurld, be recovered now only by having the perform- dydos” may be derived from a moment in the Whether beyond the stormy Hebrides, ance repeated or a new interpretation disclosed. Litany of the Saints–te rogamus, audi nos–the Where thou perhaps under the whelming Partial recovery is possible by an act of one’s main attribute of Joyce’s locution is its refusal tide memory. I do not need to read again Yeats’s to withdraw either into the litany or into the Visit’st the bottom of the monstrous “The Folly of Being Comforted” to recall 8 Sir Philip Sidney, The Countess of Pembroke’s world . . . “The fire that stirs about her, when she stirs, / Arcadia, ed. Albert Feuillerat (Cambridge: Cam- Leavis maintained that while the words in Burns but more clearly,” or Eliot’s “La Figlia bridge University Press, 1926), 242. My attention “Lycidas” “are doing so much less work than che Piange” to recall “Sometimes these cogita- was drawn to this passage by Lorna Hutson, “An in Donne, they seem to value themselves more tions still amaze / The troubled midnight and Earlier Perspective,” Times Literary Supplement, 30 highly–they seem, comparatively, to be occu- the noon’s repose.” In that sense, not all of the May 2003, 4. pied with valuing themselves rather than with words have disappeared into silence. And in every act of reading or listening there are dif- 9 James Joyce, Finnegans Wake (New York: Viking, doing anything” (133). 1939), 432–433. ferences of response. Sir Philip Sidney allows If we go back to an early quotation from Lea- for these differences when he has Philisides, 10 Fritz Senn, Joyce’s Dislocutions: Essays on Read- vis’s essay on Milton’s verse, we may be able in the third book of The Countess of Pembroke’s ing as Translation, ed. John Paul Riquelme (Balti- to connect his observations on Milton and on Arcadia, sing one of his songs, “As I my Little more: Johns Hopkins University Press, 1984), 90–94. 16 Bulletin Winter 2004 feelings and perceptions that the litany ex- Text Society in 1864 activated the question of the spirit of the American language. In his es- presses. “The sinkts in the colander” may be English, its rise and perhaps its fall. Hopkins say “Words in the Dark,” he maintained that deduced from “the saints in the calendar,” but imagined a better English having issued from the English language received its definitive it is hard to be assured that the deduction con- Anglo-Saxon, a modern language that would form and tone from its service to the Elizabe- stitutes a new perception. not have been amenable, as Shakespeare’s En- than theater–an institution in which words glish was, to influxes from Latin, Italian, and were required to direct one’s imagination away French. He sympathized with Barnes (whose from the penury of the stage and its appear- It may be thought that Leavis’s appeal to the Outline of English Speech-Craft was published in ances. “There are potentialities in Chaucer,” spirit of the language is eccentric, but he was 1878) and thought his project admirable except Kenner said, “that have never been developed not alone in making it. George Eliot, in an for the certainty that it must fail. As he wrote essay on the natural history of German life, to Robert Bridges on November 26, 1882: The spirit of the language glanced at the project of constructing a univer- Talking of chronologically impossible and sal language: long words the Rev. Wm. Barnes, good soul, was not only an English Suppose, then, that the effort which has been of Dorset-dialect poems (in which there is again and again made to construct a univer- more true poetry than in Burns; I do not say consideration. sal language on a rational basis has at length of course vigour or passion or humour or a succeeded, and that you have a language lot of things, but the soul of poetry, which I which has no uncertainty, no whims of idi- believe few Scotchmen have got) has pub- since, chiefly because the English drama had om, no cumbrous forms, no fitful shimmer lished a “Speech craft of English Speech” = no use for them, and brought modern English of many-hued significance, no hoary archa- English Grammar, written in an unknown to a working maturity without them.” The in- isms “familiar with forgotten years”–a pat- tongue, a sort of modern Anglosaxon, beyond cantation of Marlowe’s writing for the stage ent deodorized and non-resonant language, all that Furnival in his wildest Forewords encouraged the audience not to examine what which effects the purpose of communication ever dreamed. He did not see the utter hope- they could see but to “dream away from the lessness of the thing. It makes one weep to as perfectly as algebraic signs. 11 visible.” They were to imagine Helen of Troy, think what English might have been; for in not by looking at the painted boy who crossed This supposed language would be fine for sci- spite of all that Shakspere and Milton have the stage, but by letting their minds inhabit for ence, George Eliot conceded, but not other- done with the compound I cannot doubt the duration of the words the evening air and wise for life, “which is a great deal more than that no beauty in a language can make up for “the beauty of a thousand stars.” The sono- science.” There is no substitute for historical want of purity. In fact I am learning Anglo- saxon and it is a vastly superior thing to what rousness of Donne’s “A bracelet of bright hair language: we have now. But the madness of an almost about the bone” has the theater in its ears, even With the anomalies and inconveniences unknown man trying to do what the three though the line of verse was not written to be of historical language, you will have parted estates of the realm together could never ac- performed in that space. But the spirit of the with its music and its passion, with its vital complish! He calls degrees of comparison American language has no theater to escape pitches of suchness: we ought to call them qualities as an expression of individual char- from, no words to transcend the dark; it re- so, but alas! 12 acter, with its subtle capabilities of wit, with ceived its character from eighteenth-century everything that gives it power over the imag- necessities of pamphlet and sermon. It was ination. . . . The sensory and motor nerves In much the same tones, Ezra Pound imagined expected to acknowledge visible things and that run in the same sheath are scarcely what a better thing the English language would bound together by a more necessary and be if Shakespeare and the Elizabethan poets to help in administering them. Franklin, not delicate union than that which binds men’s had opened their ears to Cavalcanti rather than Shakespeare, dominated its modes. There affections, imagination, wit, and humour to Petrarch. was no place for “majestic imprecision and with the subtle ramifications of historical incantation.” Kenner offered this distinction language. (225) The spirit of the language was not only an En- between the spirit of English and the spirit of glish consideration. In 1899 Remy de Gour- American in the hope of recommending to En- You could also appeal to the spirit of a language mont published Esthétique de la langue française, glish readers the poetry of Ezra Pound, H. D. by considering what it might have been rather a tribute to the spirit of the French language (Hilda Doolittle), William Carlos Williams, than what it turned out to be. Gerard Manley and a plea that it should be kept up. There con- Marianne Moore, and Louis Zukofsky–poets Hopkins was in this sense a linguistic and cul- tinue to be such appeals. In Required Writing exempt from the Shakespearean echo and tural nationalist, sympathetic to the aims di- and the New Oxford Book of Modern Verse, Philip therefore free to make their words accompany versely represented by William Barnes, George Larkin celebrated Hardy as incomparably the the trajectory of things seen. They were also P. Marsh, F. J. Furnivall, E. A. Freeman, and greatest twentieth-century poet in English–a free to practice not just imagism but transla- R. C. Trench–grammarians and linguists who tribute that could only have arisen from his tion as well–to isolate “the poetic effects that thought that English had taken a wrong turn sense of the genius of the language as Hardy- are not local and parochial, concocted out of at the Renaissance and had thwarted its genius esque and his conviction that the modernism the accidental sounds and colours of the lan- by welcoming indiscriminate continental us- of Pound and Eliot was alien to that genius and guage in which they are conceived.” 13 English ages (cf. Austin Warren, Rage for Order: Essays therefore an aberration. readers with Shakespeare in their ears should in Criticism [University of Chicago Press, 1948], 61–63). The founding of the Early English Hugh Kenner also proposed a distinction be- tween the spirit of the English language and 13 Hugh Kenner, “Words in the Dark,” in E. V. 11 George Eliot, “Natural History of German Rieu, ed., Essays by Divers Hands: Being the Trans- Life: Riehl,” in The Writings of George Eliot: Essays 12 The Letters of Gerard Manley Hopkins to Robert actions of the Royal Society of Literature, new series, and Leaves from a Note-Book (Boston: Houghton Bridges, ed. Claude Colleer Abbott (London: Ox- vol. 29 (London: Oxford University Press, 1958), Mifflin, 1909), 225. ford University Press, 1935), 162–163. 122.

Bulletin Winter 2004 17 not expect to find in modern American objec- nia, centuries, generations, and decades–the change is a development which abandons tivist poetry the incantations and reverbera- twenties, the sixties–as if those times could nothing en route, which does not superannuate tions of “words in the dark.” Kenner’s further be delineated. They seem to feel no misgiving either Shakespeare, or Homer, or the rock implication was that American writers who in attributing to such periods a zeitgeist to drawing of the Magdalenian draughtsmen.” 14 did not attend to the spirit of the American lan- which various adjectives may be appended. Pound’s understanding of tradition was predi- guage–Wallace Stevens, notably, and William Personification is as rampant in these activi- cated on a still larger set of recognitions: select- Faulkner–did not know what they were doing ties as in Pope’s Dunciad. As soon as you argue, ed acts in the cultures of Italy, China, Greece, and lost themselves in pastiches and mimicries. say, that English has certain qualities and that and America. But neither Eliot nor Pound had French has other qualities–an argument that any aspiration toward the “internationaliza- Conrad was not alone in making–you can I find no theoretical fault in tion of language” in the sense of Joyce’s Work hardly avoid making further distinctions, as in Progress and the journal transition. Eliot’s Leavis’s attempt to support if the languages distinguished were persons. “Waste Land” and “Hugh Selwyn Mauberley,” Differences between historical or national and Pound’s Cantos, are poems in historical his critical values by appeal English and the dialect of Dorset (William English, with phrases from foreign languages Barnes’s medium in many poems) can’t be ig- being called upon to acknowledge that there to the spirit or genius of the nored, nor can they be described in strictly em- are other cultures in the world. English language... pirical or statistical terms. Spirit and genius, as terms of invocation, don’t float higher above There is indeed a “story of English,” but it has the rough ground than other words regularly culminated in the proliferation of a language These are instances of critics positing a spirit used: nation, race, culture, Renaissance, Europe. throughout the world that is primarily devot- of a language and claiming that writers should ed to money and power. English is the domi- act in an observant relation to it. Leavis im- I find no theoretical fault in Leavis’s attempt nant international language of politics, war, plied that Joyce veered from such observance, to support his critical values by appeal to the finance, aviation, professional sport, and tour- perhaps because in Dublin, Paris, Trieste, and spirit or genius of the English language, if I ism. In that sense it may be regarded as a cul- Zurich he did not have an adequate national bear in mind that the device is rhetorical–de- tural remnant of the Empire–but London is culture or a community to belong to. Presum- signed to persuade–rather than probative. The no longer the Empire’s center, and Westmin- ably, he should have committed himself, as attempt becomes more controversial when ster and the bbc are not its emblems. Shake- Joseph Conrad, Henry James, and T. S. Eliot Leavis argues that the spirit of English is incar- speare as supreme embodiment of the genius did, to the particles of an English national cul- nated in Shakespeare and Donne rather than of the language has been dislodged, not by ture that still remained, and made the best of in Spenser and Milton; that it finds its life in Broadway or Hollywood but by American tele- them (though Leavis eventually came to believe the Elizabethan theater or in language that is vision news programs and talk shows in their that Eliot remained an American of divided familiar with the theater, rather than in epic relation to the residue of common life. creative loyalties and made his commitment poetry and pamphleteering; that it is at one to the spirit of English only notionally and in with speech and the idioms of actual life rather questionable faith). Conrad and James made than with graphic forms dependent on print the most of their opportunities and found a and publication; and that it has not survived What critical value, then, can we bring to a place for themselves in the great tradition of the lapse of a national culture. reading of Work in Progress and its successor, English fiction, along with Jane Austen, George Finnegans Wake, if these are scandals to Leavis Leavis’s rhetoric was persuasive in the years Eliot, and D. H. Lawrence. and alien to the genius of the English language? between the two world wars, when Eliot too Is Finnegans Wake a sport, the sole instance of presented English literature as predicated on its kind, a source of pleasure for a few profes- Shakespeare, Donne, George Herbert, and the sional readers, or a great work of English fic- an one still appeal to the spirit or genius C Jacobean dramatists. I think Leavis was also tion? Northrop Frye thought that there were of a language as a critical value bearing on this justified in correlating the power of English as four forms of prose fiction and that Finnegans new work or that? Linguists would not give an expressive and inventive medium with the Wake was an example of an irregular but not much credence to the notion; they would re- centuries in which English life was predomi- unique fifth–a form “traditionally associated gard Leavis’s appeal to the spirit of the English nantly rural. But that time is gone. If by a dis- with scriptures and sacred books, [it] treats language as a rhetorical gesture, the spirit be- tinctive modern literature we mean the trajec- life in terms of the fall and awakening of the ing merely a trope standing for art and culture. tory from Baudelaire to Eliot, that was an affair human soul and the creation and apocalypse They would also regard as foolish the effort to of cities, and the provocative emotion was the of nature.” He wrote, “The Bible is the defini- cultivate words of one quality or origin rather friction of urban life. Modern art did not arise tive example of it; the Egyptian Book of the than another. Some linguists of an older time from Dorchester or Mansfield Park but from Dead and the Icelandic Prose Edda, both of thought that particular languages might be London, Paris, New York, Dublin, Trieste, which have left deep imprints on Finnegans characterized. Otto Jespersen fancied that En- Prague, and Vienna. Eliot appealed–in what Wake, also belong to it.” 15 But this doesn’t glish and German are “masculine” and French linguists might regard as another mystifica- help in the detail of reading the Wake, even and Italian “feminine.” This seems a mystifica- tion–to a larger cultural entity than the ge- tion. It is probably more reasonable to ascribe nius of English: “[The poet] must be aware 14 T. S. Eliot, Selected Prose, ed. Frank Kermode genius or spirit to writers and to think of a lan- that the mind of Europe–the mind of his own (New York: Harcourt Brace Jovanovich, 1975), 39. guage as a medium and nothing more. But I am country–a mind which he learns in time to not entirely convinced. Social scientists and be much more important than his own private 15 Northrop Frye, Anatomy of Criticism: Four cultural historians talk boldly about millen- Essays (Princeton: Princeton University Press, mind–is a mind which changes, and that this 1957), 314.

