Holy Hobby Lobby II: It's All for the Best?

So, back in 2005, Laurence Tribe had, after finishing volume I of an updated version of his seminal treatise American Constitutional Law, (which I bought, by the bye, even though I had graduated from law school 15 years prior) decided to get out the constitutional treatise biz, essentially because the path of constitutional law had become such a muddied, turbulent incoherent mess of conflicting visions as to be no more than Justice Brennan's "Counting to Five". That, Tribe thought, was not treatise-worthy. A legal treatise addresses a systematic body of law, and synthesizes it.

As someone who once wrote a book on the First Amendment described by my most perceptive reviewer as "Confessions of A First Amendment Hedgehog, I share his definition of what is treatise or even scholarship worthy, but was not ready to consign American constitutional law to that category.

Well, Burwell v. Hobby Lobby isn't a constitutional case, but I am starting to see Tribe's point. As I suspected, "if it tips in favor of the employees, it'll be a narrow opinion on RFRA grounds, possibly limited to closely held corporations, with very strong dissents..."

The opinion should be read, as should the two dissents, by Justice Ginsburg and by Justice Breyer.

The majority opinion, and Justice Kennedy's concurrence, base their reasoning on three prongs:

1. Under RFRA, a for-profit corporation is a "person" the religious faith of is entitled to protection:

Finally, HHS contends that Congress could not have wanted RFRA to apply to for-profit corporations because it is difficult as a practical matter to ascertain the sincere “beliefs” of a corporation. HHS goes so far as to raise the specter of “divisive, polarizing proxy battles over the religious identity of large, publicly traded corporations such as IBM or General Electric.” Brief for HHS in No. 13–356, at 30.

These cases, however, do not involve publicly traded corporations, and it seems unlikely that the sort of corporate giants to which HHS refers will often assert RFRA claims. HHS has not pointed to any example of a publicly traded corporation asserting RFRA rights, and numerous practical restraints would likely prevent that from occurring. For example, the idea that unrelated shareholders—including institutional investors with their own set of stakeholders—would agree to run a corporation under the same religious beliefs seems improbable. In any event, we have no occasion in these cases to consider RFRA’s applicability to such companies. The companies in the cases before us are closely held corporations, each owned and controlled by members of a single family, and no one has disputed the sincerity of their religious beliefs.

There. It's "unlikely" that this will go beyond closely held corporations--which employ up to 53% of Americans--even if that ungrounded assumption is correct.

2. In the case of a closely-held corporation, the religious belief of the corporation may be deemed that of its owners;

3. Any legal requirement that "substantially burdens the exercise of religion" by that corporation, must be justified by a "compelling state interest" and narrowly tailored--the equivalent of constitutional strict scrutiny:

In Hobby Lobby, that meant that, although the Court "assumed" that a compelling interest supported the requirement that employer-provided insurance include contraceptive coverage, where such contraception ran counter to the religious beliefs of the corporation, the requirement was not narrowly tailored, and therefore flunked the test

Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement. But in order for the HHS mandate to be sustained, it must also constitute the least restrictive means of serving that interest, and the mandate plainly fails that test. There are other ways in which Congress or HHS could equally ensure that every woman has cost-free access to the particular contraceptives at issue here and, indeed, to all FDA-approved contraceptives.

Meanwhile, the Court wants you to know that not everything falls in favor of religion:

The principal dissent raises the possibility that discrimination in hiring, for example on the basis of race, might be cloaked as religious practice to escape legal sanction. See post, at 32–33. Our decision today provides no such shield. The Government has a compelling interest in providing an equal opportunity to participate in the work-force without regard to race, and prohibitions on racial discrimination are precisely tailored to achieve that critical goal.

Comfy now? No? Neither is Justice Ginsburg, whose dissent asks:

Would the exemption the Court holds RFRA demands for employers with religiously grounded objections to the use of certain contraceptives extend to employers with religiously grounded objections to blood transfusions (Jehovah’s Witnesses); antidepressants (Scientologists); medications derived from pigs, including anesthesia, intravenous fluids, and pills coated with gelatin (certain Muslims, Jews, and Hindus); and vaccinations (Christian Scientists, among others)?

Who knows? But under RFRA, as currently understood, for-profit corporations' statutory right to religious exercise trumps women's rights to care under the Affordable Care Act. Because corporations are so devout.

Legally speaking, this is nonsense upon stilts. As I pointed out after the oral argument:

The ultimate question, though, under the First Amendment or RFRA, is whether a corporation, an artificial entity created by the state to shield its owners from liability for debts contracted by the business, to enjoy perpetual life (and thus avert the problems businesses face when a principal dies), and to enjoy special tax privileges, can properly be treated as being the same entity as its owners for the purposes of religious expression rights. In other words, is this legal fiction to be treated as separate from its owners to their benefit in commercial transactions but as being one with them for religious purposes? And what of the well-rooted doctrine that the purpose of business corporations is to maximize return to shareholders, not to allow management to serve its own vision of the good with the shareholders' investment? (I'm not a fan of this rather bleak doctrine, but as Professor Bainbridge at the link notes, cultivating goodwill through socially responsible behavior may fall within the remit of the corporation). The point is, for-profit business corporations are separate from their owners, and not organized for religious purposes. If they are treated as vehicles for their owners' religious expressions, you are giving the owners a double advantage--shielding them from the worst risks of doing business while multiplying their ability to enforce their religious views on employees, clients and others.

Yup.

The only good news is that, RFRA being a statute, Congress can amend it. Of course, not this Congress, but someday. Huzzah!

