latest bulletin for nov8 v 2qxd · time: 5:30 p.m. wednesday, april 14, 2004 1880th stated meeting...

winter 2004

BulletinStated Meeting Report, Page 8

The Economic Outlook and Current Policy IssuesRobert E. Rubin

Stated Meeting Report, 2

Joyce, Leavis, and the Revolution of the WordDenis Donoghue

Stated Meeting Report, Page 22

The Independence of the Federal JudiciaryJudith Resnik, Danny J. Boggs, and Howard Berman

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

inside:

proceedings of the american academy of arts & sciences

vol. lvii, no. 2

american academy of arts & sciencesNorton’s Woods136 Irving StreetCambridge, ma 02138-1996 usa

telephone 617-576-5000facsimile 617-576-5050email [email protected] www.amacad.org

Monday, January 26, 2004

Symposium–Cambridge

“Have You No Sense of Decency?” McCarthyism50 Years Later

Speakers: Nathan Glazer, Harvard Univer-sity; Anthony Lewis, New York Times; andSam Tanenhaus, Vanity Fair

Location: House of the Academy

Wednesday, February 11, 2004

1878th Stated Meeting–Cambridge

“What’s the Point of Democracy?”

Speaker: Amartya Sen, Harvard University


Friday, February 27, 2004

Panel Discussion–Berkeley

“The Court and Congress”

Speakers: Philip Frickey, uc Berkeley, andGordon Silverstein, uc Berkeley

Comments by Neal Devins, College of Williamand Mary, and Nelson Polsby, uc Berkeley

Location: University of California, Berkeley

This event is part of the conference on “EarlWarren and the Warren Court: A Fifty-YearRetrospect,” co-sponsored by the Earl WarrenLegal Institute and the American Academy.

Wednesday, March 10, 2004

1879th Stated Meeting–Cambridge

“Voting with Dollars”

Speakers: Bruce Ackerman, Yale Law School;Barney Frank, U.S. House of Representatives;and Nick Littlefield, Foley, Hoag & Eliot llp


Tuesday, March 16, 2004

Understated Meeting–uc Irvine

“Reliable Information in a Democracy: A Case Study”

Speaker: Patrick Morgan, uc Irvine

Location: uc Irvine

Tuesday, March 30, 2004

Understated Meeting–Madison

“A Roundtable Discussion on Research and theWisconsin Idea”

Location: University of Wisconsin, Madison

Time: 5:30 p.m.

Wednesday, April 14, 2004

1880th Stated Meeting and Joint Meetingwith the Boston Athenaeum–Cambridge

“Einstein’s Clocks, Poincaré’s Maps: Empires ofTime”

Speaker: Peter L. Galison, Harvard Univer-sity


Time: 6:00 p.m.

Monday, May 3, 2004

Understated Meeting–Cambridge

“Contemplating Torture and Lesser Forms ofHighly Coercive Interrogation”

Speakers: Sanford Levinson, University ofTexas at Austin School of Law, and PhilipHeymann, Harvard Law School


Time: 5:00 p.m.

Wednesday, May 12, 2004

1881st Stated Meeting and 224th AnnualMeeting–Cambridge

“Bugs, Behavior, and Biomolecules: TheNaturalist’s Guide to the Future”

Speakers: May Barenbaum, University of Illinois at Urbana-Champaign; ThomasEisner, Cornell University; John G. Hilde-brand, University of Arizona; and JerroldMeinwald, Cornell University


Time: 5:30 p.m.

For information and reservations, contact Sheri Landry (phone: 617-576-5032; email:[email protected]).

Calendar of Events

Contents

Academy News

neh Grant 1

Winter Events 1

Challenges Posed by Newly Elected Members 2

Stated Meeting Reports

Robert E. Rubin 8

Denis Donoghue 12

Nathan Glazer’s Tributeto Daniel P. Moynihan 21

Judith Resnik, Danny J. Boggs,and Howard Berman 22

Academy Projects 33

Around the Country 36

In My Opinion 38

Nominating Committee Report 40

Forthcoming in Dædalus 41

Noteworthy 42

From the Archives 44

Bulletin Winter 2004 1

Music and light were the mo-tifs of two winter events recent-ly held at the House of the Acad-emy: a Stated Meeting and holi-day concert in early Decemberand a New Year celebration inJanuary to view a lighting sculp-ture on the Academy’s grounds.