18 Bulletin Winter 2004 though it offers a majestic context in which tastases. Kenner claims that “juxtaposed ob- the reading might be pursued. There is a spe- There is indeed a “story of jects render one another intelligible without cial problem here. I am persuaded by Fritz English,” but it has culmi- conceptual interposition,” 16 and if I knew pre- Senn that we have succeeded–or that some cisely what he means by “intelligible,” I could scholars have–in reading the Wake in particles nated in the proliferation be convinced. Jackson Pollock’s drip paintings but not as a whole: seem to dream of freeing themselves from hu- man volition, as if their paint insisted on hav- But while we can usually make an instructive of a language throughout ing only material existence (cf. T. J. Clark, Fare- show of select passages, we ought not to con- fuse the Wake’s exemplary complaisance the world that is primarily well to an Idea: Episodes from a History of Modern- with our understanding of it. When I started ism [Yale University Press, 1999], 166–167). But out, some thirty years ago, in the juvenile devoted to money and the difference between metastases and juxta- flush of those euphoric first unravelings of positions without copula is that with metas- meaning, I hoped that within some decades power. tases you try to supply a plausible copula, and we might jointly arrive at sufficient basic un- you may succeed, at least to your own satisfac- are many sources, including The Egyptian Book derstanding (at the modest level of Roland tion. You can decide, to your own satisfaction, of the Dead. There are hundreds of stories, in- McHugh’s helpful Annotations) that would why “Chrysostomos” has broken into the para- cluding one about an Irish soldier shooting at enable us to go beyond those resistant details graph. In the case of abstract paintings, there a Russian general during the Crimean War, but and to make statements of more general im- is no merit in guessing what the copula might port and validity, perhaps even in a scholarly their multiplicity ensures that none of them have been, had there been one. Sometimes in way. We obviously haven’t. (Joyce’s Dislocu- has the authority (however we measure that) Finnegans Wake the metastasis is so abrupt that tions, xi) of the Odyssey in Ulysses. Wherever we find the you think you may be dealing with a misprint, normative origin of one of Joyce’s “dislocu- It may be that the work of annotation is the as in a passage where the four masters are tions,” as Senn calls them, it does not impose necessary groundwork, the first act of reading, peering at Tristram and Iseult making love: a critical or cultural perspective: it does not and that statements of more general import do the work of Tiresias in “The Waste Land.” . . . drinking in draughts of purest air serene and validity may be made later. But the trouble These dislocations disperse the positivism of and revelling in the great outdoors, before with annotation is that the note, necessary and words in relation to their local referents, and the four of them, in the fair fine night, whilst useful as it is, reduces Joyce’s pages to their pre- they set resonances astir, but they do not exert the stars shine bright, by she light of he moon, sumably normative origins. If I know the Irish any cultural pressure on the narrative. we longed to be spoon, before her honeyold- language, I can report that “drawhure deelish” loom, the plain effect being in point of fact (Finnegans Wake, 455) means “dear sister.” But Senn’s idea of metastasis is more useful. What their being in the whole, a seatuition so the annotation stops when it has divined the he has in mind is Joyce’s way of making a sud- shocking and scandalous. 17 source. When I read “Mades of ashens when den change in a sentence or phrase, indicating The obvious allusion here is to Ed Madden’s you flirt spoil the lad but spare his shirt” (436), that something unusual is going on. His prime song of 1919: “By the light of the silvery moon / I place beside the rhyming “flirt” and “shirt” example is “Chrysostomos” on the first page I want to spoon / To my honey I’ll croon love’s the rhyme of “Maid of Athens when we part, of Ulysses. The word comes abruptly; it seems tune / Honey moon keep a-shining in June / give oh give me back my heart,” as well as the to have erupted onto the page from nowhere Your silv’ry beams will bring love dreams / saw about sparing the rod and spoiling the and to enforce a “rapid transition from one We’ll be cuddling soon / By the silvery moon.” child, but I don’t get much gratification from point of view to another” (Joyce’s Dislocutions, “By she light of he moon” looks like a mistake putting these old tunes back where they seem 139).You have to stop to ask what is happening, or a typographical joke, and instead turns out, to belong in Joyce’s page. and you wonder whether Stephen Dedalus I think, to be an invention, a metastasis. No hasn’t simply translated Buck Mulligan’s gold- There are other problems. I started reading critical force is entailed. The voyeurs, “the big capped teeth into the Greek word meaning Ulysses with the help of Eliot’s review of it, four, the four master waves of Erin” (384), “golden-mouthed.” Or maybe he is thinking especially the sentence in which he says that may be Matthew, Mark, Luke, and John, or any of St. John Chrysostomos, divine and orator. Joyce’s use of the Homeric myth “is simply a other quartet that comes to one’s mind. Noth- We are given no syntactical help in deciding way of controlling, of ordering, of giving a ing is to be gained by going back to the New what the word is doing there; we have to work shape and a significance to the immense pan- Testament. The technique of metastasis, as out something for ourselves. I compare the pro- orama of futility and anarchy which is con- Joyce manages it, is akin to a stylistic device he cedure with a phrase put in circulation many temporary history” (Selected Prose, 177). I have practiced as early as Dubliners. In Joyce’s Voices years ago by Marshall McLuhan: “juxtaposi- sometimes thought that it might be possible Kenner has described it as a deliberate discrep- tion without copula.” He was led to it by cer- to extend that sentence to illuminate Finnegans ancy between narrative and diction–or, as I tain developments in painting that culminated Wake. If it were, it would supply a critical value would prefer to say, between one diction and in abstract art, in which points of color and and perhaps take the place of Leavis’s appeal another, one diction giving place to another light are deployed in paintings that have no in- to the genius of the English language. But within the same sentence. It is like a change of tent of reference or description. Without any it wouldn’t help much. Whether we regard key within the melodic line. copulas, we have to look at each painting and Joyce’s recourse to the Odyssey in Ulysses as register its lines of force. Normative reduction reverential, casual, or both, at least Homer’s is impossible: there is nothing to which the poem is there, and it exerts on the modern 16 Hugh Kenner, The Poetry of Ezra Pound (Nor- painting can be referred; there is no landscape, folk, CT: New Directions, reprinted 1974), 39. story something of the pressure that Eliot de- no face. It is the absence of the copula that scribes. But in Finnegans Wake no single story is makes such juxtapositions comparable to me- 17 James Joyce, Finnegans Wake (New York: invoked beyond that of hce and alp. There Penguin, reprinted 1999), 385.

Bulletin Winter 2004 19 But I should not give the impression that the This is the situation of England, or even of Brit- absence (or the intangibility, which amounts idea of the genius or spirit of the English lan- ain as a “national culture,” though Leavis was to the same thing) of an enemy, Joyce’s revolu- guage has been entirely set aside in Finnegans reluctant to admit it in 1933: it is one among tion of the word is an extreme and beautiful Wake or that Leavis’s being scandalized is the other cultures and languages. The fact that En- instance of burlesque–of “the high language last event in the case. Leavis urged that a writer glish has become the dominant international of low purpose,” 19 as R. P. Blackmur called of English should acknowledge the spirit of language is not a consideration from which burlesque–and it has whatever force of dis- the language and respect it. That was sufficient Leavis would have derived much satisfaction. sent we assign to it; little enough, I think, and tradition for him. Eliot extended the idea of certainly not enough to make global institu- Still, it is hard to see Finnegans Wake as a politi- tradition and enlarged its contents, but he con- tions tremble. That is not Joyce’s fault or his cally subversive book or as the modern correl- tinued to emphasize that writers should sub- inadequacy, unless we think that a work of ative to the third book of Rabelais’s Gargantua mit themselves to the tradition and establish fiction must, to be any good, bring the house and Pantagruel. It is a ludic book, though not a themselves in a strong, devout relation to it. down. No houses will come down because of joke; at least it is more ludic than carnivalesque. But it would also be possible to respect a tradi- Finnegans Wake. It is enough that the spirit of The difference is that the carnivalesque needs tion–or at least to take it seriously–while play and dissent, a more comprehensive spirit a strong national or international culture to challenging it. M. M. Bakhtin is the critic we than that of the English or any other language, mock: there have to be laws to be obeyed, pun- think of as recommending this stance, espe- be maintained. But I don’t think of Joyce and ishments to be meted out before the mockeries cially in his writings on Rabelais and in every- Finnegans Wake in association with Rabelais, and saturnalia count. In 1939, when Work in thing he has said about carnival and carniva- Voltaire, and Swift–writers who brought Progress became Finnegans Wake, John Crowe lesque subversions of reality as officially pre- some houses down. Ransom welcomed it as a protest against the scribed. In his essay “Discourse in the Novel,” reality defined by science and positivism. It 19 R. P. Blackmur, Outsider at the Heart of Things, Bakhtin says: may still be that. Or, to bring things up to date ed. James T. Jones (Urbana: University of Illinois The resistance of a unitary, canonic lan- and to think of inserting Finnegans Wake into Press, 1989), 199. guage, of a national myth bolstered by a yet- our context rather than Joyce’s, it may count unshaken unity, is still too strong for heter- as a protest against the forces that have turned oglossia to relativize and decenter literary science, positivism, banking, brokerage, and and language consciousness. This verbal- information technology into an omnivorous ideological decentering will occur only when © 2003 by Patricia Meyer Spacks and Denis system. But when Joyce plays fast and loose a national culture loses its sealed-off and Donoghue, respectively. self-sufficient character, when it becomes with the English language, I recognize an im- conscious of itself as only one among other pulse of play short of real subversion. He lacks Photo of Dublin, O’Connell Bridge, from the cultures and languages. 18 an enemy that recognizes his existence. In the Lawrence Collection, courtesy of the National Library of Ireland. 18 M. M. Bakhtin, The Dialogic Imagination: Four Essays, trans. Caryl Emerson and Michael Hol- quist (Austin: University of Texas Press, 1981), 370.

Denis Donoghue (NYU) Orlando Patterson (Harvard University) and Evon Z. Vogt (Harvard University)

20 Bulletin Winter 2004 Tribute to Daniel P. Moynihan by Nathan Glazer

The following remarks were presented at the 1875th Stated Meeting, held in New York on November 3, 2003.

Nathan Glazer, a Fellow of the Amer- and the Ordeal of the Negro Fam- ican Academy since 1969, is Professor ily,” was decisive in supplement- Emeritus of Sociology and Education ing and clarifying his report to at Harvard University. President Johnson on the disaster overcoming the Negro family–a report that had been massively

There have been many meetings, misrepresented in the media and Photograph courtesy of Heinz Awards/Jim Harrison seminars, and events to memo- in public discussion. It described rialize the passing of Daniel P. what was happening to the Negro flict, and this at a time when nei- and elsewhere, and which result- Moynihan. He earned many dis- family and argued that the answer ther ethnicity nor ethnic conflict ed in the publication of a number tinctions, filled many important lay not in social work but in jobs were much in the center of public of important books. I should note offices, wrote many books. He and income. Moynihan’s article or academic interest. Having be- here that Corinne Schelling of the was four times senator from the in Dædalus sharpened that point. gun his political career in New York Academy staff played a key role state of New York, American am- His involvement with the Acad- City’s Democratic Party, Moyni- in bringing to fruition the publi- bassador to the United Nations, emy’s project on Negro Ameri- han of course could not be unaware cation of the books On Understand- American ambassador to India, cans led directly to his leadership of the significance of ethnicity and ing Poverty and Ethnicity: Theory domestic advisor to President of an Academy project on the prob- the power of ethnic attachments. and Experience, and in extending Nixon, professor of education lem of poverty, which was clearly But his interest was sharpened the Academy’s work on ethnicity and government at Harvard Uni- one root of the problems of Ne- when I drew him into collabora- and immigration into collabora- versity, assistant secretary of labor gro Americans. Pat Moynihan be- tion with me in the early 1960s in tive projects with scholars in other in the administrations of Presi- came the chairman of a continu- writing a book on the ethnic groups countries. dents Kennedy and Johnson, and of New York City, entitled Beyond ing Academy seminar on race and Despite Moynihan’s great and con- a key initiator and founder of the the Melting Pot (1963). It was not poverty that met regularly during tinuing interest in these issues, his Woodrow Wilson International long after that book was published 1966–1967. This seminar resulted direct involvement in such proj- Center for Scholars in Washing- that we had to take account in a in the publication in 1969 of an ects was no longer possible when ton, D.C. And this is only a partial second edition of the increasing important Academy volume, On he became senator from New York listing of the posts he held and the rancor and violence around issues Understanding Poverty, which Moy- in 1976. He had moved from writ- good work he did. of race, religion, and ethnicity. nihan edited. In introducing the er, researcher, and academic to But today we pay tribute to his long volume, Talcott Parsons, then In the wake of that book and as statesman–the word certainly fits and fruitful association with the president of the Academy, des- we saw the increasing salience of rather better than its near synonym American Academy of Arts and cribed it as “the result of the first ethnic issues in various parts of “politician,” even though Moyni- Sciences. He became a member of continuing seminar of the Acad- the world in the 1970s, Moynihan han was a master of the arts of pol- the Academy in 1966, when he was emy dealing with American do- and I decided to launch an Acad- itics, too, as indicated by his suc- a professor at Harvard, but before mestic problems.” Until then, the emy project on ethnicity, extend- cessive elections to the Senate that he had already been involved Academy’s work in public policy ing our concern from the United with ever larger majorities. in and guided important projects had concentrated on security is- States to Europe, Asia, Latin Amer- Moynihan was known for his per- of the Academy. The 1960s were sues, the control of atomic arms, ica, Africa, and the great commu- spicuity and far-sightedness in marked by the increasing salience and the like. The book was widely nist empires of Soviet Russia and drawing attention to important of the problems of race, poverty, noted, widely cited: It was an im- China. This project resulted in the issues before others had taken and urban decline and disorder, portant contribution to the under- publication of our co-edited vol- much notice of them. In the 1980s and in the analysis of all of these standing of the complex problem ume, Ethnicity: Theory and Experi- he criticized the cia’s and other Pat Moynihan was a master. He of poverty. ence, in 1975. It is still in print and government agencies’ estimates participated in Academy confer- widely cited despite the enormous Race, poverty, the family, and the of the strength of the Soviet Union. ences on the increasingly turbu- expansion of publications in that social policies that tried to deal He was no expert on Soviet Russia lent issue of the condition of Ne- field in the years since. That vol- with race and poverty were con- but he understood one thing that gro Americans in the early 1960s, ume became the first in a series of tinuing interests of Pat Moynihan the experts apparently did not: the which climaxed in the publication Academy projects on immigration, as a writer, researcher, and policy- Union of Soviet Socialist Repub- in 1965 and 1966 of two large issues ethnicity, and ethnic conflict in maker. But his interests spread be- lics was a multiethnic empire in of Dædalus on the Negro Ameri- yond these issues to the questions which the Academy cooperated can. Moynihan’s major article in raised by ethnicity and ethnic con- with scholars in France, Germany, Continued on page 35 Dædalus, “Employment, Income Bulletin Winter 2004 21 Judith Resnik

Conversations about judicial independence tend to take one of two forms. The first pro- vides generalities praising the importance of an independent judiciary and delighting in the American example, centered on Article III of the United States Constitution. To ground that aspect of the discussion, the text of Article III, Section 1 is worth revisiting. It reads:

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behav- iour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Under the provisions of Article III, life tenure and protected salaries are the markers of the independent federal judge.

The second sort of discussion about judicial independence is less celebratory and more anxious. Sparked by specific anecdotes an- chored in particular moments in time, de- baters argue that certain actions undermine judicial independence.

Examples abound. Begin with the process for appointing individuals to life-tenured judge- ships. One concern is that a president, holding the constitutional power of nomination, may

Image © Images.com/Corbis try to interfere with an independent judiciary by selecting people who are precommitted to certain worldviews or who pass specific litmus The Independence of the Federal tests. Another concern is that the Senate, constitu- Judiciary tionally obliged to provide advice and consent, Judith Resnik, Danny J. Boggs, and Howard Berman either is not living up to or is overstepping that mandate. In May of 2003, hearings in the Sen- ate focused on these very questions, as we heard complaints from one quarter claiming a “crisis” uc On May 15, 2003, the Academy held its 1870th Nelson W. Polsby ( Berkeley), and Leslie C. of vacancies and from another quarter claim- Stated Meeting in Washington, D.C. Librarian Berlowitz (American Academy). Mikva mod- ing “court packing.” of Congress James Billington welcomed Fel- erated the program. lows and their guests to the second in a series Another area of concern relates to whether Judith Resnik, a Fellow of the American Academy of meetings focusing on the relationship of Congress has provided a sufficient number of since 2001, is the Arthur Liman Professor of Law at Congress and the Court. This event is part of life-tenured judgeships and funds adequate to Yale Law School. the Academy’s project on Congress and the pay for the salaries, the staff, the facilities, the security, the jurors, the marshals, the libraries, Court. The steering committee members of Danny J. Boggs is Chief Judge in the United States and the public defenders in the federal courts. the project are: cochairs Jesse Choper (uc Court of Appeals, Sixth Circuit. Berkeley) and Robert C. Post (Yale Law School), Recently, members of the judiciary objected Linda Greenhouse (New York Times), Abner J. Howard Berman is a Democratic Representative that Congress had set their salaries too low and Mikva (University of Chicago Law School), from California in the United States Congress. that the Executive had budgeted too little for court renovations.