So, how is this all for the best? It isn't, of course. Except for in the sense that it exposes the Court's stochastic, unreasoned approach to legal analysis in a way that doesn't permanently deform the legal landscape, if RFRA can be amended or repealed by a less theocratically inclined Congress.

And it vindicates Laurence Tribe's design to abandon making artificial sense of a those stochastic, ends-oriented opinions years after the event.

The End of the World

Today is the 100th anniversary of the assassination of Archduke Franz Ferdinand and his consort, the Duchess of Hohenberg, the first domino that fell leading to the chaos of the First World War.

Living as we do in the world formed not only by that convulsion, but by another twenty-five years later, it is very difficult for us to comprehend the shattering effect of that first war,the "war to end all wars."

We can experience the war only at second hand, through the literature of those who fought in it, or observed and knew those who had. (Carolyn R.C. Wilson's conspectus of much of the best literature regarding the war and its effects is helpful, and a fine piece of work for an honor's thesis.) David Cannadine created a serious and sustained piece of social and economic history that shows the effect of what he bluntly terms "Armageddon" for the old order in just one county, Great Britain.

The war ended four empires, and put the survivor, the British Empire, that it was living on borrowed time. The age of traditional hereditary monarchs was shattered, with the survivors figureheads or oddities. The Victorian Era, with its hubris, its optimism, its repression, its faith in technology and reason, its pride and complacency--at long last ended.

We live in a world that is a direct descendant of the post-World War I temperament, made even more jaded by the Great Depression, World War II, the Cold War and the decades since. We lack the certitude that the Victorians and their children, the Edwardians, had. In many ways, that is an unalloyed good.

And yet--there is a reason we keep returning to the pre-War world, a reason a why we visit its at once crueler and more optimistic shores. In the 1920s, it took Coué's autosuggestion to believe that "Day by day, in every way, I'm getting better and better." The Victorian ethos knew it to be true. No self-hypnosis was needed.

Even in the Heart of Darkness...

…an ember may flicker.



(Helen Mirren as Rand in "The Passion of Ayn Rand.")

Really:

Ayn Rand was all about objectivism, the philosophical system for the selfish, but she was, apparently, also all about cats.
She loved cats so much that she subscribed to "Cat Fancy" magazine and engaged in correspondence with them on March 20, 1966.

Mallory Ortberg of The Toast came across this letter in the book "The Letters Of Ayn Rand."

Here's the text:

Dear Miss Smith,

You ask whether I own cats or simply enjoy them, or both. The answer is: both. I love cats in general and own two in particular.

You ask: “We are assuming that you have an interest in cats, or was your subscription strictly objective?” My subscription was strictly objective because I have an interest in cats. I can demonstrate objectively that cats are of a great value, and the carter issue of Cat Fancy magazine can serve as part of the evidence. (“Objective” does not mean “disinterested” or indifferent; it means corresponding to the facts of reality and applies both to knowledge and to values.)

I subscribed to Cat Fancy primarily for the sake of the picture, and found the charter issue very interesting and enjoyable.

"What?" I hear you cry, "a story about Ayn Rand that doesn't involve an attack on her philosophy or her bizarre fixation on serial killer William Hickman, or her horrifyingly turgid prose and lame ideas that are disturbingly influential? (Cue John Rogers: "There are two novels that can change a bookish fourteen-year old's life: The Lord of the Rings and Atlas Shrugged. One is a childish fantasy that often engenders a lifelong obsession with its unbelievable heroes, leading to an emotionally stunted, socially crippled adulthood, unable to deal with the real world. The other, of course, involves orcs.")

Yes.

Rand, for all of her flaws, was sound on cats.

Still my least favorite author, still a philosopher who bent her considerable intelligence to aggrandize all our worst instincts, but--sound on cats.

It's something.

The Mirror Image

One of the interesting facets about Russell T. Davies's run on Doctor Who is the steady erosion of the Tenth Doctor's moral compass. He starts off in "The Runaway Bride," with the Doctor destroying the Rachnoss's children, flatly saying to her, "You did this." Tennant plays the Doctor as icy, unmoving, and sure of his rectitude. Even before the profound development that she undergoes in her travels, Donna is shocked by his attitude.



As the Doctor goes on, he grows in arrogance, until he views himself not as the one survivor of the Time War, but as its winner--entitled to do as he pleases, at his own whim, to decide the fates not just of "the little people," as he actually calls them, but of heroes:



The Time Lord Victorious is the Doctor manipulating events to suit his will, not unlike his own nemesis the Master. And sure enough, when we next encounter the Master, he and the Doctor draw nearer still, opposite sides of the coin. Just as the Doctor has taken on the Master's arrogance and recklessness, so too the Master dies saving the Doctor:



Davies ends Tennant's tenure, and his own, by returning to the projected, but never filmed theme of what was meant to be Jon Pertwee's last episode, The Final Game. He does not, in fact, go as far as that story was intended to:

It would have revealed that the Doctor and the Master were actually brothers or the latter Time Lord was the former Time Lord's darker personality. This story originally ends with the Master's Roger Delgado incarnation sacrificing himself, then the Third Doctor regenerates.

Davies expressly rejected the "brothers" theory in The Sound of Drums, but consider a moment: the Doctor has seen his own darkness, and, in revulsion at his own arrogance, is prepared to die to stop the corrupted Time Lords under Rassilon destroying, well, everything. The Master makes the same choice, first telling the Doctor to "get out of the way," mirroring the Doctor's own prior warning to him.

It is hard to imagine a story that brings back the Master without undermining that ending, and though I have always enjoyed the character, I would hate for that to happen. Unless the integrity of the character development can be respected, and a new kind of story told, I'd prefer Moffatt leave the Master in peace.

