Sunday, September 30, 2007
Posted by Jeff Lipshaw
I've started but not finished a wonderfully creative piece by my colleague, friend, and office next door neighbor, Jessica Silbey (left), The Mythical Beginnings of Intellectual Property Law, forthcoming in the George Mason Law Review, but it was only this morning that I reached back to the very infancy of my academic life, and concluded that what was old is new, and, I suppose, vice versa.
If I may grossly oversimplify, Jessica's ambitious thesis is that utilitarian (read: economic) theories of intellectual property law do not fully account for its importance. She posits a narrative significance to creativity, supported by intellectual property rights, as a form of the "origin myths" or "origin stories" (I think of Horatio Alger, or George Washington and the cherry tree, or Abraham smashing the idols) that serve as models for human behavior and give meaning to our lives.
There is an inescapable link between my first dive into academic rigor as undergraduate some thirty plus years ago in the vibrant history department at the University of Michigan, and Jessica's call for narrative. I still recall the graduate student instructor (my long time friend Andy Achenbaum) in the first session of the small section of my first U.S. history course describing the paper requirements, and telling us that we should think of them as "legal briefs." As I had no idea what a good history paper nor a good legal brief looked like, it was not, at the time, particularly helpful advice. But I know now that all scholarship, implicitly or explicitly, makes an argument linking data through some structure or process of theorization.
The hot topic back then (mid-1970s) was the call to import social science methodology into historical analysis, as a (or the) way of making that argument. Another of my professors, Robert F. Berkhofer, Jr., had then recently written a book entitled A Behavioral Approach to Historical Analysis, a call to employ historiographical methods that pierced through the possibility of myth-making by understanding the roles of actors and interpreters in the writing of history. It was a reaction to the interpretive or narrative nature of the study of history, which had no doubt as much to do with the time and place of the narrator as it did of the actors. (The example I recall most vividly was that Arthur Schlesinger's The Age of Jackson seemed to import a fair amount of the The Age of Roosevelt, reflecting as much the author as the subject.) That is, to what extent were historians writing history, versus writing the Great Stories?
I was separately, and for my own purposes, trying to construct what had happened to Berkhofer's thesis about social science methods in history, and did a Google search this morning. I came upon a review, authored by Thomas Haskell at Rice, of Berkhofer's 1995 book, Beyond the Great Story: History as Text and Discourse (Harvard University Press, 1995). (The review is "Farewell to Fallibilism: Robert Berkhofer's Beyond the Great Story and the Allure of Post-Modernism," 3 History and Theory 347 (1998)). Now, I have not read the book, only the review, but it serves my point here just as well. The review was devastating, but, despite my fond memories of my time with Professor Berkhofer, I have to admit I was sympathetic to its point, which was essentially this: there's nothing like the reaction of the disappointed absolutist (read: Berkhofer the behavioral theorist) who despairs of his theory, and proceeds from rigorous causal explanation to a rejection of all theory with no stop in between for the possibility that life (read: history) is too complex either for algorithmic solution or complete deconstruction.
From our door post discussions, I suspect that Jessica herself has little patience for my meta-thinking about how academic or practicing lawyers think in models. But it seems to me that the same unresolved (and if Haskell is to be believed - and I think he is - unresolvable) issues of historiography, the perseverance of the old antinomies like explanation and understanding, of empiricism and intuition, prevail in the legal briefs we want to write as legal academics. This paragraph of Haskell's review of Berkhofer stopped me in my tracks:
The lamentable inadequacy of the so-called "modernist paradigm" turns out to be that it will not reduce to an algorithm. On [Berkhofer's] account, the normal paradigm makes of historical inquiry a fallible project, the crucial features of which cannot be embodied in any set of explicit instructions, or be carried out in any fixed mental mode. It requires of its practitioners that they be nimble enough to shift mental gears as the intellectual terrain varies and to juggle alternative modes of thought, which may pull in different directions. They must even dare to make judgment calls, with no guarantee of being right and every prospect of being criticized. Rather than declaring history to be purely an art or purely a science, the conventional paradigm assumes that historical inquiry, like life itself, displays elements of both. Indeed, it assumes that the mental repertoire of the historian differs in no deep, fundamental way from that of common sense, which is eclectic through and through. This strikes Berkhofer as intolerably messy and methodologically promiscuous, a project bound to fail because it naively encourages crossbreeding between different species of thought.
So here's a toast to the "intolerably messy" and the "methodologically promiscuous" as reflected in Jessica's new piece, at least as it stands as a humanities approach in contrast to the prevailing social scientism of the legal academy. And to more crossbreeding between different species of thought.