22 Bulletin Winter 2004 Control over jurisdiction is another arena of controversy. How many and what kinds of Chart 1: Authorized Article III Federal District Court Judgeships, Nationwide: rights ought Congress to create by vesting new Comparing 1901, 1950, and 2001 jurisdictional grants in the federal courts? What individuals ought to have access to the 1,000 federal courts, as contrasted with state courts, 900 agencies, or nothing? Are we “federalizing” 800 too many cases or too few? 700 Other questions involve losing rights that al- 600 ready exist. Congress sometimes threatens to 500 and occasionally does enact legislation limit- 400 ing access to the federal courts, a practice ob- Judgeships 300 665 jectors label “jurisdiction stripping.” Examples 200 include bills about prayers in school and abor- 100 212 70 tion rights. 0 1901 1950 2001 Congress can also constrain the remedies that © Judith Resnik federal judges can order. Current issues arous- ing discord include whether Congress should cap tort damages and whether Congress should Chart 2: Article III Authorized Judgeships: District, Circuit, and Supreme Courts: limit the power of courts to grant injunctive 1901, 1950, and 2001 relief on environmental claims. Moving from legislation pending to that enacted, in the 700 spring of 2003, Congress reduced the power of judges to make individualized decisions 600 when sentencing criminal defendants. 500 Whether judicial independence is discussed in 400 either a celebratory or an anxious mode, com- 665 300 mentators recycle themes that have long been Judgeships the focus: incursions from the Executive and 200 the Congress. The fear of overreaching from 100 212 other sectors of government stems from the 179 70 28 9 65 9 9 English experience that predated the drafting 0 of the United States Constitution. In seven- 1901 1950 2001 teenth-century England, judges’ commissions (total judgeships: 107) (total judgeships: 286) (total judgeships: 853) expired when a king’s reign ended. (The 1701 District Court Court of Appeals Supreme Court Act of Settlement marked the beginning of the independence of judges from the Crown.) © Judith Resnik

But now, more than two hundred years later, cial branch have resulted in an agenda-setting sands of federal claims. The joint venture of structural changes in the American judiciary judiciary, taking an active role in policymak- the creation of the federal judiciary as we un- require that the discussion of judicial inde- ing that undermines the rationales for judicial derstand it today came in part through a re- pendence be reframed–to take into account independence. reading of the constitutional text of Article new foes of, as well as new friends for, judicial III–rendering legal the adjudicatory authority independence. of federal judges who lack life tenure and pro- The Cooperative Expansion of tected salaries. A fast glimpse at the past one hundred years Federal Judicial Authority and of interaction between the Congress and the Personnel As Chart 1 indicates, a hundred years ago, courts demonstrates the need to return to the about 70 trial judges were dispersed across discussion of judicial independence to include Focus first on the remarkable growth of and the United States. In several states–such as narratives of cooperation as well as those of commitment to federal adjudication. Congress Maryland, Indiana, and Massachusetts–a sin- conflict. Further, we must focus on challenges and the courts, working together over a hun- gle district judge presided. Today, more than not extant centuries ago. The power of the dred years, have created a substantial, impor- 665 judgeships exist. As Chart 2 makes plain, private sector to affect judicial independence tant judicial system. Congress has repeatedly in 1901 fewer than 30 judges staffed the appel- needs to be understood, as does the growth of looked to the federal courts to enforce new late courts; today some 180 serve. lower echelon jurists who wield federal adju- rights. Congress has endowed the federal ju- dicatory power outside the parameters of Arti- The number of judges has grown, and so has diciary with significant resources. Congress cle III and are, therefore, vulnerable to incur- their jurisdiction. During the twentieth cen- and the federal judiciary have worked together sions from all quarters. Finally, we must con- tury, Congress created federal securities law, to invent whole new sets of federal judges and sider how the developments within the judi- federal environmental law, federal civil rights to empower them to decide hundreds of thou-

Bulletin Winter 2004 23 law, federal consumer law, and much more. as full-time judges in 2001). In addition, in Because of this production, we are all federal 1984, Congress created another group–bank- Structural changes in the rights holders, possessing new and important ruptcy judges, now numbering more than 330, American judiciary require rights that affect our lives in many ways–from as Chart 4 details. Magistrate and bankruptcy taxes and pensions to the water we drink and judges serve for fixed and renewable terms of the discussion of judicial in- our personal security. eight and fourteen years, respectively.

The power of the federal judiciary does not Unlike Article III judges who have life tenure dependence to be reframed come from its size and docket alone. During and protected salaries, the jobs of the statuto- to take into account new foes the second half of the twentieth century, life- ry judges could be abolished and their salaries tenured judges (constitutional judges) gained cut. But magistrate and bankruptcy judges of, as well as new friends the power to appoint magistrate and bankrupt- have courtrooms in federal courthouses, and cy judges (statutory judges), who serve for they do a good deal of the same work as life- for, judicial independence. fixed and renewable terms. Specifically, in tenured judges. For example, magistrates can 1968, the Congress created the position of fed- preside, with parties’ consent, at jury trials; Chart 5 puts all of these positions together to eral magistrate. both magistrate and bankruptcy judges have show all of the judges sitting in federal court- the power of contempt. Also, bankruptcy houses around the United States. Those with- As Chart 3 illustrates, that job was once con- judges may sit on panels to provide appellate out life tenure outnumber those with life ceived as primarily part time (with 450 part- review to decisions made by individual bank- tenure. time positions in 1971). But today it is primar- ruptcy judges. ily a full-time job (with more than 470 serving In the early part of the twentieth century, the Supreme Court was loath to permit too much devolution of the “essential attributes of judi- Chart 3: Magistrate Judgeships: 1971 and 2001 cial power.” By century’s end, however, the Court had reread Article III to enable the shift 500 of significant amounts of federal adjudicatory 450 power to non-Article III judges. Under such interpretations, yet another cohort of judges– 400 termed Administrative Law Judges (aljs) and 350 today numbering about 1,400 (as is detailed 300 in Chart 6)–make thousands of adjudicatory 471 in decisions in federal agencies. Thus, much of 250 2001 450 in 1971 federal adjudication occurs outside buildings 200 labeled federal courthouses, and hundreds of Judgeships 150 judges important to the lives of claimants do not have life tenure. 100 50 83 in 59 in A caveat is in order. The charts do not include 1971 2001 all those who do judging in federal agencies, 0 Full-Time Part-Time but show only those judges chartered under the 1946 Administrative Procedure Act (apa) © Judith Resnik and therefore protected through special selec- tion and dismissal provisions. Hundreds of others–called presiding officers, adminis- Chart 4: Authorized Bankruptcy Judgeships: 1984, 1991, and 2001 trative judges, hearing officers, or examiners 350 (constituting what Professor Paul Verkuil has called “the real hidden judiciary”)–are line 300 agency employees who decide thousands of cases but without the protections that the 250 apa provides to both aljs and disputants. Today we take for granted the purpose and pow- 200 er of the lower federal courts. We even have a 324 shorthand for it: “don’t make a federal case 150 291

Judgeships out of it.” But that phrase was not common much before the 1950s. In short, the lower fed- 100 232 eral courts as we know them today did not 50 exist a hundred years ago. Consider this enormous expansion of judicial 0 1984 1991 2001 resources and notice how much of it came about through reliance on good will among all three © Judith Resnik branches. Dozens of shared initiatives pro-

24 Bulletin Winter 2004 Return then to Article III–our emblem of Chart 5: Authorized Trial-Level Federal Judgeships in Article III Courts, judicial independence in the United States– Nationwide: 2001 and revisit its text. While popular understand- ings imagine three robust branches of govern- 1,000 Article III Dis- ment, significant separation of powers, and 900 59 3 trict Court (665) judges able to make rulings on the merits of 800 cases without fear of losing their jobs or their Bankruptcy (324) 700 resources, the constitutional text says less than 600 might be expected. 471 Magistrate: 500 Full-Time (471) Article III provides only for life tenure and in- Judgeships 400 665 dividual salary protection and does so, today, 300 Magistrate: Part-Time (59) for just a subset of our federal judges. Even for 200 324 the constitutionally protected judges, Article 100 Magistrate: Combination (3) III misses completely the idea of budgets, of 0 salary-setting independent of Congress, and of Article III District Court Life- Magistrate and Bankrupcy the institutional needs of a judiciary as a pro- Tenured Judgeships Judgeships vider of services to the millions of litigants in © Judith Resnik need of its attention. Economically, the judici- ary is dependent on Congress. Furthermore, as the judiciary has expanded, it is ever more Chart 6: Authorized Federal Judgeships, Including Article I Courts and reliant on Congress–for staff, for surrogate Administrative Law Judges, Nationwide: 2001 and subsidiary judges, indeed, for its very abil- 3,000 ity to work. Conscious of that dependence, fed- Article III eral judicial officers provide detailed explana- Court (862) tions to Congress of the judiciary’s needs and Bankruptcy and budgetary priorities. 2,000 Magistrate (857) And if we are to worry about conflict between 1,370 Article I Courts (46) Congress and those judges with life tenure, look again at the “pictures” I have provided of

Judgeships D.C. Superior 1,000 66 the federal courts and stare hard at those bar 46 Courts (66) graphs where the tallest bar represents all 862 857 ALJs (1,370) those judges who do not have life tenure.

0 No mention is made of such persons in Article Life-Tenured Article III Non-Article III (ALJs, D.C. III, but through creative interpretations of Ar- (Supreme, Appellate, District, Superior Courts, Article I ticle III, these judges today hold a good deal of Court of International Trade): Courts, Magistrate, and 862 Bankruptcy): 2,339 federal power. They exist by virtue of statute and can be decommissioned by statute. © Judith Resnik For judges who work in administrative agen- duced the current landscape, with more than in individual cases, dislikes decisions by the cies, their vulnerability to Congress was made 550 federal courthouses, more than 300,000 Supreme Court, or rejects the idea of Americans plain when, in the 1990s, Congress stopped annual civil and criminal filings and a million holding federal rights. Sometimes, Congress funding the Administrative Conference of the bankruptcy filings in the federal courts, as well or the Executive seeks to retract rights and rem- United States (acus), an institution that had as tens of thousands more in federal agencies, edies by limiting the power of federal judges, been dedicated to evaluating and supporting resulting in decisions articulating the meaning by requiring that disputants use privately spon- the administrative judiciary. Administrative of and enforcing rights under federal law. The sored dispute-resolution programs, or by per- judges are also worried about incursions from cooperative work of Congress, the courts, and mitting disputants to be heard only in special- the Executive. Agencies are now trying to the Executive has equipped this nation with ly created courts run by the president. avoid using aljs (who gain some independ- more than 4,000 judicial officers in a judicial We have many recent examples. As I mentioned, ence through the Administration Procedure hierarchy at whose top sit life-tenured Article Congress has just limited the power of judges Act) by relying instead on other employees to III judges. over sentences. In the last decade, federal leg- serve as temporary judges. Indeed, Attorney islation divested federal courts of some juris- General John Ashcroft took the position that New and Old Tensions diction over cases involving aliens and prison- he had unfettered authority to treat immigra- tion law judges (who were not apa-charted ers, and limited redress for certain kinds of alj What is the import of this manufacture of securities law violations. In the last few years, s) as ordinary employees of the Depart- judges when, instead of cooperation, we enter the president has chosen to go outside of both ment of Justice and to reassign them as he periods of conflict between the courts and Con- the federal court and the military justice sys- thought appropriate. gress? Sometimes, either Congress or the Ex- tem altogether to create new military commis- ecutive objects to decisions by individual judges sions with broad jurisdictional authority.

Bulletin Winter 2004 25 Thus, developments of the last century have As Chief Justice William Howard Taft put it, the roles of education, planning, and lobbying produced hundreds of federal judges who have each judge had “to paddle his own canoe.” about the shape, nature, and future of judging less structural insulation from actions of an and the role of federal law. Of course, judges needed to become organized. aggressive Executive and an aggressive Con- But the question is organized to do what? In These new roles leave the judiciary open to a gress. Moreover, changes during the last cen- the 1920s, Congress created an official policy- form of politicization that we have only begun tury have also produced the possibility that making body of judges, now called the Judicial to acknowledge. Insiders in the adjudicatory the judiciary itself can pose threats to judicial Conference of the United States, through which system know that the judiciary is an organiza- independence. 27 judges, with the chief justice of the Supreme tion that takes positions in Congress. Court presiding, adopt official policy positions Therefore, sophisticated repeat players (such The more the judiciary through a vote of that body. In 1939, Congress as the government, insurance companies, cor- created the Administrative Office of the United porations, and civil rights groups) now attempt takes policy positions out- States Courts, which collects data, submits to lobby the judiciary to take certain positions– budgets, and oversees the need for facilities for for example, to support a bill to take class ac- side of adjudication, the the federal court system. In 1967, the Federal tions pending in state court and federalize them. Judicial Center was established to focus on ed- harder it is for the judiciary The more the judiciary takes policy positions ucation and research. outside of adjudication, the harder it is for the to stay separate from, and In the early days, the Judicial Conference judiciary to stay separate from, and independ- independent of, a certain avoided taking positions on matters of what it ent of, a certain form of politics. termed “legislative policy,” such as whether form of politics. Congress should create new federal rights. Be- ginning in the 1950s, under Earl Warren, the Taking Up the New Challenges Judicial Conference occasionally raised ques- One question addresses the wisdom of creating I began by providing a cheerful picture of the tions about some federal jurisdictional provi- a system in which constitutional judges have tremendous and useful development of the sions but often demurred on the grounds that the power to “clone”–that is, to select the lower federal courts. I then described how a dy- such issues were matters for Congress. statutory judges who serve inside our federal namic of cooperation produced the important courts. The hundreds of magistrate and bank- Under Warren Burger’s tenure, chief justices federal judicial system that is familiar today. ruptcy judges obtain their charters (of eight began to make “state of the judiciary” speech- But I have also analyzed how the inventions of and fourteen years, respectively) from other es. Thereafter, via a “futures planning process,” the last century have created new sets of judges judges, who can reappoint them or not. Thus the Judicial Conference–the official policy arm more vulnerable than the iconic judges imag- far, a distinguished group of individuals has of the federal judiciary–approved 93 recom- ined by reading our constitutional text. I then come to play an important role, but we have mendations to Congress as part of an official raised new questions about how challenging not come to grips with two issues: whether a document, entitled the Long Range Plan for the it is to respond to the high demands for judges significant proportion of federal judges should Federal Courts, issued in 1995. be selected with little democratic input, and and about what kind of behavior is appropriate how to decide what behavior merits reappoint- Specifically, the Judicial Conference has ar- when judges use their voice not to adjudicate ment. gued for limited growth in the number of life- individual actions but rather to develop agen- tenured judges, for greater reliance on adjudi- das on social policy. Other questions relate to the role that this col- cation by judges lacking life tenure, for less I hope we live in a world in which my uncheer- lection of thousands of judges ought to take federal jurisdiction, and for a presumption ful scenarios are rare. They are not, however, in our polity. Over the past hundred years, we against creation of federal rights if enforced forbidden by constitutional text. Rather they have not only manufactured judgeships but al- in federal court. so, for the first time in history, created the pos- are dependent on culture–and that culture is, sibility for a judiciary that has the administra- For example, the Judicial Conference told Con- I think, at risk from all three branches. In my tive and technological capacity to act strategi- gress–while legislation was pending–that view, no branch is always either a hero or a vil- cally over time–not only in individual cases it should not create new rights enforceable in lain. federal courts if computers crashed in y2k, but as agenda setters and lobbyists in Congress. My hope is that we will consider how to pro- that Congress should not give veterans access The federal courts have gained a corporate mote a culture that cherishes judging, respects to life-tenured judges to challenge benefit structure that permits the judiciary to function individual judgments when rendered after de- awards, and that Congress should not vest ju- in some respects as an interest group. liberation, obliges judges to take responsibility risdiction in federal courts for challenges to for their decisions through explanation and A quick summary of the infrastructure and the health-care providers. agendas of the federal courts is necessary to publication, and constrains judges when they understanding why this transformation is rel- Moreover, both before and after the passage move outside their role as adjudicators. We evant to the issue of judicial independence. of the Violence Against Women Act, the chief must make self-conscious decisions to ensure The second chart showed some hundred life- justice raised objections to it. Subsequently, in that the federal judiciary will not become just tenured judges in 1901. Those judges had little 2000, he wrote the five-person majority opin- another agency, pushing its own worldview institutional means of talking with each other, ion in United States v. Morrison that held the civ- and agendas, and to ensure that the executive let alone to anyone else. The attorney general il rights remedy of that act unconstitutional. branch and Congress will appreciate the seri- gave Congress reports on the federal courts In short, over the last few decades, the federal ousness of purpose when individual judges try and asked Congress for the judiciary’s funds. judiciary as a corporate entity has taken on to do their best.