On December 3, Academy FellowLewis Lockwood (Harvard Uni-versity) addressed the Academy’s1877th Stated Meeting on thetopic “Beethoven and His RoyalDisciple.” Over 250 people filledthe Academy’s auditorium tohear Lockwood speak about therelationship between Beethovenand his royal patron the ArchdukeRudolph (1788–1831), to whomthe composer dedicated over adozen works. Lockwood’s talk,which will be reprinted in theSpring 2004 issue of the Bulletin,included an analysis of the “Arch-duke” Trio, Opus 97, with musicalillustrations by the Boston Trio.The evening concluded with theensemble’s performance of theArchduke Trio in its entirety.

At a reception on the evening of January 15, Academy Fellows and guests gathered to view JohnPowell’s lighting installation in

Norton’s Woods. Powell spokeabout the sculpture, which usessodium- and mercury-vapor lightsources to create paths of lightacross the Academy’s grounds,and about the application of thescientific principles of color visionin his work. He told the group thathad gathered indoors to view theexhibition on a subzero eveningthat he was attracted to the Acad-emy’s site because he likes “theinterface between urban and ru-ral” that the House, the woods,and the surrounding neighbor-hood represent.

The Academy’s efforts to support younger scholars throughits Visiting Scholars Program (vsp) have received a majorboost from a National Endowment for the Humanities Chal-lenge Grant. The neh award, which must be matched on a 3:1 basis, will help the Academy raise $2.4 million in fundingfor Visiting Scholars in the humanities and related activities.Gifts to the Academy for the VSP can be used for the match.

Academy News

Now in its second year, the vspis providing much-needed careerdevelopment and research oppor-tunities for promising postdoc-toral scholars and junior faculty.Humanities scholars in the earlystages of their careers face enor-mous challenges in establishingthemselves professionally. Theacademic job market now gener-ates only one full-time, tenure-track position for every two newPh.D.s in the humanities; post-doctoral fellowships outside thesciences are in short supply; andjunior faculty are under pressureboth to publish original researchand to shoulder full-time teachingloads.

The vsp provides younger schol-ars working in the humanities, so-cial sciences, and science policy achance not only to pursue researchfull time for a year but also to inter-act with Fellows in Academy pro-grams and activities. These fellow-ships provide an important oppor-tunity to assist younger scholarsin advancing on the path to a ten-ured position. “The Academy isoffering postdoc opportunities ofthe most desirable kind,” says Da-vid Laurence, who as director ofEnglish programs for the ModernLanguage Association is responsi-ble for the mla’s studies of jobplacement for Ph.D.s in English.

The postdocs who have spent ayear in residence at the Academyhave responded enthusiasticallyto the program. As Joseph Entin, a postdoctoral scholar at the vsplast year, remarked: “The Acad-emy offers one of the most excit-ing opportunities available foremerging scholars to develop asthinkers and writers. The oppor-tunities to interact with Fellowsand to present our work at researchseminars provided wonderful oc-casions for intellectual discussionand critique, helping me to see my own work in a larger context.”Entin is now an Assistant Profes-sor of English at Brooklyn College.

Visiting Scholar Crystal Feimster,on leave this year from her post asAssistant Professor of History atBoston College, describes the ben-efits of the Academy’s programfor a scholar in a tenure-track job.Feimster says that securing out-side support was the only way thatshe could have taken a full year’ssabbatical at more than half-payto work on her book manuscript

Winter Events in Cambridge

Continued on page 39

neh Grant to SupportVisiting Scholars

Allison Eldridge, Lewis Lockwood, Irina Murisanu, and Heng-Jin Park

Lighting installation in Norton’s Woods

2 Bulletin Winter 2004

As a graduate student at mit twenty-some-thing years ago, I remember thinking it wasreally cool to be able to type my thesis using apublication-quality word processor and thento be able to send it to colleagues across thecountry using something called e-mail. Backthen, the network through which e-mail trav-eled was known as the darpanet, and it hadbeen created to facilitate research collabora-tions among government, industry, and uni-versities. Back then, only a few thousand peo-ple had access to this exciting new technology.Very few, if any, had any idea of its true poten-tial or how it was destined to evolve.