Cast Party Soundtrack

When I was in the Mimes and Mummers (1984-'87, if you're keeping track), we had certain rituals at cast parties. One was the ritual performance of "Paradise by the Dashboard Lights," with all the men facing all the women.

Ham acting was encouraged--indeed, required--and there was no such thing as going over the top.

How young and (relatively) innocent we were then.

(Worst romantic "tip" anyone ever gave me, when I was a young, innocent freshman? "Go up to [Name Redacted] and ask to stand next to her fire. Then tell her Jimi Hendrix said that." Yeah. Try that, sometime. You have only your dignity to lose. And nothing whatsoever to gain.]

"Paradise" was, of course, written by Jim Steinman, who gave us this '80s classic:



Anyone having the vaguest clue what the hell (if anything) this song video is intended to convey, please share.

K? Thnx, bai!

(Edited to allow for the fact that the lyrics make sense; it's the video…)

On Reverting to Semi-Purism

So, last post, I spoke about the BBC series, The Musketeers, and admitted to enjoying the first episode, despite its significance divergence from Dumas.

And that was true.

But, two days later, I have to admit--well, it was ok. Just ok. But it was missing something, I couldn't place.

This analysis of the 1973 Richard Lester films helped me put it in perspective:

And part of what does is this: it appears to have been one of the only versions that managed the all-important trick of getting D’Artagnan right. Most prior filmic versions of D’Artagnan, including the Walter Abel, Don Ameche and Gene Kelly versions already discussed, relay his deeds during the story with various degrees of fidelity – and, as in the case of Gene Kelly, with compensating charm to cover whatever they do get wrong – but otherwise, completely miss who he is. They treat him as a generic swashbuckler, grinning in the face of danger, charming the ladies, and laughing as he humiliates the bad guys with superior swordsmanship.
***

The problem is, this isn’t precisely what Alexandre Dumas had in mind when he took the memoirs of the actual real-life D’Artagnan and used them as the springboard for his own fanciful narrative.

And that’s this: D’Artagnan is supposed to be a gifted but naïve kid living out a fantasy and having reality shoved in his face.

Trained to sword expertise by his father, D’Artagnan has also been mercilessly drilled on a personal philosophy certain to get any kid killed: to wit, do not brook even the most offhand insult, and fight duels with anybody who impugns your honor. It is the reason why he challenges a well-dressed, and at this point much more dangerous swordsman, Rochefort (Christopher Lee), over some casual mockery; and why he finds himself scheduled for three consecutive duels to the death, with three of the most dangerous people in town, within mere hours of his arrival in Paris. He thinks that’s the way he’s supposed to act. He’s living up to what his father expects of him.

Most film versions bury this aspect in favor of his heroism, giving us a D’Artagnan who is very much already a hero, a D’Artagnan who, even when knocked unconscious by Rochefort in the Walter Abel version, simply looks like a capable guy who fell to a baddie who had gotten the drop on him. Not this D’Artagnan. He is not up to it yet. The version written by George MacDonald Fraser and directed by Richard Lester is indeed full of slapstick (more on that, later), but it’s no mere gag when in an early scene D’Artagan grabs a rope and swings on it, intent on knocking Rochefort off his horse, but instead misses his foe completely and winds up looking like a fool. It’s the act of a kid who is not yet up to his self-image.

Similarly, in the scene where D’Artagnan meets the Musketeers for the serial duels, the dynamic between them is for the first time in this compendium played for the point intended by the author. First, we get one of Dumas’s grace notes: D’Artagnan helpfully offering his mother’s ointment to salve the old wound of the foe, Athos, who he’s here to fight to the death. It’s a moment of splendid naivete and tremendous good-heartedness on D’Artagnan’s part, and Oliver Reed as Athos plays the reaction perfectly: with surprise, a little leavening of his prior anger at the boy, and a commitment to the duel that, in the eyes of this reader of the book and watcher of the film, amounts to a private decision to let D’Artagnan off with a little wounding. After the subsequent fight with the Cardinal’s men, when D’Artagnan has proved capable of holding his own in a fight, it is about ten times more believable that the famous trio would take the young Gascon boy under their shared wing. Not only because he’s worth a damn, but because it would be a shame to let this kid worth a damn get himself killed before he amounts to something.

D’Artagnan’s inexperience manifests in other ways: his gullibility, the moment of startling clumsiness where he wreaks havoc in the office of an authority figure he wants to impress, the defiant speech he gives to Buckingham in order to make a dramatic exit just before he has to return with the shame-faced admission that he needs Buckingham’s help getting back to France.

Yeah, I agree with Adam Troy-Castro, on this, and especially on his analysis of the importance of the knockabout fighting style, which turns deadly serious at the very end:

But what happens in the course of the two films? D’Artagnan and his friends fight enemies in Paris, in the French countryside, and on the road to England…finally, at the end of the two films, arriving at the convent Milady de Winter has infiltrated,with her agents and the Cardinal’s men, to kill Constance. D’Artagnan arrives in Constance’s room minutes after Milady has strangled his great love to death. (To viewers previously unfamiliar with the story who had expected D’Artagnan to arrive in the nick of time, it is stunning.) Furious with grief, D’Artagnan races through the convent halls, his anger building…until he spots his old enemy, Rochefort.

The neophyte fights the master. And, for the first time, in almost four hours of film, a swordfight is choreographed in the old-Hollywood manner. It is one of the greatest swordfights in the history of film, two masters battling each other with a fury that belies some of the old movie duels whose combatants looked like they were trying to look pretty rather than kill each other. It is real and it marks the moment when D’Artagnan is exactly what he has thus far only pretended to be.