26 Bulletin Winter 2004 Danny J. Boggs actual talents, qualifications, and positions of nominees and the manner in which they are The independence of the treated in the confirmation process. In other judiciary remains intact words, the attacking, delaying, or defeating of n my remarks on the independence of the I nominees on the basis of their supposed ex- federal judiciary, I will try to adhere strictly to and largely unthreatened. tremism or lack of qualifications or lack of tem- the topic of judicial independence and true perament is a process that is, to paraphrase a threats to that independence, as distinguished tion–but added, “We cannot ask a man what comment once made by Justice Potter Stewart from things that may annoy the federal judici- he will do, and if we should, and he should an- in regard to the death penalty, “freakishly and ary, hinder or promote the effectiveness of the swer us, we should despise him for it.” I think wantonly imposed” in the “same way that be- federal judiciary, or advance or retard the rep- that declining to answer is indeed the proper ing struck by lightning is.” utation of one or more members of the federal answer, and I think that it will continue to be judiciary. I so limit myself because I believe Rufus Choate, 150 years ago, said that if judges the answer that nominees of both parties will that it is too easy to say that anything that in Massachusetts were to be elected, they would give. judges don’t like is a threat to their independ- be “abused by the press, abused on the stump, The history of attacks on the sitting judiciary, ence. What may be a threat to good govern- and charged ten thousand times over with be- of course, is a rich and varied one, from the at- ment or to good use of taxpayers’ money or to ing very little of a lawyer and a good deal of a tacks on Federalist judges and “midnight jus- any number of other desirable things is not knave or a boor.” Though we do not have elec- tices,” to the Senate’s initial refusal to confirm necessarily a threat to the independence of the tion of federal judges, it does sometimes seem Justice Roger B. Taney, to Teddy Roosevelt’s judiciary as contemplated in the Constitution that very little has changed in the past 150 years. attack on his own appointee, Oliver Wendell and other founding documents. Granted, certain judges nominated by the Holmes (he said he could have carved a justice current president and by past presidents have My basic theme today will be that the indepen- with a firmer backbone out of a banana), to been accused, perhaps correctly, of some meas- dence of the judiciary remains intact and large- Franklin D. Roosevelt’s efforts against “the ure of extremism. Yet throughout the years, ly unthreatened. I find my colleagues on the four horsemen” (the Supreme Court justices nominees who have been attacked as extrem- bench to be as independent as the proverbial who persisted in voting against his New Deal ists have rarely differed radically in actual qual- hog on ice. With respect to my own activities, laws), to the attacks on Earl Warren, and up to ities from those who have glided through the I know that efforts may be undertaken that ap- the present. These activities may certainly have confirmation process as moderates. pear to be an attempt to intimidate me or to threatened the digestion of the judges involved, affect my decisions in an improper way, but Indeed, looking at the broad range of persons but in what sense can we say that they affected my perception is that the effect of such activi- of my knowledge nominated and appointed their independence? ties is zero. Observing my colleagues, I have at over this same period, it seems to me that the Clearly, many such efforts are designed to times questioned their reading of a record or judges nominated to the bench by presidents change the judicial opinions of judges for rea- their logical deductions or their understand- of either party represent a fair bell curve of le- sons outside the court record or other docu- ing of constitutional history, but I have never gal attitudes and opinions–a curve whose cen- ments that judges should legitimately consult. thought that their opinions represented any- tral point approximately matches the position For example, Tony Mauro recently reported in thing other than their actual, even if at times of the publicly active lawyers who have sup- Legal Times (May 12, 2003) that a certain organ- wrongheaded, execution of their judicial duties. ported the appointing president. Although at- ization “has announced plans to demonstrate tacks may be made on nominees for being too So, what are some of the possible or proposed wherever Supreme Court justices speak in pub- far to the right or left of most Americans, that threats to judicial independence, and how lic, until the Court hands down its decision in does not represent a threat to the independence should we assess them? I will mention several the University of Michigan . . . cases” concern- of the judiciary, because nominees of both par- in this list, but I will not have time to address ing affirmative action. He quoted a representa- ties will not commit to particular positions. each of them in my ten minutes: judicial pay; tive of that organization as saying, “It won’t They will be attacked for their failure to com- delays in the nomination or confirmation of be something the justices can just push aside.” mit, and then defended, and their attackers and judges; attacks upon, or abuse of, persons nom- Well, despite that statement, I confidently ex- defenders will change sides, along with the ad- inated to the federal bench; abuse of, or attacks pect that the demonstrations will have no ef- ministration. But this would be a threat only upon, persons now holding judicial office; at- fect whatsoever on those judges. if nominees did commit to a position. Justice tendance at conferences by judges, or attempts Anthony M. Kennedy, speaking recently at the In a similar vein, during the circuit argument to limit what judges attend, read, or say; and University of Virginia, warned both parties on one of those cases, our chief judge, Boyce congressional intrusion upon judges by requir- that they should start thinking about the dan- Martin, with whom I had substantive disagree- ing reports on or by them. gers they pose to judicial independence by in- ments on the case, was confronted by a coun- With respect to the process of appointing sisting on nominees who have particular views. sel who began her argument as follows (and judges, I will not take a position on the specif- this is from the transcript): “I come before you Abraham Lincoln made what is perhaps the ics of the controversy currently embroiling with over there on the table some fifty thousand best statement on this matter in a conversation that process or on the variety of controversies petition signatures representing fifty thousand with George Sewall Boutwell, who included it that have occurred in that same process for at plus Americans . . .” in his Reminiscences of Sixty Years in Public Affairs. least the past quarter-century. I will say that it Lincoln, who had just nominated Salmon P. At that point, Martin burst out, “I don’t think does appear to me, from knowing a fair amount Chase as chief justice, candidly said that he petitions are what decide lawsuits. We decide about my colleagues on the federal bench and wanted Chase to rule certain ways–for exam- the case on the law and the facts, and we want quite a number of the nominees, that there is a ple, by upholding the Emancipation Proclama- it very clear that we are not policymakers, we considerable lack of alignment between the Bulletin Winter 2004 27 been equivalent to a pay cut of over 80 percent. • Courthouse construction. Courts need to The actions of federal So there are things that nibble around the do a better job of being efficient and minimiz- judges are subject to legiti- edges, but I think they only become true threats ing requests for dwindling federal dollars. For if taken to extremes. In the same way, a total example, even though a new federal court- mate criticism and are not refusal by the president to nominate, or by house was built in Los Angeles just a decade the Senate to confirm, new judges–so that ago, there is now a need for a new one. Why immune from illegitimate the judiciary would be staffed only by a shrink- wasn’t a sufficiently large courthouse built a ing cadre of persons whose proclivities were decade ago, when it would have been much criticism–but those actions thought to be known–could also have a nega- cheaper to build it? Why won’t judges agree to tive effect. courtroom sharing when there are insufficient are the independent actions resources to build a separate courtroom for I will conclude simply by saying that the ac- every judge? of the judges. tions of federal judges are subject to legitimate criticism and are not immune from illegitimate • Advising and consenting on judicial vacan- are not a legislative body. . . . So the petitions criticism–but those actions are the independ- cies. are not of any benefit in our decision making.” ent actions of the judges. As was said of anoth- • Creation of new judgeships. Judiciary Sub- This was a position in which, I know, all of our er controversial group, in a mocking ditty, “You committee Chair Lamar Smith requested a judges concurred. cannot hope to bribe nor twist / Thank God, General Accounting Office (gao) study to the British journalist / But seeing what un- Now, I must say that bad decisions and unin- “analyze merits of weighted filings and adjust- bribed he’ll do / There really is no reason to.” dependent decisions are not necessarily the ed case filing methods used by Judicial Confer- same. In the early 1990s, as part of a group of ence.” American judges, I had the honor of spending Howard Berman • a total of six weeks with some Russian judges, Statutory requirements that judges disclose whom we visited on three separate occasions travel junkets and personal finances. While before, during, and after the collapse of the such statutory requirements are appropriate, Soviet Union. During our early visits, in 1991, The congressional-judicial relationship in- it is also appropriate for courts to have the abil- we were told that their great fear was “tele- volves a certain degree of inherent conflict. ity to redact those disclosures, and Congress phone justice,” wherein a party would call the Congress controls the resources (funds, build- has given courts the ability to do such redac- judges and tell them how to decide. One of the ings, etc.) that courts need to function; con- tions. trols the number of judgeships; advises and more cynical dissident defense attorneys said, • Judicial pay. I support paying judges more “You know, they talk about telephone justice, consents on judicial vacancies; and deter- mines the jurisdiction of the courts. The fed- and restoring missed judicial Cost of Living but that’s just for the stupid ones. The smart Adjustments (colas). I also support repeal of ones don’t have to be called.” eral courts, for their part, interpret and some- times overturn the laws Congress writes. Section 140, which requires Congress to pass additional authorization each year for increas- With respect to pay, it should be noted that the cola founders were quite concerned about the abil- I suppose much of the conflict created by con- es in judicial pay, including s. I would ity of Congress to affect judges’ decisions by gressional regulation of the courts could be have supported an amendment to repeal Sec- the manipulation of the pay scale. As Alexander avoided if Congress simply acceded to the de- tion 140 if the Judiciary Committee had marked Hamilton stated in The Federalist Papers, no. 79, mands of the judicial branch on issues under up the Federal Courts Improvement Act of “A power over a man’s subsistence amounts to congressional control. But from my perspec- 2003 at its meeting of May 7, 2003. a power over his will.” In our modern, inflation- tive, there is a certain amount of congressional regulation of the courts that is both appropri- Even though it may be appropriate for Con- prone society, this phenomenon has taken a gress to regulate courts in certain areas, that variety of forms. It would obviously be a chal- ate and constitutionally mandated. At the same time, there is no doubt that Congress can go, does not mean that Congress always has to lenge to independence for Congress to random- exercise its authority. In many circumstances, ly cut judges’ salaries by 3 percent one year and and at times has gone, too far in regulating courts. the federal courts can exercise this authority, by 14 percent another; however, simply refus- and if the courts do so responsibly, Congress ing to raise salaries in order to match the de- It is probably impossible to establish a bright should defer to such judicial self-regulation. basement of the currency would create the line between appropriate and inappropriate However, if the courts fail to self-regulate re- same effect. In 1967, a year not usually thought congressional regulations of the courts. In fact, sponsibly, Congress has the responsibility to to embody judicial extravagance, judicial sala- the checks-and-balances system of govern- step in and exert its own authority. ries and congressional salaries were $42,500– ment established by the founding fathers en- a figure that, when adjusted for inflation, would sures that a bright line cannot be drawn. But The process for amending the federal rules of require a pay raise of over $70,000 dollars to in general terms, I believe it is appropriate for evidence, civil procedure, appellate procedure, match today. While I now feel little embarrass- Congress to regulate administration of the ju- and criminal procedure is a great example of ment over that, especially given that my young- dicial branch, but not appropriate for Congress how judicial self-regulation can work. est child graduated from college last June, the to regulate the judicial function. Unpublished decisions are another example direction of that effect, as well as the effects of of successful self-regulation. As a result of sig- quite a number of other individual measures, I can best explain my thinking on appropriate nificant public outcry, the Subcommittee on could, if driven to extremes, threaten judicial congressional regulation of the courts by dis- Courts, the Internet, and Intellectual Property independence. For example, had there been cussing specific examples: held hearings and had discussions about leg- no pay raises since 1967, the result would have islation. The federal courts effectively pre- 28 Bulletin Winter 2004 empted congressional regulation by adopting Judges reduce public and congressional respect their own new rules on unpublished opinions Where the courts don’t self- for the judicial branch when they engage in through the Judicial Conference. regulate responsibly, Con- either conservative or liberal judicial activism. The perception of impartiality is critical to the Unexplained decisions may end up being a sim- public’s respecting and obeying judicial deci- ilar success. hr 700, introduced by Represen- gress has the responsibility sions. tative Ron Paul, would amend the federal rules of appellate procedure to require federal ap- to step in. State sovereign immunity decisions display peals courts to issue written opinions in certain As inappropriate as it is for Congress to tie the conservative judicial activism. Courts, partic- cases, and thus prohibit appeals courts from hands of courts through mandatory minimums, ularly the Supreme Court, are ignoring the engaging in the practice of affirming lower- it is exponentially more inappropriate for Con- specific words of the 11th Amendment and court decisions in one sentence. A committee gress to seek to pressure judges who don’t share crafting a theory of state sovereign immunity of the Judicial Conference has begun the pre- its perspective on mandatory minimums. Yet from “fundamental postulates” that underlie liminary process of examining whether to rec- this Republican Congress has done just that to the constitutional scheme. Yet these same ommend that the Judicial Conference adopt a federal judge from the District of Minnesota. judges claim to be strict constructionists and such a change. Because that judge testified at a congressional reject the idea that a right to privacy can be in- ferred from the constitutional scheme. However, the judicial privacy issue is one exam- hearing in opposition to mandatory minimums ple of an area in which judicial self-regulation at the invitation of the Democratic minority, The courts’ positions on state sovereign immu- was not working. Several federal judges ex- the majority has engaged in a campaign to nity, contrasted with their positions on priva- pressed concern that the Administrative Office hound him. The Judiciary Committee issued a cy, are totally inconsistent and lead many to of the Courts (ao) was monitoring their elec- far-ranging subpoena to demand records relat- the conclusion that the courts have a political ed to the judge. Furthermore, the chair of the tronic communications. When those federal gao agenda. judges and several members of Congress, in- Judiciary Committee has commissioned a cluding myself, expressed concern about this, study of this judge’s practices regarding down- the ao was not cooperative and resisted ad- ward departures from mandatory minimums. Questions and Answers dressing these concerns. I proposed legislation Legislation to limit judicial review of statutes Jesse Choper: It strikes me that the issue of that prohibited ao interception of electronic is also inappropriate. There are a variety of adequate judicial compensation is much more communications unless pursuant to Judicial examples of such legislation: connected to the quality of the judiciary and Conference policy. Even though this legislation • to its diverse nature than it is to judicial inde- left it to the courts to regulate themselves, the The Healthy Forests Restoration Act of 2003, hr pendence. If Congress is going to limit travel ao fought against it. I tried to work with ao 1904, which establishes a fifteen-day time funds for judges, then it is likely that Congress on a compromise judicial privacy amendment, limit for filing appeals, directs courts to defer is not going to give them salary raises that keep but the ao continued to oppose it. Finally, I to agency determinations on balance of harm pace with inflation, and this will affect judges went so far as agreeing to withdraw my com- and public interest when considering requests regardless of their voting records or whether promise amendment if ao would send a letter for preliminary injunctions, requires courts to their rulings agree with the prevailing political disavowing its intent to monitor and declaring render a final determination within one hun- majority. I’m wondering why, back in the eigh- that it did not have authority to monitor unless dred days, and limits lengths of preliminary teenth century, the drafters of the Constitution the Judicial Conference directed it to do so. injunctions to forty-five days. provided against reduction in judicial compen- However, the letter the ao eventually sent was • NextWave bankruptcy legislation from the sation in Article III. Was it to protect quality? missing the critical language providing these 106th Congress, which would have created a Or was it to secure independence? assurances. specialized, expedited review process for pro- Danny J. Boggs: I think the constitutional pro- In such circumstances, it is entirely appropri- posed statutory settlement of the NextWave vision was included in light of the British king ate that Congress reclaim its authority to regu- litigation, in particular requiring courts to act having had the power to cut off people’s sala- late the administration of the courts. Where within specified time periods and limiting ries, or cut them in half, or cut them to one- the courts don’t self-regulate responsibly, Con- courts to review of constitutional questions. tenth; that was the immediate evil being ad- gress has the responsibility to step in. • The Class Action Fairness Act of 2003, hr dressed. If you read The Federalist Papers, no. 79, There are also adequate examples of improper 1115, which provides the right to seek an inter- you’ll see that the founders also understood congressional interference with judicial func- locutory appeal of a decision on class certifica- that the debasement of our currency was a po- tions. tion, and provides an automatic stay of that tential problem. As I indicated in my remarks, decision until the appeal is decided. I don’t see this as a major threat today–it’s Mandatory minimum sentences improperly just something that’s nibbling around the What possesses Congress when it steps over tie the hands of judges. The central and crucial edges. But I can certainly see people saying the appropriate bounds of appropriate regula- judicial function is to look at the facts of a case, that if we judges collectively make a lot of de- tion of the courts? While I do not mean to jus- interpret the law, and, on the basis of the facts cisions that annoy Congress, then Congress is tify congressional overregulation of the courts, and law, decide what outcome will serve jus- unlikely to put its neck out by raising our pay the courts should understand its roots. One tice. Only the judge who has sat through the to compensate for the restrictions. No individ- example of what inspires congressional ire trial can determine how to serve justice. Cer- ual judge at the circuit level is likely to annoy toward the courts is judicial activism, wherein tainly, members of Congress cannot decide, Congress that much all by himself or herself. the courts use their judicial power to make law years before a crime has ever been committed, Lots of federal judges share the view that if the appropriate punishment for that crime. and/or policy. Bulletin Winter 2004 29 they were collectively more complacent about Congress’s bills in terms of interpreting them or their constitutionality, then Congress would be more cooperative in approving pay raises and other kinds of judicial funding.