Today hundreds of millions of people use the Internet on a regular basis to send e-mail,search for information, pay bills, buy books,get the news, make reservations, downloadmusic, run businesses, or just chat with friends.Trillions of dollars of e-commerce are con-ducted over the Internet annually. The Inter-net is even used to manage critical national in-frastructure in sectors such as transportation,

Frank Thomson Leighton

As a mathematician and computer scientist,I have been privileged to be a participant inone of the most important and exciting tech-nological and sociological advances of ourgeneration. I am speaking, of course, of theInternet.

On October 11, 2003, the American Academy of Arts and Sciences welcomed its 223rd class ofmembers at an Induction Ceremony in Cambridge, Massachusetts. Mathematician and comput-er scientist Frank Thomson Leighton, chemist Carolyn R. Bertozzi, lawyer and philanthropistWilliam H. Gates, Sr., and literary scholar and critic Michael Wood addressed the audience,which also featured a performance by world-renowned operatic baritone Sherrill Milnes. Theirremarks appear below, in the order presented.

Challenges Posed by Newly ElectedMembers

banking, manufacturing, utilities, and nation-al defense.

The power of the Internet as a communicationsmedium is unprecedented in human history.Never before has it been possible for an indi-vidual or an entity to communicate with somany so easily and so quickly. The impact ofthe Internet on society will surely be a subjectfor 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 Internetconsisted of a single network in a single coun-try. Today the Internet consists of over fifteenthousand distinct networks that collectivelyspan nearly every country in the world. Thewires and fibers in these networks are con-nected, in a somewhat haphazard fashion, bymillions of switches that process trillions ofbits of data every second of every day.

In contrast to the growth of the Internet, theunderlying algorithms, protocols, and soft-ware that make the Internet work have notchanged all that much over the past twentyyears. It is truly remarkable that the technolo-gy developed decades ago to support a singlenetwork used by a few thousand people hasscaled to support thousands of interlinkednetworks used by hundreds of millions. It iseven more remarkable that the original proto-cols have proved to be robust enough to sup-port many unanticipated applications, not theleast of which are the World Wide Web andpeer-to-peer networks for file sharing. Someof the early pioneers of the Internet are mem-bers of this Academy, and they have made atremendous contribution to society.

There are problems with the infrastructure,however, and these problems are now threat-ening to become critical. Several of the prob-lems derive from the fact that the original In-ternet protocols were based on a foundation of trust. It was assumed that people would usethe Internet for the purposes for which it wasintended and that they would do nothing toharm the infrastructure or other users, eitherintentionally or by accident. There was a strongsense of community in which an individual us-er would not take actions to the detriment ofthe common good, even if such actions woulddirectly benefit that individual.

While such noble assumptions were fairly safein the collegial environment of the darpanetof twenty years ago, they have led to many ofthe vulnerabilities inherent in the Internet oftoday. Some of these vulnerabilities are wellknown. For example, who among us hasn’t


here today, that the Academy itself might pro-vide an ideal forum within which we can dis-cuss and confront this important challenge.With everything that has already happenedwith the Internet, it is sometimes hard to re-member that this is just the beginning. Manyexciting discoveries lie ahead. If the experi-ences of the past few years are any indicationof things to come, it will surely be an interest-ing journey.

been inundated with spam or had our comput-er infected by a virus or worm? Unfortunately,spam and the few well-publicized worm-basedattacks on the Internet infrastructure representjust the tip of the proverbial iceberg.

For example, it is well known that the famedSlammer worm that attacked the Internet ear-lier this year caused billions of dollars of dam-age and incapacitated several important net-works. Slammer infected hundreds of thou-sands of computer servers within a few min-utes of its release into the Internet. It is less wellknown that, despite all its damage, Slammerwas a relatively benign worm in that it had no“payload.” Slammer’s only function was toreplicate itself, and it was the mechanics ofthe replication that caused the damage. HadSlammer been specifically designed to causedamage, the outcome could have been farworse. And Slammer exploited just one of thethousands of vulnerabilities that are discov-ered in Internet-based software each year.