The BBC serial is fun; empty calories, but well acted and with some panache. But Michael York, Oliver Reed, Richard Chamberlain, and Frank Finlay, et al. were the real deal for me.

On No Longer Being A Purist

So, I have been a fan of Alexandre Dumas since I was a boy, and saw the Richard Lester/George MacDonald Fraser The Three Musketeers; when I was ten, my grandmother gave me a copy of the novel, and it was one of the first two "big boy" books I ever read (the other being The Memoirs of Sherlock Holmes).

So you would think I would hate the free adaptation of the novel the BBC is running, right?

Well, no. I'm not the purist I was, it seems.

I'm not sure why; I used to have no stomach for free adaptations, and grudge every variation from the vision of the original creator's vision. Although, in retrospect, Lester and Fraser were free enough, adding humor to Dumas's story, while following his plot line pretty closely.

I think that I originally saw "unfaithful" adaptations as just that; a breach of loyalty to the original. But now I see them as works on their own; variations, explorations, refinements, recastings, which should stand or fall on their own merits. And that's been true since the dawn of storytelling. Take the example of Oedipus; the basic narrative framework remains the same, from version to version--Aeschylus, Sophocles, Euripides--but within the broad scheme, incidents vary, characters play different roles.

The Musketeers is more free than most adaptations, but it's worth a whirl. After all, Dumas varied wildly from his own source material.

Returning to Blandings….

Peter O'Toole and Richard Briers in a 1995 adaptation of Heavy Weather are peculiarly cast, in one sense--O'Toole's combustible personality imparts a formidableness to the dotty Clarence, ninth Earl of Emsworth that the character as written lacks, and Briers doesn't at all match the physical description of his scapegrace younger brother, the Hon. Galahad Threepwood (short, trim, and jaunty), but he conveys the essence of the character quite well:

Galahad Threepwood was the only genuinely distinguished member of the family of which Lord Emsworth was the head. Lord Emsworth himself had once won a first prize for pumpkins at the Shropshire Agricultural Show, and his Berkshire sow, Empress of Blandings, had three times been awarded the silver medal for fatness, but you could not say that he had really risen to eminence in the public life of England. But Gally had made a name for himself. There were men in London – bookmakers, skittle sharps, jellied eel sellers on race courses, and men like that – who would not have known whom you were referring to if you had mentioned Einstein, but they all knew Gally. He had been, till that institution passed beyond the veil, a man at whom the old Pelican Club pointed with pride, and had known more policemen by their first names than any man in the metropolis.

Gally is, quite simply, Bertie Wooster with the I.Q. of Jeeves. Briers gets that.

Just as Sarah Badel gets that Lady Julia Fish is, while on the surface, charming and jolly, a far more menacing figure than her more overtly sinister sister, Lady Constance Keeble, the ordinary chatelaine of Blandings Castle. The fact that this production was produced by Verity Lambert, of Doctor Who and Rumpole of the Bailey fame, no doubt helped.

I first stumbled on the Blandings saga in high school, and they, not the Jeeves stories, were what sold me on Wodehouse. Galahad, in particular, became my favorite--debonair, good-hearted, sentimental, but cunning and rakish, too. So when the first season of a new BBC adaptation of the Blandings Castle saga aired, I was intrigued--and then, a little,disappointed, because they were adapting the early, pre-Galahad stories, which are in my opinion, a little flat. Now, I find that Galahad has been introduced, well--time for a watch.

But, I have to admit, Briers told the story of the hedgehog and the lazy French chef to perfection--and O'Toole's fraternal enjoyment of the well-worn story--well, they sold me. I hope the new series will, too.

Glencora and Hermione?

Via The Trollope Jupiter, an interesting article from the eminent scholar John Sutherland, writing in The Financial Times. He argues that the Barsetshire and Palliser novels are each flawed in the same way--"the two most lovable characters choose bad marriages," pointing to Lily Dale's rejection of Johnny Eames and that, in the Palliser novels, "Glencora – the spunkiest of Trollope’s ladies – does not marry the beautiful Burgo Fitzgerald and gives herself away to Plantagenet Palliser, whose true love, cynics might say, is a parliamentary bill for decimal coinage." (His statement that "the novelist to whom JK Rowling has always seemed to me closest is Anthony Trollope" is surprising, but not insupportable.)

Now, let me just disagree, most strongly here, with Professor Sutherland on this--not with his history, but rather with his implicit endorsement of an alt-Trollope universe in which Lily marries Johnny Eames, or Glencora runs off with Burgo, drawn from his explicit endorsement of future Harry Potter novels which bring Harry and Hermione together.

Trollope's love of his characters is well-known; their reality to him, as well, is well documented in his Autobiography. The fact that they made questionable decisions, or were confronted with bad situations in which no good decision was possible, is part of his genius. Let me explain. Forced marriages happened in the Nineteenth Century; the use of pressure to compel a woman to marry the suitor chosen by her family was a real historical event, which Trollope, despite his anti-feminist ideology, understood as a horror (see Lucinda Roanoke; I've often thought that Trollope's sympathy for his women characters, so in conflict with his more conventional ideas, warrants a feminist analysis). Glencora's and Plantagenet's union is one that is born in a violation of her autonomy.

And yet--

Trollope doesn't leave us there. It's rather like Soames Forsyte, who violates his wife Irene even more brutally, thinking that he is doing the right thing in "asserting his rights." Palliser is uneasy with this wife who does not love him, whose charm slowly works on him; he, like Soames, is keenly aware that something is dreadfully wrong. Unlike Forsyte, the glum, taciturn, politico's honor and his ethics lead him to do something extraordinary: He defers to his wife. He carves out a space for her autonomy, and places her concerns above his, damaging his political career, even rescuing Burgo from his gambling debts. Palliser recognizes that he owes Burgo something, places Glencora's interests above his own.