Abner J. Mikva: A Canadian Supreme Court decision says that questions of financing must be handled outside of both the Congress and Judith Resnik Danny J. Boggs Howard Berman Abner J. Mikva the courts. The government generates a more or less independent commission to address sary for the judicial branch as a whole to real- ble to the public, to report decisions in a way any such issue, and there’s a minimal judicial ize its organizational objectives? that makes them known to the public, and to review of the outcome. Around the world, as bring them into public discussions of the fed- Judith Resnik: Your question brings me to people worry about independence, they worry eral judiciary. These are people making central another aspect of judicial independence: val- about resources for the judiciary. Here in the judgments for so many in the United States, so uing the activity of judging itself. In my view, United States, I think we have to look at the many holders of federal rights, and they work we are at risk of losing the understanding that resources not only as the actual salary line for relatively invisibly. someone holding a federal judgeship, but also judging is a desirable and a good kind of deci- as the individual’s ability to do the work. A sion making. The risk is coming, in part, from Boggs: That’s obviously a very broad topic, judgeship conferred through Congress is not judges who–in their eagerness to support and Professor Resnik has given a very broad only more expensive in terms of dollars; it also “alternative dispute resolution”–insist that answer. I think, in a sense, it comes back to the requires a congressional act. The federal judi- a “bad settlement is better than a good trial.” notion of the functions with which we want to ciary can decide internally to create more That very sentiment (and those words) can be endow the judiciary. As a broad proposition, I magistrate judgeships, but new bankruptcy found in published opinions and in commen- don’t think that the term “judicial independ- judgeships require Congressional approval of tary by judges teaching other judges how to ence” speaks to the breadth of matters that we a salary line. If we want more independent ac- settle cases. As of 2003, of one hundred civil want the federal judiciary to handle. There are tors, however, and if we think that indepen- cases that are filed, fewer than three begin a arguments about the judiciary’s role in such dence derives from some degree of economic trial. Today, we are in an era in which many areas as expanding criminalization or contract- freedom, we need to recognize that we aren’t judges themselves do not have a positive atti- ing economic regulation, but by and large, these moving in that direction under the current tude toward the activity of adjudication. are matters that Congress decides. system. Other judiciaries around the world, in Let me turn to another pressure on the model Professor Resnik spoke about the toleration of constitutional democracies, are trying to de- of fair and deliberate judgment: aggregate de- aggregate decision making. I would note that velop mechanisms to create more structural cision making. An example from a case last term legislation is an aggregate judgment. For ex- space. Actually, in this country, some state involved persons convicted of certain crimes ample, if we say that a person in Minnesota courts have taken the view that the separation and thereafter labeled as at risk of committing has to have the same air conditioner as a per- of powers assumes that resources are essential future crimes. Rather than requiring a case-by- son in Mississippi, which some energy regula- to the idea of the judiciary as a functioning case decision about each individual, the Su- tion does, that’s an aggregate judgment. You institution. preme Court upheld a statutory presumption may think it’s stupid, but it’s still a piece of Robert C. Post: I’d like to ask a question about that bundled all individuals who had been con- legislation, and unless somebody declares it judicial independence. It is certainly the case victed of certain crimes and placed them in a unconstitutional, you abide by it. single category–with their names up on a web- that judges must have a free and independent In terms of the broad activity she attributed site. Similarly, in sentencing, the trend is to- mind in order properly to decide a case. This is to all the non-Article III judges, I think one of ward aggregate, grid-based guidelines, rather the sense of judicial independence referred to the real questions–keeping in mind that Con- than individual decision making. Let me be by Judge Boggs. But there is a second sense of gress established the Administrative Proce- clear: I am for guidelines and norms and re- judicial independence that was referred to by dures Act–is the extent to which something view, but I do not believe it is wise to reduce Professor Resnik. If we think of the federal really is an Article I function. Many adminis- the decision about the length of time a person judiciary as the third branch of government, trative law judges, in the end, are speaking in spends in prison to a formula. So a real threat which is organized to accomplish discrete ob- the name of a cabinet secretary. Congress can that I see–coming from within the branches jectives, then we have to also imagine judges limit some activity to the secretary, or Con- of government and from outsiders– is a threat as connected to each other in the service of gress can permit, or even require, that other to the belief in the activity of judging itself. these objectives. We might believe, for exam- officials handle it. While it might have been ple, that judges who are underutilized should Here is why having enough judges makes a dif- nice for those people to be called judges (so be required to transfer to districts that are ference. Here is why the non-Article III judges magistrates became magistrate judges, and severely in arrears, so that the judicial branch today are so important, for they make tens of hearing officers became administrative law of government can fulfill its institutional mis- hundreds of decisions in individual cases, in- judges), it was basically a political judgment sion of offering prompt and efficient justice. volving immigration, benefits, social security, under the structure that Congress set up. I can I’d like to ask the speakers to comment on how and the like. We must pay attention to these preach that either way without saying that it they imagine judicial independence working judges and find ways to give them the cultural, disturbs the functions with which we want to in this second sense. How does the judicial political, and judicial “capital” to make their endow the judiciary. Some members of Con- independence necessary for making discrete decisions wisely and transparently. We need to gress may want the judiciary to handle certain decisions fit with the interdependence neces- find ways to have them work in rooms accessi- matters, and others may not. 30 Bulletin Winter 2004 Mikva: In response to Jesse Choper’s earlier question regarding the relationship between independence and compensation: One point that didn’t come up, but that I think needs to be raised, is that the implicit bargain in the life-tenure provision of Article III should be thought of as two-way; that is to say, the judge will stay a judge. As a litigant, I would not want Jesse Choper Robert C. Post Linda Greenhouse Nelson W. Polsby to appear before a judge who might not be a judge next year, or who might be a practicing Post: The distinction that Congressman Ber- tal decisions about rights–I see it in the area lawyer or have some other ambition that could man made between the administration of the of asylum litigation, for example. Instead of color his or her judgment. That, I think, very judiciary and the functioning of the judiciary allowing for a sensible administrative process much undermines the value of an independent calls to mind a memorandum that Chief Jus- with some level of judicial review, with tilts judiciary. Also, I’ll note that it’s conventional, tice William Howard Taft wrote to President to the decision of the administrative agency, in this debate about compensation, to look at Coolidge in 1927. There was at the time a bill these initiatives would deprive the courts of departure rates, at the numbers of people leav- pending before the House that would have any power to act on things that I think are ulti- ing the bench–not retiring, but leaving to do prohibited federal judges from commenting to mately judicial questions. something else–sometimes something unre- the jury on the judge’s understanding of the Resnik: The exchange between the Congress lated, but usually the practice of law. The evidence. In his memorandum, Taft said this and the Judicial Conference about whether to numbers are inherently small, but they’ve been bill would be unconstitutional because it would federalize certain class actions currently liti- larger in the past ten or fifteen years than they infringe on the independence of the judiciary. gated in state courts–raised just now by Con- have been historically–and that, it seems to Now, quite apart from whether the bill was in gressman Berman–points to an important me, is a reason for concern. fact constitutional or not constitutional, Taft’s question about what role the Judicial Confer- argument does require us to think a little bit Linda Greenhouse: I think that if you asked ence ought to take when asked to comment on about the distinction between the prerequi- most judges for their personal thoughts on proposed legislation. At times, in its history, sites of independent judgment and the admin- the question of judicial independence, their the Conference has taken the position that it istration of the judiciary. responses would touch on two current contro- ought not to comment on certain matters of versies. One concerns sentencing guidelines, Howard Berman: It seems to me that part of “legislative policy.” At other points, the Con- or sentencing discretion, which has been al- this is about the judiciary’s ability to make dis- ference has noted that a particular proposal luded to, although I’d like to hear Judge Boggs crete decisions–not that we are not interfer- would likely increase judicial workload, but comment on that issue. The other controversy ing with, or retaliating for, the exercise of that then not said more. And at other times, the centers on a bill that I believe came to the leg- function. That does seem to be at the heart of Conference has registered its opposition to a islative floor in the last session of Congress. I it. I was thinking of your question in the con- specific proposal. Several questions emerge. don’t think anything’s happening with it right text of a recent letter–I could be wrong, but I First, if the Judicial Conference is to comment, now; maybe it was shot down. The bill, spon- believe there’s a recent letter from the Chief how should it decide how to formulate its sored by Senators Kerry and Feingold, sought Justice, or maybe it’s from the Judicial Confer- views? Currently it relies on a committee struc- to limit the ability of judges to attend various ence as a whole, that essentially challenges the ture, but it does not seek the views of all of the kinds of seminars in educational venues, in wisdom of passing class-action legislation that judges before forwarding opinions to Congress. response to certain specific situations. Many would essentially federalize huge amounts of Second, ought the Judicial Conference provide judges to whom I spoke thought this was an class-action cases, because of the consequences a singular view or forward a range of responses intolerable infringement on judicial independ- of the workload increase on the federal judici- on the pros and cons of a proposal? Third, how ence, and I’d like to hear comments about how ary. I love that letter. I’m going to find that let- might we think about what meaning to make that fits under the rubric of our discussion ter, and, when we mark up that bill, I want to of a comment such as the Judicial Conference today. use that letter in my debate. is “for” or “against” federalizing certain class actions? Should some collective assessment Boggs: The first issue you mentioned was that I’m also thinking, what if I were sitting in Con- by life-tenured judges about either opening of sentencing guidelines. I have not served as a gress in 1938, considering a bill that would take or closing the federal courts to more cases be district judge, so I don’t have the visceral feel- what’s essentially a contract issue–a labor encouraged? As these questions suggest, as ing for the sentencing process that some judges agreement between a union and an employer– the judiciary gains its corporate voice, serious do. I know that the whole process of having and federalize it, so that our appellate courts questions result about how, why, and when to guidelines that are appealable greatly increased would have to hear appeals from this adminis- use it. I am concerned about the harm to the our workload for a long time, but ultimately trative agency all the time. That would really judiciary if it becomes too involved in assess- we seem to have coped with it–and since I burden our appellate courts. I might have had ing the wisdom of legislative proposals. Note haven’t seen any cases under the new statute, a different attitude in 1938 than I would today; that many alternatives exist to the request for I certainly wouldn’t want to opine about it. we view these things differently now. an opinion from the Conference as a whole. It’s something that I’ll have to deal with as it I’d also like to comment on the notion of an For example, one could invite judges to com- comes up. ment when their expertise would be helpful administrative officer speaking for a cabinet With respect to the Kerry-Feingold bill, there without positing those judges as “speaking secretary. We’re finding that there are a lot of was some local controversy over it. My per- for” the Article III judiciary as a whole. legislative initiatives to try and cut the courts sonal take on that bill was that it was so con- out of almost any kind of review of fundamen- Bulletin Winter 2004 31 trary to the notion we should have of even- Berman: There certainly should be disclosure, thought the public’s perception of Congress handedness. That is, most of the legislation but I don’t think that’s a problem. was lower. During an era when judges are flatly said, “Law schools, good; bar associa- being heavily attacked from one side or anoth- Mikva: Some people don’t like disclosure, tions, good; everybody else, bad.” er, that same linkage may not apply. I think it’s though. prudential and experiential, not fundamental. I’m getting expenses to come to this Stated Resnik: There’s been a real problem with dis- Meeting. It’s really wonderful, because my wife Berman: There’s another function that wasn’t closure, and the issue came up because some works in Washington, and it’s much more of a stated initially in the discussion–one that, I repeat-player litigants with great resources perk for me to come up and see her than to go think, is never stated but exists: the envy can put on conferences for judges. These are off to, say, South Dakota. Does this mean that aroused by the notion that judges should make not just mixed-audience conferences at which any legislation that’s enacted should list the more money than members of Congress. I judges are invited to speak, but conferences at Academy as one of the groups that’s capable of think that’s nuts–not for judicial independ- which judges are asked to teach law and eco- suborning judges? Of course, law schools con- ence reasons, but for reasons of quality and nomics, or antitrust law, or civil rights law. stitute the only group that really can provide diversity in the judiciary–but there’s always As it turns out, the civil rights folks are not patronage to judges. Law schools can pay us up an element that wants constantly to tie con- too well heeled, and the people with other to $25,000 a year to teach, and they can decide gressional and judicial pay together. I don’t resources are more well heeled–and, over a whether we teach one hour a week or ten hours know who’s pulling whom right now, but in period of decades, they have made an ener- a week for our $25,000, and those law schools the past three or four terms, we have steeled getic, focused project of inviting both state litigate, in their own name, in front of us. ourselves and not denied ourselves the auto- and federal judges to teach particular areas of matic pay increase, and this year we granted I could tell you some evenhanded things that law. I think the congressional response, essen- the judicial Cost of Living Adjustments–al- could be enacted: for example, you could limit tially, is to view that as improper. though I think that the section requiring us to all compensation to the federal per diem rate, Nelson W. Polsby: This has been an eye- do it every year is pointless if we’re not even and that would get rid of the notion of plush opener for me. Let me simply sing you an old doing it for ourselves. expenses. I don’t think I’ve ever had a confer- song, and you can tell me whether this is wrong. ence expense that didn’t come in under the The old song goes this way: “It’s congressional federal per diem rate. But that would be even- salaries that stink, and there’s no way to raise © 2003 respectively by Judith Resnik, Danny J. handed. A bill that would set up a commission them unless you can piggyback on the inde- Boggs, Howard Berman, Jesse Choper, Abner J. to approve what judges can and can’t go to pendence of the judiciary and the senior civil Mikva, Robert C. Post, Nelson W. Polsby, and would be problematic–but I haven’t seen that service.” Therefore, judicial pay is the choo- Linda Greenhouse. legislation go very far. choo train that’s pulling senior civil service The remarks of Judith Resnik and the charts Berman: As one of the people who have strong and congressional salaries in its wake. Has that by Judith Resnik are based on a series of essays, views about the rules that ought to control political dynamic completely changed? including “Trial as Error, Jurisdiction as Inju- judges attending those conferences, I’m strong- Boggs: I think it goes both ways. I think differ- ry: Transforming the Meaning of Article III,” ly opposed to any legislation in the field. I think ent branches rise in public favor at different Harvard Law Review 113 (2000): 924; “Uncle Sam this is something that the Judicial Conference times, or at least they think so. I think judges Modernizes His Justice: Inventing the District can handle, taking into account the problems believe that Congress believes that the judici- Courts,” Georgetown Law Journal 90 (2001): 607; that Judge Boggs just noted. ary and Congress need to be tied together, or and “Constricting Remedies: The Rehnquist Mikva: What about disclosure? else Congress would never get a raise. I think Judiciary, Congress, and Federal Power,” Indi- that view was stronger in times when we ana Law Journal 78 (2003): 223.