And yet there is no happy ending. The couple grow closer and closer but when Glencora dies, her promotion of her daughter's romance with an "unsuitable" young man is felt by Palliser as a rejection of their years together, as an assertion that she should have stuck to her guns and run off with Burgo. And, in one sense, it is.

And yet--

Glencora did come to love Plantagenet--their relationship was real, even when they squabbled. It's just that the original tragedy was never exorcized because it could not be. The harm was done, the wound inflicted. All Plantagenet's efforts could not undo it. Their marriage was both tragic and triumphant.

It's a very complex view of the world, one which Trollope did not articulate in discussing women's issues, but one which he clearly felt--all the cross tides and eddies of feeling--love, and anger, and affection, and resentment all mixed in together.

The marriage of Glencora and Plantagenet Palliser provides far more rich a stew for the reader than any "love conquers all" escape with Burgo would. I know nothing like it in Victorian British fiction--particularly when as it is placed in the same sequence as the tragedies of Lucinda Roanoke and of Emily Wharton--outside of The Tenant of Wildfell Hall.

Which has, of course, no bearing on Harry and Hermione.

The Case of the Legal Interpreter

Today, the Seventh Circuit Court of Appeals, in an opinion by Judge Richard A. Posner. in Klinger v. Conan Doyle Estate, Ltd., affirming Judge Ruben Castillo's decision that Sherlock Holmes is, with the exception of any new character elements introduced in the last ten stories, published in the United States after 1923, in the public domain.

In a somewhat rollicking opinion, replete with casual diction (contractions in a Circuit Court opinion?), literary allusions (not just to the Holmesian canon, but from Shakespeare to Star Wars to Cagliostro--not surprising, given Judge Posner's longstanding interest in law and literature), the Court found that the mere fact that the last few stories remained in copyright did not mean that the character as a whole did--only distinctive additions to the characters found in those last few stories (the opinion gave the examples, provided by the Estate, of Watson's second marriage and Holmes's softened attitude in old age toward dogs--those of us who remember the quick disappearance of Watson's "bull pup" in A Study in Scarlet can at last rest easy).

How did the case arise? Well, since I'm dying to cite the admirably subtitled Guardian article, "Sherlock lives in public domain, US court rules in case of the heckled brand" (really, that is just a marvelous title, guys!), let it tell the story:

A US court has ruled that Sherlock Holmes – along with 46 stories and four novels he’s appeared in – is in the public domain, reaffirming the expiration of the copyright once owned by the estate of Scottish writer Arthur Conan Doyle.

The ruling by the seventh US circuit court of appeals in Chicago comes after the Doyle estate threatened to sue the editor of a book of original Holmes fiction if the author didn’t pay licensing fees.

Doyle’s estate contacted Leslie Klinger in 2011, when he was about to publish an anthology of original fiction starring Holmes, A Study in Sherlock: Stories Inspired by the Sherlock Holmes Canon. The estate demanded publisher Random House pay $5,000 in licensing fees for the use of the Holmes character.

Random House paid the fees, even though Klinger thought that the Holmes stories were in the public domain.

As Klinger was working on a sequel, In the Company of Sherlock Holmes, to be published by Pegasus Books and distributed by WW Norton & Company, the estate again threatened to sue Klinger and the publisher a licensing fee wasn’t paid.

“If you proceed instead to bring out Study in Sherlock II [the original title of In the Company of Sherlock Holmes] unlicensed, do not expect to see it offered for sale by Amazon, Barnes & Noble and similar retailers. We work with those compan[ies] routinely to weed out unlicensed uses of Sherlock Holmes from their offerings, and will not hesitate to do so with your book as well,” wrote Doyle’s estate.

This time, Klinger sued.

He said he wasn’t infringing on the 10 Holmes stories that remained under 95-year copyright protection….

The Court's reasoning strikes me as quite sound; the Estate acknowledged that, on their own, the vast bulk of the stories were in the public domain, having been published in the United States prior to 1923. It instead claimed that, because the Holmes and Watson of those stories were "flatter" and had not been fully developed until the last ten stories, the entire cumulative evolution of Holmes was protected.

Judge Posner responded with a double-barreled answer. First, he pointed out that nothing in law distinguished between "flatter" and "rounder" characters, and that, if the early Holmes and Watson were so flat as to be lacking in distinctiveness, why, then, they couldn't be protected. (A nice example of Morton's Fork, no?). Second, copyright is meant to be for a limited time; the Estate's reasoning would have the effect that:

The spectre of perpetual, or at least nearly perpetual (perpetual copyright would violate the copyright clause of the Constitution, Art. I, S 8, cl. 8, which authorizes copyright protection for only "limited Times") looms, once one realizes that the Doyle Estate is seeking 135 years (1887-2022) of copyright protection for the character of Sherlock Holmes as depicted in the first Sherlock Holmes story.

(Opinion at 15)

Along the way, the Court concluded that the Estate had not demonstrated that Klinger's collection would redound to the detriment of the originals, and even if they did, burlesque and parody can be protected fair use; in any event, the Court wrote, "it appears that the Doyle estate is concerned not with specific alterations in the depiction of Holmes or Watson in Holmes-Watson stories written by authors other than Arthur Conan Doyle, but with any such story that is published without payment to the estate of a licensing fee.” (Opinion at 14; emphasis in original)

As a writer who is playing with works in the public domain, I hope that I am adding something by reviving these characters--looking at them through a new century's eyes as the characters themselves approach a new century; I was motivated by the fact that Phineas's denouement seems to need another act, and that watching the shift to an age where privilege, whether intended to be exercised for the good of the governed (as by the Duke of Omnium) or for that of the governing classes (Trollope's view of those who resisted social change) is no longer unquestioned. To look at Trollope's world and characters in an era where the verities that underpin their virtues are under siege seems to me a compelling basis for stories.

Just as Mark Gatiss's & Steven Moffat's Sherlock made me see the Conan Doyle stories in a new light. So, for example, Conan Doyle's laconic lines in which Watson blandly states that "I have always held, too, that pistol practice should be distinctly an open-air pastime; and when Holmes, in one of his queer humours, would sit in an armchair with his hair-trigger and a hundred Boxer cartridges and proceed to adorn the opposite wall with a patriotic V. R. done in bullet-pocks, I felt strongly that neither the atmosphere nor the appearance of our room was improved by it" are funny, but our appreciation of the good Doctor's sang-froid increases when the reality of the thing is demonstrated in modern-day London:



These re-tellings, additions and adaptations do not detract from the originals; one can ignore the bad ones, embrace or at least enjoy the good ones, and always return to the original in which, as Vincent Starrett long ago wrote:

But there can be no grave for Sherlock Holmes or Watson … Shall they not always live on Baker Street? Are they not there this instant, as one writes? … Outside, the hansoms rattle through the rain, and Moriarty plans his latest devilry. Within, the sea-coal flames upon the hearth, and Holmes and Watson take their well-won ease … So they still live for all that love them well: in a romantic chamber of the heart: in a nostalgic country of the mind: where it is always 1895.

Grazie, Eminenza

I sleep heavily in the country, and I am a poor dreamer--that is, I don't often have dreams that I remember, let alone that are amusing or vivid when I wake.

Last night, though, after a seafood feast with La Caterina and one of her sisters, I had a doozy.

I dreamed that I was asleep, and woken by music. Live music. I came to myself, at a gala where bishops and archbishops were walking past me, and a kindly Cardinal, clearly seeing I was at the right event (I was casually dressed; the lay people were in evening dress) extended a hand, beckoned me to a seat next to him, where, among a panoply of Roman Catholic dignitaries, including Pope Francis, I watched a performance of, of all things, Chess.

Somehow or other, I came adrift from my friend the Cardinal (Leo McKern, in Shoes of the Fisherman, I believe), and ended up in quiet area, where I resumed sleeping.

Until the lights came on, and actors moved in for the second act. One of them signaled me to move, before the big second act number got started.



I left, covering my inappropriate presence with a comic bit of business, and got a good laugh. Several actors thought I was a directorial innovation, and congratulated me offstage.

And the band played on, as I resumed my seat with Cardinal Leone.

Just in time for the Endgame.



Seafood. Drags up the damnedest things from the subconscious. And too much musical theater in my youth, clearly.

(Pope Francis couldn't have been kinder, by the way, and Cardinal Leone was excellent company. And I clearly need therapy.)

Musings from a County Dock

So la Caterina and I are down in North Carolina, from whence she hails, and we're staying at her sister's beautiful home on a lake. We came down for a family funeral, and I was once again reminded of how remarkably warm and embracing her side of our family is--the extended family, too, I mean; her two sisters and my brother-in-law and their children took me in from day 1. But the network of cousins, aunts, uncles, &c., found time, despite their grief, to make sure I was made very welcome.

So I'm writing this looking out on a beautiful lake, far from home, and yet feeling quite at home.

Meanwhile, I'm waiting for CreateSpace to finish re-formatting revisions to Phineas at Bay, and to finalize the book, and re-reading Antony Powell's Hearing Secret Harmonies, the last volume of his twelve-novel series, Dance to the Music of Time. After finishing Simon Raven's "Alms for Oblivion" series and the linked "First Born in Egypt" books, as well as the two linking novels The Roses of Picardie and September Castle (which occur between the two series; a good conspectus may be found here), I felt the need of a change--something similar in scope but different in tone. So I returned to Powell.

As I near the end of this epic re-read, I've noticed much that I missed the first go, probably because Powell's narrative verve just carried me along. Some have criticized the ending, with Widmerpool falling prey to the young mystic Scorpio Murtlock, but it actually makes sense, in my opinion. Widmerpool has always had a self-destructive streak (his Cold War activities, his tangling with higher-ranking officers during the war), as well as a streak that Stringham describes as "slavish" that first surfaces in the minor incident of a banana thrown by the prestigious Budd which accidentally hits Widmerpool. His reaction to Barbara Goring's pouring a full canister of sugar on him at a dance, his engagement to Mildred Haycock, and finally his marriage to Pamela Flitton, demonstrate an escalation of the tension between Widmerpool's will to power and his will to self-destruction. He survives each, but in HSH, we see that he is seriously undermined by Pamela's final act: her suicide during a tryst with American academic Russell Gwinnett. (This is also entirely in character for Pamela, who, we are told, is like a corpse during intercourse. In Books Do Furnish a Room, at the Fission Party, Pamela asks Nick Jenkinsif he's attended any funerals recently, remarks that she's just awaiting her own; Nick answers, conventionally enough, "Not imminent, I hope?" only for Pamela to reply "I rather hope it is." When Nick asks her "How are you enjoying political life?" she replies, "Like any other form of life - sheer hell." Her thanatos-drive is already in high gear, in short) Widmerpool's loss of his actually rather precarious balance after this, and the reckless rush toward power through the youth movement combine to his undoing--and yet he breaks free of Murtlock at the very end. It's a superb ending, really; Widmerpool's survival instinct may have been overpowered, but he wrests his freedom back by a quick, tough, act of will, and dies in an echo of his introduction.