Supreme Court Justices Ruth Bader Ginsburg and David Souter, Librarian of Academy President Patricia Meyer Spacks (University of Congress James Billington, and Director of Scholarly Programs at the Library Virginia) and Richard Meserve (Carnegie Institution) of Congress Prosser Gifford

32 Bulletin Winter 2004 Project Update

National Security: Impediment to Space Sciences? New International Security Issues in the Post-Soviet Region Recently announced plans for completing the International Space On November 22, 2003, Eduard Station, launching a manned mis- Shevardnadze resigned as presi- sion to Mars, and generally setting dent of Georgia as thousands of “a new course for America’s space anti-government protesters filled program” will require extensive the streets, surrounding the pres- international cooperation. Yet such idential compound. The so-called cooperation is now being signifi- Rose Revolution was another in cantly impeded by federal govern- a series of rapid and problematic transitions in the post-Soviet ter- ment regulation of the space sci- ritories. ences, according to Academy Fel- low Eugene Skolnikoff. The regional and international re- verberations of conflict in or over Skolnikoff is Professor Emeritus the borderlands of the former So- of Political Science at mit and an viet Union are a common focus expert on science and public poli- of an Academy study on Interna- cy, with particular attention to the tional Security in the Post-Soviet Space. A series of volumes will relationship between science and Eugene Skolnikoff technology and international se- emerge from the project, spon- sored by the Academy’s Com- curity. In a number of articles and sity) and Dmitri Trenin (Carnegie itar mittee on International Security addresses over the past few years, the . Another significant Moscow Center), that will focus Studies (ciss). he has been warning of the grave change made in 1999 was the ad- on the politics and policy of Rus- sian defense. It will offer an as- dangers to space-related scientific dition of scientific satellites to the The most recent volume in the sessment of the Russian military research posed by a set of federal U.S. Munitions List of items re- series is Swords and Sustenance: The that now exists and of the further rules called the International Traf- quiring an export license under Economics of Security in Belarus and itar Ukraine, edited by Robert Legvold reforms that could (and, many fic in Arms Regulations (itar). the . (Columbia University) and Cel- believe, should) shape the future Although intended to keep re- An even more comprehensive este Wallander (Center for Stra- of Russian military power. search and technology with poten- problem became apparent as uni- tegic and International Studies). The mit Press is publishing the tial military or terrorist uses out itar versity researchers began to real- The book examines the fashion- books as part of the American of the wrong hands, what the ize that routine exchanges of in- ing of security policy under con- Academy Studies in Global Secu- may end up doing instead, accord- formation between American sci- ditions of market transition and rity series. To order copies, call ing to Skolnikoff, is handcuffing entists and some of their foreign dependence. Previously published The mit Press at 800-405-1619 or was Thinking Strategically: Kazakh- American science and industry colleagues and students–even if visit http://mitpress.mit.edu. and actually undermining U.S. stan, the Major Powers, and the Cen- the information involved was un- The Academy is deeply indebted national security. tral Asian Nexus, edited by Legvold, classified or had long been in the which illuminates the contrast- to the Carnegie Corporation of Several worrisome restrictions on public domain–now required a ing strategies of China, Japan, New York for its support of these academic freedom and scientific license, with the threat of crimi- Russia, the E.U., and the United studies. openness and exchange have come nal penalties for those who violat- States toward Central Asia. Forth- to bear since the terrorist attacks ed the rules. coming in the series is a volume, on the United States, though prob- edited by Legvold and Bruno Cop- According to Skolnikoff, the cur- pieters (Free University, Brussels), lems with the itar actually pre- rent itar regime has adversely that will discuss the sometimes date 9/11. Skolnikoff traces the or- affected the space sciences: There violent process of state building igins of the current threat back to are delays in proposed projects; in Georgia, and the effort of Geor- 1999, when Congress transferred “virulent” complaints from for- gian and other leaders to fashion responsibility for licensing the ex- eign researchers, many of whom national and mutual security pol- port of U.S.-manufactured com- have decided not to collaborate icies in the Caucasus region. Also mercial satellites from the Com- with Americans; short-circuited forthcoming is a book, edited by Steven Miller (Harvard Univer- merce Department’s Bureau of discussions at international scien- Export Administration to the State tific meetings; questions about Department, which administers Continued on page 34

Bulletin Winter 2004 33 National Security continued from page 33 Reconsidering the Rules of Space the participation of foreign grad- uate students in research projects In the effort to return to the moon, David Wright and Laura in American institutions; delay or “The most important ‘how’ ques- Grego (both, Union for cancellation of projects involving tion,” according to Academy Fel- Concerned Scientists) collaboration between universi- low Neal Lane (Rice University), discuss their paper at ties and foreign or multinational “is the extent to which this will be a meeting held at the House of the Academy. corporations; and “compromised” an international effort.” Testifying relations between certain univer- before the Senate Committee on sities and nasa. These kinds of Commerce, Science, and Trans- obstacles to free and open scien- portation in January 2004, Lane tific exchange pose a threat to what observed that “there is also rea- Skolnikoff calls the “fundamental son for other nations to question U.S. policy on the future use of values” of America’s research in- space, given statements made by stitutions. “It is imperative that high-level U.S. government lead- terests should be, and what kinds the Committee on International the nation’s research institutions ers and in military strategy docu- of international rules should be Security Studies hopes to get the continue to defend the openness ments about the need to prepare negotiated to protect the full range necessary dialogue under way. and the freedom to exchange in- for increased military activities in of our interests, both military and The project convened two work- formation which are so important space.” non-military,” says project leader shops in fall 2003. The first, held to maintaining our scientific and and ciss cochair John Steinbruner To promote discussion of alterna- at Rice University with the help of technological leadership.” (University of Maryland). He notes tive policies, the Academy’s Com- Neal Lane and George Abbey (for- that stated U.S. plans to deploy mittee on International Security mer director of the Johnson Space Nor is it just America’s scientific ciss space-based weapons are inher- Studies ( ) has been engaged Center), focused on the implica- community that is in jeopardy. As ently objectionable to most other in a multi-year project on “Recon- tions of U.S. space and defense Skolnikoff and other Fellows in- countries and exceedingly unlike- sidering the Rules of Space.” policies for the commercial space volved with the Academy’s Rules ly to command international con- industry. The second, held at the of Space project learned at a recent “The participants in our study sent. By bringing together various House of the Academy, reviewed believe that the American public constituencies (commercial, sci- workshop in Houston (see accom- technical aspects of securing space needs to be more engaged in de- entific, and governmental) with a panying story), the American com- assets. Publications from these termining what our balance of in- direct interest in U.S. space policy, mercial space industry has already workshops are planned for the been seriously harmed by the re- spring and summer of 2004. In strictions imposed by the itar. addition, the project has commis- sioned papers on Chinese perspec- Far from downplaying the threats itar tives on U.S. space plans and on that the is intended to count- Russian space policy. It is also or- er, Skolnikoff agrees that the dan- ganizing a working group to study gers are real. Yet the irony behind rules of international cooperation the current rules, he points out, is in space. that they may end up weakening In his testimony, Lane urged mem- U.S. national security by under- bers of Congress and the adminis- mining American technological tration to consider the Academy’s capacity and international leader- forthcoming work on space policy ship. Hence the importance of the as they go forward with plans for Academy’s Rules of Space project, refocusing nasa’s future mission. which is examining the politics The Academy’s Committee on In- and potential of greater interna- ternational Security Studies plans tional cooperation in the develop- and sponsors research on current ment of space. “I don’t know yet and emerging challenges to global what an ideal international regime peace and security. For more back- Some of the participants at the workshop held at Rice University: top row, ground on “Reconsidering the in space would look like,” Skolni- left to right: Magued Iskander (MD Robotics), Karl Doetsch (Internation- koff concludes. “That’s why I’m al Space University), Martin Malin (American Academy), Roald Sagdeev Rules of Space,” see “Progress Re- taking part in this project–to find (University of Maryland), Randy Brinkley (J. F. Lehman and Company), ports on Academy Projects” in the out.” Eugene Skolnikoff (MIT), Neal Lane (Rice University), Darlene Freeman Winter 2003 issue of the Bulletin. (SES Global Sourcing), George Abbey (Rice University); bottom row: The Carnegie Corporation of New Nancy Gallagher (University of Maryland), John Steinbruner (University of Maryland), Richard Garwin (Council on Foreign Relations), Patricia York has generously provided sup- McFate (Science Applications International Corporation) port for this project.

34 Bulletin Winter 2004 Moynihan Tribute continued from page 21 The House of the Academy: which one ethnic group dominat- ed many others. Even though An Ideal Location for Meetings and Social Events conflicts among them were sup- pressed by the totalitarian regime Conveniently located in the heart and were not evident, they were of Cambridge on a secluded five- there. When the Soviet Union and-a-half acre wooded estate, broke up Moynihan was virtually the House of the Academy is avail- alone among the public figures able to Fellows and their friends who had pointed to the fault lines and families for meetings, recep- of divisiveness and the potential tions, business and personal social events. An elegant retreat within weakness represented by the dom- the city, the House is ideal as an inance of one group over many. intimate meeting place for small Certainly his work on ethnicity, groups, or for larger celebrations beginning with our book on New of up to 400 guests. York City and extending to ethnic The facilities at the House include conflict around the world in the executive conference rooms; a Academy project of the 1970s, 250-seat auditorium; reception sensitized him to this issue. atrium and hearth; three separate I have given a somewhat parochial dining rooms; and high-quality audiovisual/communication sys- picture of the work and mind of tems. The expert catering staff Daniel P. Moynihan in concentrat- will help you plan a menu to suit ing on his connections with the the needs of your group. Academy. There were so many other issues on which he played For more information or to book key and historic roles: the reform the House for your next event, please contact the General Man- of welfare, the shoring up of social ager of Norton’s Woods (tele- security, the improvement of the phone: 617-576-5030; email: design of federal buildings, the [email protected]). creation of new institutions of re- search in public affairs. He was a unique figure in American intel- lectual and political life. It was said of him that he had written more books than many members of the published with Harvard Univer- In 1997 Moynihan conducted Sen- haps up to and including the Pres- Senate had read. His work as a sity Press On the Law of Nations, a ate hearings on the scope of secre- ident? Moynihan raised these senator for twenty-four years– defense of the possibilities and cy in the government. Yale Uni- questions; how prescient they are and there are no sabbaticals in the prospects of international law. versity Press published his last today. Senate–meant that the writing Moynihan was concerned with book, Secrecy: The American Expe- Moynihan was one of our great of books was limited to his sum- certain cavalier actions of the Rea- rience, in 1998. The hearings and public servants. But he was also, mers, and some were inevitably gan administration, which had book dealt with an issue that can as we look at his relations to the sketchy and brief. But when one pushed against and beyond the only be of ever increasing concern. Academy and to the kinds of issues considers his last few books one fragile restraints of international What should a democratic govern- he brought to public attention, the sees immediately how his mind law. Compared to what we have ment keep secret from the people? ideal member of our Academy. was naturally drawn to and en- recently seen, the issue then was And with what consequences? And so we of the American Acad- compassed the kind of issue that no larger than a man’s hand, but Moynihan was troubled by the emy of Arts and Sciences must the Academy is best at address- it is now a very large cloud indeed. enormous expansion of the num- note with sadness his passing, and ing: one that for its better under- In 1993 Moynihan published Pan- ber and size of our security agen- record our appreciation of the gifts standing inherently requires bring- daemonium: Ethnicity in Internation- cies entitled to stamp their work of insight and understanding he ing together people from many al Affairs with Oxford University “secret.” This “secret” category brought to us. disciplines and from many worlds. Press. As we look at Iraq and Israel of government documents is of and Palestine today–not to men- unimaginable quantity and range. In his last books, he demonstrat- tion the Caucasus, the Congo, Sri How does all this shape policy, ed his continued remarkable abil- Lanka, and on and on–the issues and can it be good policy when so © 2003 by Nathan Glazer. ity to seize on key issues whose to which Moynihan drew attention much is withheld from the people, significance would only become then have only become larger. from actors in government, per- greater in time. In 1990, Moynihan

Bulletin Winter 2004 35 Around the Country

University of California, Irvine

Western Center cochair Walter that country, emphasizing the need Fitch (uc Irvine) organized an to develop strategies to address Understated Meeting of Fellows such issues as unemployment, in- at uc Irvine on October 7, 2003. flation, management of water re- Safi Qureshey, managing partner sources, and the advancement of of Skyline Capitol Partners and educational opportunities. member of the Dean’s Board of Clockwise: Academy staff Roberta Peter- Directors, uc Irvine Graduate son and Jean Keating, David Easton (UC School of Management, led an in- Irvine), Paul Silverman (Irvine, Calif.), Wil- formal conversation on political liam Daughaday (UC Irvine), Jack Peltason stability in the Middle East and (UC Irvine), Safi Qureshey (Skyline Capitol Partners), Walter Fitch (UC Irvine), Eliza- Far East. As a long-term advisor beth Loftus (UC Irvine), and Francisco to the government of Pakistan, Ayala (UC Irvine). Not shown: R. Duncan Qureshey also discussed the pol- Luce, Masayasu Nomura, A. Kimball Rom- itical and economic situation in ney, and Brian Skyrms (all, UC Irvine)

Los Angeles County Museum of Art

The Western Center held a Stated Meeting on September 13, 2003, at the Los Angeles County Museum of Art (lacma), in conjunction with the exhibition “Old Masters, Impressionists, and Moderns: French Masterworks from the State Pushkin Museum, Moscow.” Academy Fellow Stephanie Barron, senior curator of modern and con- temporary art and vice president of education and public programs lacma at , presented a brief his- Speakers Stephanie Barron and Thomas Crow tory of the Pushkin Museum from its founding in the late nineteenth century to the present day, and commented on paintings in the exhibition by Degas, Van Gogh, Cezanne, Braque, and Matisse. Fellow Thomas Crow, professor of art history at the University of Southern California and director of the Getty Research Institute at the Getty Center in Los Angeles, spoke on “Collecting and Display as Subjects of History.” His talk focused on the influence of Cath- erine the Great on the eighteenth- century French painter Jean-Baptiste Greuze, and on the impact of New member Donald Glaser (UC Berkeley), Lynn Glaser, early-twentieth-century collectors and new member Vincent Crawford (UC San Diego) Sergei Shchukin and Ivan Morozov Edward Feigenbaum (Stanford on Russian art, just prior to the University) and Penny Nii Russian Revolution.