Even the cameos are masterful. The borderline-sinister Canon Paul Fenneau, who warns Widmerpool off Murtlock, but yields to his insistence at being introduced and puts the two in contact, has a surprisingly charismatic presence--Jenkins himself feels it. Fenneau carefully balances his obligations to his "cloth"--that is, his Christian orthodoxy--with his esoteric interests, and firmly disapproves Murtlock's heretical view of harmony. (He seems to me, for what it is worth, to have a touch of occultist and vampire folklore scholar Montague Summers about him, the description Powell gives of him even matches photos of Summers.)

In re-reading HSH, I was reminded of just how good Colin Baker's performance is in the fourth installment of the 1997 adaptation of Dance. A smallish part, but admirably enacted.

I'm not quite done with Powell, yet; I have his memoirs and journals yet to go, and his pre- and post- Dance novels.

Edited to Correct reference to Pamela and Nick's conversation; my memory played me false on the specifics.
Edited also to correct the state I was in. North Carolina is where I have family; South Carolina is Conroy Country. My bad, and I do know the difference.

The Continuing Viability of the Book

One of the questions I get when people find out I'm independently publishing is "Sure? On Kindle, right? Or Nook?" (The more informed might add Smashwords, but nobody has, in fact). "But not a book book, right"

Wrong.

Phineas at Bay will be available in a paper book format thanks to the wonderfully helpful people at CreateSpace (seriously, even when I cause the problems, they're very good at straightening them out). And I wouldn't have it any other way. (Oh, well, I'll admit it; I wouldn't turn down a deluxe hardcover edition if the Trollope Society wanted to add to their publications list.) But, yes, I wanted Phineas to return to the world in his proper setting: a proper book.

And not just because it was Phineas, and a Trollope sequel, and set in the Nineteenth Century. No, it's because I believe that what Rupert Giles (Anthony Stewart Head) so perfectly articulates to Jenny Calendar (Robia LaMorte) is true of me and many other readers:

Jenny Calendar: Honestly, what is it about them that bothers you so much?
Giles: The smell.
Jenny Calendar: Computers don't smell, Rupert.
Giles: I know. Smell is the most powerful trigger to the memory there is. A certain flower, or a-a whiff of smoke can bring up experiences long forgotten. Books smell musty and-and-and rich. The knowledge gained from a computer is a - it, uh, it has no-no texture, no-no context. It's-it's there and then it's gone. If it's to last, then-then the getting of knowledge should be, uh, tangible, it should be, um, smelly.

Not that I don't enjoy my Kindle, and my Kindle app on my iPad; I do. Stuck in jury duty, and realizing the theological book I wanted to immerse myself in at long last is just too heavy going thanks to the ambient noise? No problem; conjure up the complete works of Conan Doyle, and immerse myself in Sherlock Holmes's gaslit London. Or want to read a new novel, but not sure I can use precious shelf-space for it? Ah, there it is.

When I did my Clinical Pastoral Education at New York Presbyterian, I met more than one patient, bored to tears, who just didn't realize that by installing a Kindle App on their iPad or even their phone they could instantly gain access to a world of books to make their time pass with some enjoyment. I swear to you, on at least two occasions, installing that free app was the greatest service I could have done.

So technology, as Buffy might say, "is of the good." and there are Jenny Calendars in the world, for whom the experience of accessing "texts" on a computer is superior to a book. I'm not one, but so what? Takes all types to make a world.

But count me in with Rupert.

In Memoriam Rik Mayall

I am very sorry to see that comedian-actor Rik Mayall has died, aged 56. He had a number of classic television programs, and guest spots on other shows (Lord Flasheart in Blackadder, to name but one.) He also enjoyed success in the theater.

But I have to admit my favorite of his projects was The New Statesman, the brutally funny, scathing takeoff of Thatcherism. As the perfectly-named Alan B'Stard, a corrupt, smug, libidinous, right-wing MP backbencher on the make, Mayall was the id to Ian Richardson's infamous Francis Urquhart, the ego of the same era.

The part was tailor-made for Mayall; as described by The Guardian:

In a series of what Marks calls 'almost psychoanalytic sessions,' they tried to find out what Mayall thought he was best at: 'I think,' says Mayall, 'I'm best at being unpleasant and looking crafty. And I didn't want to do another show where I pull faces and shout.'

But there are moments with B'Stard when the unmistakable pop-eyed spike-toothed face of the old Mayall shows through, and it's like suddenly seeing the rat behind the mask.

B'Stard is a new rich young Tory with no morals and - shades of the David Threlfall character in Paradise Postponed - a wife who's the daughter of the local Tory chairman, with a pedigree back to Edward II and B'Stard's Saphic [sic] secretary for a bed buddy.

Marks thinks that the comedy they have tried to evolve with Mayall, walking a knife edge between real and surreal, gives them the chance to deal with a lot of subjects that the Government would rather not dig into. B'Stard's private member's Bill to arm the police comes in the first episode, going out on Sunday - along with a chief constable who talks direct to God and a business agent who is played by a woman and will later turn into one.

And? And, says Marks, later - nuclear waste, the legal system, and Conservative members found in brothels.

It's being made as close to transmission as they can manage, with a live audience in the Yorkshire TV studios in Leeds, where the local young know Mayall better than their MPs - Denis Healey, Keith Joseph and Merlyn Rees.