36 Bulletin Winter 2004 Adler Planetarium, Chicago

Vice President for the Midwest Turner described the recent revo- Center Martin Dworkin (Uni- lution in cosmology, resulting from versity of Minnesota) welcomed the interaction of technological Fellows and guests to the Adler advances and scientific ideas. He Planetarium in Chicago for the focused on the theories and instru- Center’s fall Stated Meeting and ments that have produced greater dinner. The speaker was noted understanding of the “inflation” astrophysicist Michael S. Turner, of the universe and of the slowly Raumer Distinguished Professor moving particles, know as Cold at the University of Chicago and Dark Matter, that are purported Assistant Director for Mathemat- to hold the universe together. As ical and Physical Sciences at the Turner observed, “It’s hard to ar- National Science Foundation. In gue with those who call this the a richly illustrated presentation, Golden Age of cosmology.” New Fellows Rochelle Esposito and Speaker Michael S. Turner Donald Lamb (both, University of Chicago)

Rice University

President of Rice University Mal- universities, with particular em- colm Gillis hosted an on-campus phasis on the need for greater in- reception for Academy Fellows terdisciplinary perspectives in in fall 2003. Academy President the curricula of academic depart- Patricia Meyer Spacks attended ments and professional schools. the reception, where participants The Academy is grateful to Fel- engaged in a general discussion of low James Kinsey for planning teaching and research in American the event.

James Kinsey

Malcolm Gillis

National Humanities Center

Last fall, the National Humanities spoke on “The Supreme Court Center hosted an Academy Stat- and American Democracy 2004.” ed Meeting in Research Triangle Dellinger is the Douglas B. Maggs Park, N.C. Edward Perl, the Sarah Professor of Law at Duke Univer- Graham Kenan Professor of Cell sity. The National Humanities and Molecular Biology at the Uni- Center, nearing its 25th anniver- versity of North Carolina at Chap- sary, was founded by the Academy el Hill, welcomed members and in corporation with Duke Univer- guests, including Academy Pres- sity, the University of North Caro- ident Patricia Meyer Spacks and lina, and North Carolina State Executive Officer Leslie Berlo- University. At the reception that witz. John Hope Franklin, James followed, Geoffrey Harpham, pres- B. Duke Professor Emeritus of ident and director of the National History at Duke University, intro- Humanities Center, greeted the duced Walter E. Dellinger, III, who attendees. John Hope Franklin, Walter E. Dellinger, III, President of the Academy Patricia Meyer Spacks, and Edward Perl Bulletin Winter 2004 37 In My Opinion

Values and Corporate Responsibility: A Personal Perspective by John S. Reed

All is not well in Corporate America. Of greatest concern is 1. Management needs a more the seemingly broad-based breakdown of values and respon- wholesome objective than sibilities highlighted by Enron, WorldCom, Arthur Andersen, shareholder value. I suggest the Wall Street “settlement,” and so forth. What happened? evolutionary success. Why? What is to be done about it? These are among the ur- gent questions being posed by an ongoing study of corporate 2. Boards need to accept and be responsibility at the American Academy of Arts and Sciences. held accountable for new re- sponsibilities, particularly management values and be- What happened seems to be clear. holder value and the cult of the ceo haviors, and the impact of Too many examples of extreme super-highly paid . incentives. corporate behavior, and the com- What is to be done? At one level plicating complacency of pre- the problem is a straightforward sumed professionals–directors, 3. Structural risks must be offset question of values. Companies auditors, lawyers, and bankers– by clear responsibilities and are expected to be honest and re- have severely harmed the trust rules. Those who choose to link John S. Reed port results as they are. Auditors, and confidence essential to free investment banking, retail anal- lawyers, and bankers are expect- market capitalism. ysis, and distribution must be alike–in defining the determi- ed to maintain the values derived held to a high standard of per- nants of success. It embraces share Why this happened is, of course, from their professions. Invest- formance. less clear. Surely incentives were ment bankers are also expected price (or cost of capital) as a key wrong and checks and balances to be professionals, and analysts success factor, but not to the ex- failed to work. The seeds of these to be critical thinkers providing 4. Auditors and lawyers must be clusion of others. problems probably date back to the best possible advice to pro- held to be professionals first A “Report Card” dealing with the 1980s, when Corporate Amer- spective owners of securities. Reg- and foremost. Their expanded evolutionary success would be ica was seen as “stodgy,” a “club” ulators and boards are expected activities that raise issues of broader and more textured than uninterested in financial perfor- to be sources of balance and judg- conflict should be avoided. We one limited to shareholder value. mance, stockholders or product ment. Individuals are expected to can afford to pay the cost of It would bring with it more healthy quality, and a “loser” to new in- stand up and be independent of professionalism. discussion within managements, ternational competition–partic- “go along” norms. with the board and with the ex- ularly from Japan. This changed. The cult of short-term stockhold- 5. The final challenge is to sur- ternal community. The concept In remarkable ways, investors be- er value has been corrupting. In- round the enterprise with also embeds a more relevant time came the dominant and aggres- vestors clamoring for performance a self-evaluating and self- frame in all these considerations. sive feared force. Cynics would and share price increases, coupled correcting process to ensure If well implemented, it would be say that the balance and judgment with unrestrained compensation continuity across time. hard to distort–a problem that expected of management was linked to short-term stock prices, turned out to be fatal to share- “bought off” by large stock-based has been demonstrated to be a holder value. (How many boards compensation awards with very flawed structure. Similarly, the Management Objective have said “Earnings are good, share short-term payoff and limitless link between investment banking price is up; all must be well,” only bonus payments. The mantra of My own view is that manage- and retail distribution, without an to find that they were wrong?) stockholder value was enshrined ment’s objective should not be overarching management struc- in companies, boardrooms, ana- “shareholder value,” which, at ture that is responsible, visible, lyst reports, and the business press. least in its current manifestation, and accountable, has proven to Board Responsibility Analysts became all-important is too simplistic, but rather evo- be flawed. So too has been the and stock price became the meas- lutionary success. Evolution, a dy- One of the most striking features role of boards and the function- ure of performance and self-worth namic concept, recognizes the of this history is the failure of ing of auditors. (psychologically and literally!). reality of continuous change and boards. Shareholders pressure Too often, integrity and responsi- So, at a more profound level, adaptation. It incorporates the boards to deliver “results”; yet bility were crowded out by share- what is to be done? I have a few notion of the environment–cus- they fail to appreciate the cost of thoughts: tomers, competitors, regulators corrupting the role of these bodies. We must rely on the board to be

38 Bulletin Winter 2004 the guarantor of values, balance, 4. know the management and be erly supervise be treated as (a) judgment, and accountability. routinely apprised of develop- personal and (b) criminal, as is John S. Reed, a Fellow of the ment and succession plans. currently our practice with price Academy since 1998, is the We have to look to individual fixing. interim chairman of the board members, board organiza- New York Stock Exchange. tion and function, the nature of The board must routinely meet in This paper, written prior to board discussion, and the board’s executive session, as well as alone Auditors, Lawyers, his joining the nyse, was ceo accountability. Board members with the ; discuss and criti- and Professionals prepared for the Academy’s must be sophisticated and com- cize its own functioning from time study on corporate responsi- petent, and cannot be socially or to time; and specifically discuss, Over the last forty years, there bility and will be included in financially beholden to manage- and be satisfied with, the values has been a gradual but continual a forthcoming Occasional ment. Boards must be organized and working environment sur- movement away from standards Paper: “Beyond Regulation: to do their jobs. While it is not rounding the senior team, being and values toward processes and Corporate Responsibility in vital to distinguish between a particularly mindful of the po- procedures. Where we used to look America.” Mr. Reed current- Chairperson and a ceo, it is vital tential problems stemming from to accountants to help us proper- ly serves as Treasurer of the to recognize that these are two compensation and reward prac- ly account for a transaction, we American Academy. different functions. If a board is tices. Finally, the board should be now look to them to verify that it to “do its job,” the job must be able to demonstrate to a reason- “complies with gaap.” There is defined. Boards must: able degree that it has understood a big difference. The same is true and fulfilled these responsibili- with the law, moving from “Is it 1. know management’s plans and ties. Errors will be made, but they right?” to “Can it be defended?” be routinely apprised of pro- should not be errors of omission. What used to be part of an im- gress and problems relating to mune system has become too them; close to being part of operating Structural Risks management. There are many ex- planations for this change and the 2. understand and be comfortable Origination and distribution, par- relationship cannot be legislated with the company’s strategy and ticularly at the retail level, need to return to a world that was prob- its key underlying assumptions, not be linked in investment banks. ably never perfect. However, the and understand the strategies Yet they often are, creating the value and need for true profes- of the company’s competitors; potential for conflict. Those who sionalism must be reaffirmed. choose to operate in this way should be required to certify that More broadly, Corporate Amer- 3. understand and be comfortable ceo with the business risks and the and other senior man- ica must reaffirm a commitment social expectations for the firm, agement have responsibility for to basic values if our system of including control and account- maintaining appropriate separa- capitalism is to regain the pub- ing issues; and tions; and that failures to prop- lic’s trust.

neh ars with whom I can discuss my In addition to helping advance the history of, and trends within, the Grant vsp neh continued from page 1 field, my work, and the process , the grant will help fund humanities in America over the of writing.” Academy efforts to extend knowl- last one hundred years. (a study of the varied roles played edge and appreciation of the hu- The current group of Visiting by white and black women in the manities in America through sym- Scholars represents the fields of history of lynching in the Amer- posia, lectures, and other means American literature, American ican South). “I’ve got two years of public education and outreach. history, African American stud- before I come up for tenure, and These programs will complement ies, law, political science, and in- this is giving me a year to actually the Academy’s ongoing Human- ternational relations, with re- bang out the book,” she explains. ities Indicators database project search topics ranging from race “I feel really lucky that the Acad- and its preparation of a two- and ethnicity in America to refu- emy has given me a place to work, volume study, which maps the as well as a community of schol- gee repatriation after civil war.

Bulletin Winter 2004 39 Nominating Committee Report

Nominating Committee Candidates Proposed for Open Positions in 2004 Dear Fellows: The preliminary list is for purposes of notification only. The ballot requesting your As Secretary of the Academy, I submit vote will be mailed to you in early April. the following list of nominees for elec- tion as Councilors and Members of the Membership and Nominating Commit- committee on membership councilors tees. Candidates for the Nominating (to serve for three years) (to serve for four years) Committee are recommended by the Council; all other candidates are rec- Class I–Mathematical and Class II–Biological Sciences ommended by the Nominating Physical Sciences Committee. Randy Schekman, Section 2–Cellular Chair, and Developmental Biology, Microbiology, Additional candidates for any of these William Happer, Section 2 and Immunology positions may be proposed by written Princeton University University of California, Berkeley petition from the membership. A valid petition must be signed by twenty-five Srinivasa Varadhan, Section 1 Gerald Fischbach, Section 3–Neurosciences, Fellows of the Academy, representing New York University Cognitive Sciences, and Behavioral Biology at least four institutions from different Columbia University geographical areas. If you submit such a Douglas Lauffenburger, Section 5 petition to the Academy by April 12, the Massachusetts Institute of Technology name(s) of your candidate(s) will ap- Class II–Biological Sciences Class V–Public Affairs, Business, pear on the final ballot and, in the case and Administration of Councilors, will be accompanied by a Gordon N. Gill, Section 5 brief biography, which must be provided University of California, San Diego Linda Greenhouse, Section 1–Public Affairs, by the petitioners. In proposing a nomi- Journalism, and Communications Class III–Social Sciences nee, please make sure that your candidate New York Times is willing to stand for election and Joyce Marcus, Section 1 Richard Meserve, Section 1–Public Affairs, to serve if elected. University of Michigan Journalism, and Communications The ballot requesting your vote will be Class IV–Humanities and Arts Carnegie Institution of Washington sent by first-class mail in early April. Chair, Neal Lane, Section 3–Educational, Scientific, If you have any questions about the sub- Philip Khoury, Section 2 Cultural, and Philanthropic Administration mission of a proposal, please contact Massachusetts Institute of Technology Rice University Leslie C. Berlowitz, Executive Officer (617-576-5010). Stephen Toulmin, Section 1 University of Southern California nominating committee I want to thank the Chair of the Nominat- ing Committee, Denis Donoghue, and Rachel Hadas, Section 4 (to serve for three years) the members of the committee for their Rutgers University efforts on our behalf. Kay Kaufman Shelemey, Class I–Mathematical and Physical Sciences Emilio Bizzi Section 5 (Music) Harvard University Secretary Eugene Wong March 2004 John Walsh, Section 5 (Art) University of California, Berkeley Yale University Class III–Social Sciences

John Steinbruner University of Maryland

40 Bulletin Winter 2004 Dædalus

In 1780 the Academy was chartered as a forum “to cultivate every art and science which may tend to advance the interest, honour, dignity, and happiness of a free, independent, and virtuous On Happiness people.” Dædalus, the Journal of the American Academy of Arts and Sciences, will explore the theme of happiness from a variety of perspectives in its Spring 2004 issue. Excerpts from three essays follow: Darrin M. McMahon, “From the happi- ness of virtue to the virtue of happiness: 400 b.c.–a.d. 1780” Each of us has only a fixed amount of time available for family life, health activities, and work. Do we distribute our time in the way that maximizes Robert Biswas-Diener, Ed Diener & Maya our happiness? The answer, I believe, is no, for a reason that has already Tamir, “The psychology of subjective well- been suggested: we decide how to use our time based on the false belief that being” more money will make us happier. Because of this ‘money illusion,’ we allo- cate an excessive amount of time to monetary goals, and shortchange non- Richard A. Easterlin, “The economics of pecuniary ends such as family life and health. . . .Could we make our lives happiness” happier? The tentative answer, based on the evidence at hand, I suggest, is this: Most people could increase their happiness by devoting less time to making money, and more time to nonpecuniary goals such as family life Anna Wierzbicka, “‘Happiness’ in cross- and health. linguistic & cross-cultural perspective”

–Richard A. Easterlin on “The economics of happiness” Julia Annas, “Happiness as achievement”

If we try to measure the happiness of lives in terms of smiley-face feelings, Bernard Reginster, “Happiness as a the results will be grotesque. I have seen a survey that asks people to meas- Faustian bargain” ure the happiness of their lives by assigning it a face from a spectrum with a very smiley face at one end and a very frowny face at the other. Suppose that Martha C. Nussbaum, “Mill between you have just won the Nobel Prize; this surely merits the smiliest face. But Aristotle & Bentham” suppose also that you have just lost your family in a car crash; this surely warrants the frowniest face. So, how happy are you? There is no coherent Robert H. Frank, “How not to buy answer–unless you are supposed to combine these points by picking the happiness” indifferent face in the middle!

–Julia Annas on “Happiness as achievement” Martin E. P. Seligman, “Can happiness be taught?” Powerful philosophical conceptions conceal, even while they reveal. By shining a strong light on some genuinely important aspects of human life, Poetry: Jeremy Bentham’s Utilitarianism concealed others. His concern with aggre- Richard Howard, “On a photograph by gating the interests of each and every person obscured, for a time, the fact Mike Disfarmer” that some issues of justice cannot be well handled through mere summing of the interests of all. His radical abhorrence of suffering and his admirable Fiction: ambition to bring all sentient beings to a state of well-being and satisfaction Erin McGraw, “Appearance of Scandal” obscured, for a time, the fact that well-being and satisfaction might not be all there is to the human good, or even all there is to happiness. Other Notes: things–such as activity, loving, fullness of commitment–might also be S. George H. Philander, “El Niño & the involved. uncertain science of global warming”

–Martha C. Nussbaum on “Mill between Aristotle & Bentham” Linda Hutcheon, “The art of adaptation”

Bulletin Winter 2004 41 Noteworthy

Delegates from the Timothy Berners-Lee (mit) has tion to undergraduate teaching Select Publications American Academy to: been made a Knight Commander, and a commitment to students. Order of the British Empire by Fiction Queen Elizabeth II. Harry B. Gray (California Insti- tute of Technology) received the Louis Auchincloss (New York National Humanities Center James O. Freedman, former Acad- 2004 Benjamin Franklin Medal in City). The Scarlet Letters. Hough- Alan Brinkley (Columbia Uni- emy President (Dartmouth Col- Chemistry from The Franklin In- ton Mifflin Co., November 2003 stitute. versity) lege), received the American Jew- James Lehrer (Public Broadcasting ish Committee National Distin- System). Flying Crows. Random Denis Donoghue (nyu) guished Leadership Award. Richard M. Karp (International Computer Science Institute) re- House, May 2004 ceived the 2004 Benjamin Frank- Roeland Nusse (Stanford Univer- Joyce Carol Oates (Princeton Uni- American Council of Learned lin Medal in Computer and Cog- sity) was honored by Scientific versity). Rape: A Love Story. Carroll Societies nitive Science from The Franklin American as one of the fifty best and Graf, December 2003; I Am research leaders of 2003. Institute. Bruce Redford (Boston University) No One You Know. HarperCollins, David Freedberg (Columbia Uni- Timothy Springer (Harvard Med- April 2004 ical School) and Eugene Butcher versity) received the Ralph Waldo Richard Stern (University of Chi- American Association for the Emerson Award from the Phi Beta (Stanford University) received the Advancement of Science Crafoord Prize of the Royal Swed- cago). Stitch; Other Men’s Daugh- Kappa Society for The Eye of the ters; and Natural Shocks. Reissued Lynx, published by the University ish Academy of Sciences for their Edward R. Perl (University of research on white blood cells. by Northwestern University Press, North Carolina at Chapel Hill) of Chicago Press. Summer 2004. Almonds to Zhoof, Andrew H. Knoll (Harvard Univer- Steven Levitt (University of Chi- the Collected Stories of Richard Stern. sity) received the Phi Beta Kappa cago) has been awarded the John Northwestern University Press, International Institute for Book Award in Science for Life on Bates Clark Medal, presented Fall 2004 Applied Systems Analysis a Young Planet, published by Prince- every two years by the American Economic Association to the econ- Anne Tyler (Baltimore, Maryland). Simon Levin (Princeton Uni- ton University Press. The Amateur Marriage. Knopf, Jan- versity) omist under 40 who has made the Federico Capasso (Harvard Uni- greatest contribution to the disci- uary 2004 versity) was awarded the 2004 pline. Alice Walker (Berkeley, Califor- Select Prizes and Awards Arthur L. Schawlow Prize in Laser nia). Now Is the Time to Open Your Science by the American Physical Heart. Random House, April 2004 Society. New Appointments Wolf Prizes, 2004 Poetry Seymour Benzer (California Insti- David Brady (Stanford University) Chemistry tute of Technology) received the has been appointed deputy direc- Paul Auster (New York City). Col- Harry Gray (California Institute 2004 Bower Award and Prize for tor at the Hoover Institution. lected Poems. Overlook Press, Janu- of Technology) Achievement in Science in the ary 2004 Field of Brain Research from The Edward M. Scolnick (Merck Re- Medicine Franklin Institute. search Laboratories) has been ap- Louise Erdrich (Minneapolis, Min- Robert Weinberg (mit) and Roger pointed to the Clinical Advisory nesota). Four Souls. HarperCollins, Robert Langer, medical researcher Tsien (University of California, mit Board of Elixir Pharmaceuticals, June 2004 San Diego) ( ), Julius Richmond, health Inc. policy professor (Harvard Univer- C. K. Williams (Princeton Univer- Arts-Music sity), and August Wilson, play- Paul Schimmel (Scripps Research sity). The Singing. Farrar, Straus & Mstislav Rostropovitch (Washing- wright (Seattle) were among the Institute) has joined the Scientific Giroux, November 2003 ton, D.C.) and Daniel Barenboim recipients of the Heinz Family Advisory Board of Metabolon, Inc. (Chicago Symphony Orchestra) Foundation awards, established Nonfiction Arnold Rampersad (Stanford Uni- by Teresa Heinz (Heinz Family Walter Abish (New York City). Philanthropies). versity) has been appointed cog- nizant dean for the humanities at Double Vision: A Self-Portrait. Knopf, Benoit Mandelbrot (Yale Univer- Mike Nichols, director (New York Stanford University. February 2004 sity) received the 2003 Japan City), and Itzhak Perlman, violin- Prize for Science and Technology, Simon Levin (Princeton Univer- Bruce Ackerman (Yale University) ist (New York City), were award- and James Fishkin (Stanford Uni- awarded by the Science and Tech- ed 2003 Kennedy Center Honors. sity) has been appointed chair of nology Foundation of Japan. the U.S. Committee for iiasa and versity). Deliberation Day. Yale Uni- R. John Collier (Harvard Medical of the iiasa Governing Council. versity Press, March 2004 Roger Bagnall (Columbia Univer- School) received the Bristol-Myers Jagdish Bhagwati (Columbia Uni- sity), Robert Brandom (University Squibb Award for Distinguished James Cuno (Courtauld Institute of Pittsburgh), Anthony Grafton of Art, London) has been named versity). In Defense of Globalization. Achievement in Infectious Diseases Oxford University Press, March (Princeton University), and Chris- Research. Director of the Art Institute of topher Ricks (Boston University) Chicago. 2004 received the Mellon Distinguished Edward Ayers (University of Vir- Alan S. Blinder (Princeton Univer- Achievement Award from the An- ginia) is among the recipients of Amy Gutmann (Princeton Uni- versity) will succeed Judith Rodin sity). The Quiet Revolution: Central drew W. Mellon Foundation. the 2003 U.S. Professors of the Banking Goes Modern. Yale Univer- Year award, recognizing dedica- as President of the University of Pennsylvania on July 1, 2004. sity Press, April 2004

42 Bulletin Winter 2004 Zbigniew Brzezinski (Center for People’s Minds. Harvard Business Don Michael Randel (University Strategic and International Studies, School Press, April 2004 of Chicago). The Harvard Diction- We invite all Fellows and For- Washington, D.C.). The Choice: ary of Music, Fourth Edition. Har- eign Honorary Members to send Allan Gibbard (University of Mich- Domination or Leadership. Basic vard University Press, November notices about their recent and Books, March 2004 igan). Thinking How to Live. Harvard 2003 University Press, October 2003 forthcoming publications, sci- James MacGregor Burns (Univer- Anne-Marie Slaughter (Princeton entific findings, exhibitions and sity of Richmond) and Susan Dunn. Owen Gingerich (Harvard Uni- University). A New World Order. performances, and honors and George Washington, a volume in the versity). The Book Nobody Read: Princeton University Press, prizes to [email protected]. American President’s Series, edit- Chasing the Revolutions of Nicolaus March 2004 Please keep us informed of your ed by Arthur Schlesinger, Jr. (New Copernicus. Walker, March 2004 work so that we may share it York City). Holt/Times, January Garry Wills (Northwestern Uni- with the larger Academy com- Chalmers Johnson (Japan Policy versity). Negro President: Jefferson 2004 munity. Research Institute, California). and the Slave Power. Houghton Robert Dallek (Boston University). The Sorrows of Empire: Militarism, Mifflin, November 2003 Lyndon B. Johnson: Portrait of a Pres- Secrecy and the End of the Republic ident (abridged). Oxford Univer- (The American Empire Project). Perez Zagorin (Charlottesville, sity Press, November 2003 Metropolitan Books, January 2004 Virginia). How the Idea of Religious Toleration Came to the West. Lorraine Daston (Max-Planck-In- Frank Kermode (University of Princeton University Press, stitut fur Wissenschaftsgeschichte), Cambridge). The Age of Shakespeare. November 2003 editor. Things That Talk: Object Modern Library, February 2004 mit Lessons from Art and Science. Brian Lamb (c-span), editor. Press, April 2004 Booknotes: On the American Char- Exhibitions Gerald M. Edelman (Neurosciences acter–People, Politics, and Conflict Chuck Close: Prints: Process and Research Foundation, Scripps Re- in American History. Public Affairs, Collaboration. The Metropolitan search Institute). Wider Than the March 2004 Museum of Art through April 18, Sky. Yale University Press, March Benoit Mandelbrot (Yale Univer- 2004. 2004 sity). Fractals and Chaos: The Man- Eric Fischl: Cosmos and Chaos: Paul Ehrlich (Stanford University) delbrot Set and Beyond. Springer- A Cultural Paradox, Robertson and Anne Ehrlich (Stanford Uni- Verlag, January 2004 Museum and Science Center, Bing- versity). One with Nineveh: Politics, Martin Marty (University of hamton, N.Y., through April 30, Consumption, and the Human Future. Chicago). Martin Luther. Viking/ 2004. Island Press, May 2004 Lipper, February 2004 Lee Friedlander: Lee Friedlander: Peter Eisenman (Eisenman Archi- Rafael Moneo (Harvard Univer- American Musicians, Toledo Mu- tects, Yale University). Eisenman sity). Theoretical Anxiety and Design seum of Art through May 2, 2004. Inside Out: Selected Writings, 1963– Strategies in the Work of Eight Con- David Hockney: The Artful Teapot, 1988. Yale University Press, May temporary Architects. mit Press, 2004 Mint Museum of Craft & Design, May 2004 Charlotte, N.C., through May 30, Thomas Eisner (Cornell Univer- Joseph S. Nye, Jr. (Kennedy School 2004. sity). For Love of Insects. Harvard of Government, Harvard Univer- University Press, November 2003 Cindy Sherman: The Last Picture sity). Soft Power: The Means to Suc- Show, ucla Hammer Museum Harry G. Frankfurt (Princeton cess in World Politics. Public Affairs, though May 11, 2004; Strange Days, University). The Reasons of Love. April 2004 Chicago Museum of Contempo- Princeton University Press, Feb- Stanley G. Payne (University of rary Art through July 4, 2004; ruary 2004 Wisconsin-Madison). The Spanish and The Unseen Cindy Sherman: Early Transformations (1975–1976), Marion R. Fremont-Smith (Ken- Civil War, the Soviet Union, and Com- munism. Yale University Press, May Montclair Art Museum in New nedy School of Government, Har- Jersey through August 1, 2004. vard University). Governing Non- 2004 profit Organizations: Federal and Jaroslav Pelikan (Yale University). State Law and Regulation. Harvard Interpreting the Bible and the Con- University Press, May 2004 stitution. Yale University Press, John Lewis Gaddis (Yale Univer- May 2004 sity). Surprise, Security, and the Marjorie Perloff (Stanford Uni- American Experience. Harvard Uni- versity). The Vienna Paradox. New versity Press, March 2004 Directions Press, May 2004 Howard Gardner (Harvard Grad- Richard Pipes (Harvard Univer- uate School of Education). Chang- sity). Viki: Memoirs of a Non- ing Minds: The Art and Science of Belonger. Yale University Press, Changing Our Own and Other November 2003

Bulletin Winter 2004 43 From the Archives

Penobscot Bay Expedition

At a meeting on August 30, 1780, Academy members voted to appoint “a Committee to confer with the Reverend and Honorable Corporation of the University of Cambridge upon pursuing measures to procure an accurate observation of the Solar eclipse in October next, in the eastern part of this State.” Harvard Professor and Academy Fellow Samuel Williams was put in charge of the expedition and later wrote an account in the first volume of the Academy’s Memoirs (1785):

“[I]t is but seldom that a total eclipse of the sun is seen in any particular place. A favourable opportunity presenting for viewing one of these eclipses on October 27, 1780, the American Academy of Arts and Sciences, and the University at Cambridge, were desirous to have it properly observed in the eastern parts of the State, where, by calculation, it was An illustration of Baily’s beads printed in the Academy’s Memoirs (1785). expected it would be total. With this view they solicited the government of the Commonwealth, that a vessel might be Williams’ account includes what probably was the first prepared to convey proper observers to Penobscot-Bay [now description of Baily’s beads (named for British astronomer Maine]; and that application might be made to the officer Francis Baily, who, in 1836, noted the light effect produced who commanded the British garrison there, for leave to take during an eclipse by the uneven surface of the moon). Some a situation convenient for this purpose. fifty years earlier, Williams had written: “Immediately after “Though involved in all the calamities and distresses of a the last observation, the sun’s limb became so small as to severe war, the government discovered all the attention and appear like a circular thread, or rather like a very fine horn. readiness to promote the cause of science, which could have Both the ends lost their acuteness, and seemed to break off in been expected in the most peaceable and prosperous times; the form of small drops or stars; some of which were round, and passed a resolve, directing the Board of War to fit out the and others of an oblong figure. They would separate to a small Lincoln galley to convey me to Penobscot. . . . distance: Some would appear to run together again, and oth- ers diminish until they wholly disappeared.” “We took with us an excellent clock, an astronomical quad- 1 rant of 2 / 2 feet radius. . . , several telescopes, and such other apparatus as were necessary.”

Photograph of Baily’s beads, taken in 1995 from Dundlod, India, using a high-quality 4-inch aperture refractor telescope. The telescope was mount- ed on a motorized equatorial tripod, which allows the telescope to track the Sun. Photograph © 2004 by Fred Espenak, www.MrEclipse.com.

44 Bulletin Winter 2004 Norton’s Woods, 136 Irving Street, Cambridge, Massachusetts 02138 telephone 617-576-5000, fax 617-576-5050, email [email protected], website www.amacad.org academy officers

Patricia Meyer Spacks, President Leslie Cohen Berlowitz, Executive Officer Louis W. Cabot, Vice President Emilio Bizzi, Secretary John S. Reed, Treasurer Steven Marcus, Editor Martin Dworkin, Vice President, Midwest Center John R. Hogness, Vice President, Western Center advisory board

Joan Bok, Jesse Choper, Denis Donoghue, Jerome Kagan, Steven Marcus, Jerrold Meinwald, Guy Nichols, Patricia Meyer Spacks editorial staff

Alexandra Oleson, Editor Phyllis S. Bendell, Director of Publications Daniel J. Penrice, Contributing Editor Janet Foxman, Assistant Editor Debra Stern, Layout & Design Initial design by Joe Moore of Moore + Associates Bulletin Winter 2004 Issued as Volume lvii, Number 2 © 2004 by the American Academy of Arts & Sciences

The Bulletin, Proceedings of the American Academy of Arts & Sciences, (issn 0002–712x) is published quarterly by the American Academy of Arts & Sciences. Periodicals rate postage paid at Boston ma, and additional mailing offices. Postmaster: Send address changes to Bulletin, American Academy of Arts & Sciences, 136 Irving Street, Cambridge ma 02138.

The views expressed in the Bulletin are those held by each contributor and are not necessarily those of the Officers and Fellows of the American Academy of Arts and Sciences. photo credits

Steve Rosenthal: inside front cover Martha Stewart: pages 1, 2, 3, 4, 6, 7, 20, 33, 34 top image, 35, 38

Wendy Barrows: page 11 John Harrington: page 30, first, second, and fourth images; 32 Jim Block: page 31, second image New York Times: page 31, third image UC Berkeley, Institute of Governmental Studies: page 31, fourth image Jason Lyons: page 34, bottom image Laurel Hungerford: page 36 Shira Peltzman: page 37, top two images Rice University: page 37, middle right image Andrew Ross: page 37, bottom image