They seem to be crowding in, maybe in the expectation of seeing the old Mayall, foul mouth and all. Which could also be why the IBA has made them schedule it at 10pm, though Marks and Gran decided straight off, no bad language.

The show was spectacularly offensive, Mayall over the top--and yet, in the high-octane 80s, it worked.

Only Rik Mayall could get away with trying to seduce Maggie Thatcher on Comic Relief:



Part 2:



Rest in peace, Rik Mayall. And thanks for many, many outrageously funny moments.

The Politics and Souls of the Pallisers

In his Autobiography, Anthony Trollope described himself politically:

I consider myself to be an advanced, but still a Conservative-Liberal, which I regard not only as a possible, but as a rational and consistent phase of political existence. I can, I believe, in a very few words, make known my political theory; and, as I am anxious that any who know aught of me should know that, I will endeavour to do so.

It must, I think, be painful to all men to feel inferiority. It should, I think, be a matter of some pain to all men to feel superiority, unless when it has been won by their own efforts. We do not understand the operations of Almighty wisdom, and are, therefore, unable to tell the causes of the terrible inequalities that we see—why some, why so many, should have so little to make life enjoyable, so much to make it painful, while a few others, not through their own merit, have had gifts poured out to them from a full hand. We acknowledge the hand of God and His wisdom, but still we are struck with awe and horror at the misery of many of our brethren. We who have been born to the superior condition,—for, in this matter, I consider myself to be standing on a platform with dukes and princes, and all others to whom plenty and education and liberty have been given,—cannot, I think, look upon the inane, unintellectual, and tossed-bound life of those who cannot even feed themselves sufficiently by their sweat, without some feeling of injustice, some feeling of pain.

He then went on to describe both conservatism and his own brand of liberalism:

This consciousness of wrong has induced in many enthusiastic but unbalanced minds a desire to set all things right by a proclaimed equality. In their efforts such men have shown how powerless they are in opposing the ordinances of the Creator. For the mind of the thinker and the student is driven to admit, though it be awestruck by apparent injustice, that this inequality is the work of God. Make all men equal to-day, and God has so created them that they shall be all unequal to-morrow. The so-called Conservative, the conscientious, philanthropic Conservative, seeing this, and being surely convinced that such inequalities are of divine origin, tells himself that it is his duty to preserve them. He thinks that the preservation of the welfare of the world depends on the maintenance of those distances between the prince and the peasant by which he finds himself to be surrounded; and, perhaps, I may add, that the duty is not unpleasant, as he feels himself to be one of the princes.

But this man, though he sees something, and sees that very clearly, sees only a little. The divine inequality is apparent to him, but not the equally divine diminution of that inequality. That such diminution is taking place on all sides is apparent enough; but it is apparent to him as an evil, the consummation of which it is his duty to retard. He cannot prevent it; and, therefore, the society to which he belongs is, in his eyes, retrograding. He will even, at times, assist it; and will do so conscientiously, feeling that, under the gentle pressure supplied by him, and with the drags and holdfasts which he may add, the movement would be slower than it would become if subjected to his proclaimed and absolute opponents. Such, I think, are Conservatives; and I speak of men who, with the fear of God before their eyes and the love of their neighbours warm in their hearts, endeavour to do their duty to the best of their ability.

Using the term which is now common, and which will be best understood, I will endeavour to explain how the equally conscientious Liberal is opposed to the Conservative. He is equally aware that these distances are of divine origin, equally averse to any sudden disruption of society in quest of some Utopian blessedness; but he is alive to the fact that these distances are day by day becoming less, and he regards this continual diminution as a series of steps towards that human millennium of which he dreams. He is even willing to help the many to ascend the ladder a little, though he knows, as they come up towards him, he must go down to meet them. What is really in his mind is,—I will not say equality, for the word is offensive, and presents to the imagination of men ideas of communism, of ruin, and insane democracy,—but a tendency towards equality. In following that, however, he knows that he must be hemmed in by safeguards, lest he be tempted to travel too quickly; and, therefore, he is glad to be accompanied on his way by the repressive action of a Conservative opponent. Holding such views, I think I am guilty of no absurdity in calling myself an advanced Conservative-Liberal. A man who entertains in his mind any political doctrine, except as a means of improving the condition of his fellows, I regard as a political intriguer, a charlatan, and a conjurer—as one who thinks that, by a certain amount of wary wire-pulling, he may raise himself in the estimation of the world.

Trollope gives his own political views to Plantagenet Palliser, as Duke of Omnium, in The Prime Minister.

The chapter is an interesting one, in part because it establishes the growing friendship of the Duke with Phineas Finn, who has, at the end of the preceding book, Phineas Redux, married the Duchess's confidante, Madame Max Goesler. By dint of that friendship, Finn and the Duke are thrown into closer contact, and gradually a friendship is formed.

Of course, the chapter is also problematic because Phineas's political views are, in this chapter, presented as somewhat more conservative than the Duke's. The fire-breathing radical of his two starring appearances is seemingly co-opted into the complacency of the upper class after having been accepted by it. It's only one line in a chapter, and I could have ignored it, as Phineas's other appearances in that novel and The Duke's Children are pretty characteristic of the man--but I felt that would be dishonest.

So Phineas at Bay is, in part, a story of finding one's way back to one's true self--and not just for Phineas. The Duke of Omnium, nearing his sixtieth birthday, the son of Phineas's old friend and rival Lord Chiltern, and even that old rascal the Rev. Joseph Emilius and the larcenous Lizzie Eustace are all confronted with the question that to me defines Trollope's best work:

Who am I, underneath the costumes and greasepaint of the roles I have played?