Other worms and viruses are more malevolent.In addition to using the infected computer as a host for self-replication, they also cause thecomputer to perform an Internet-based attackof some kind. For example, the Code Red viruswas designed to attack the White House’s Webinfrastructure. The recent Blaster worm wasdesigned to attack Microsoft’s Web infrastruc-ture. In other cases, the virus or worm acts as aTrojan horse, leaving the infected computer ina vulnerable state that can be exploited later ina manner, and at a time, chosen by the attacker.

The perpetrators of Slammer, Code Red, theoriginal Blaster, and most every other virus andworm have not been caught. That is becausethe Internet protocols make it very easy tomask one’s identity by stealing that of anoth-er. For example, before releasing an onslaughtof unwanted e-mails into the Internet, a spam-mer will often hijack someone else’s Internetidentity and use that identity as the home basefrom which to send the spam. When investiga-tors try to detect the source of the spam, theyare led to an innocent bystander.

On the Internet, almost anyone can imperson-ate almost anyone else. Impersonation wasnever really contemplated when the darpa-net was designed, so no defenses were incor-porated to prevent it. The implications go wellbeyond spam. For example, there are manyways for a thief to steal credit card numbers,personal passwords, and many other sensitivedata that are commonly transmitted over theInternet. If a thief wants to learn the passwordto your online bank account, the thief simplydirects your computer or your Internet serviceprovider to send him or her all Web traffic des-tined for your bank. He can do this because itis relatively easy to trick a computer or the In-ternet into sending traffic to an unintendeddestination. When your browser contacts thethief instead of your bank, the thief respondsby showing you the regular bank web pagesthat ultimately invite you to sign in with yourpassword. You oblige, and the thief can nowaccess your bank account without fear of de-tection. I don’t know the precise figures on theamount of damage caused by e-crime annual-ly, but it is a large and rapidly growing problem.

As the Internet assumes a more critical role inour national infrastructure, it becomes evenmore important that we address the vulnera-bilities that have come along with the benefits.Today we worry about spam, viruses, and e-crime. Soon we will need to worry about thepossibility that a government or a terrorist willuse the Internet to attack critical infrastructure,with far more serious effects than an overflow-ing mailbox or a loss of money or confidential-ity.

The challenge we face is to continue to reapthe many benefits of a wonderful and remark-able technology while at the same time miti-gating the impact of its misuse. This is, ofcourse, not the first time that a technologicaladvance has had the potential to be used forgood as well as bad. In the case of the Internet,however, the challenge cuts across almost ev-ery sector of society. Governments must decidehow use of the Internet will be regulated, ifat all, and how liability for misuse will be as-signed. Academics must discover novel waysto make the Internet more secure at the samerate as they discover novel ways to make theInternet do more cool things. Industry mustwork harder to identify and eliminate vulnera-bilities before they are exploited. And each of the hundreds of millions of Internet usersmust themselves take greater care to preventtheir computers from being compromised andused for destructive purposes.

I can’t help but think, given the diverse andextraordinary collection of talent represented

As the Internet assumes amore critical role in ournational infrastructure, itbecomes even more impor-tant that we address the vulnerabilities that havecome along with the benefits.

Carolyn R. Bertozzi

As a chemist who studies biological systems,I represent a rapidly growing group of inter-disciplinary researchers who seek to under-stand biology at the level of atoms and mole-cules. We call ourselves chemical biologists.

I am also a movie buff. One of my all-timefavorites is The Fantastic Voyage, a classic fromthe 1960s in which a group of scientists andtheir spacecraft were miniaturized for a jour-ney through the human body–an “innerspace” no less cosmic or mystical than the gal-axies and nebulae of outer space. These luckyscientists directly witnessed the organs andtissues that sustain us; they literally navigatedvital processes, such as breathing and diges-tion, that we take for granted every day. Whatwould those scientists have seen if they couldhave been shrunk further, to the size of a sin-gle molecule traveling along the surface of aliving cell?

Jonathan Swift is quoted as saying “Vision isthe art of seeing things invisible.” In the pastdecade or so, technologies derived from phys-ics, engineering, and chemistry have revolu-tionized the biological sciences by bringingthe invisible to light. During my own career, Ihave witnessed a dramatic convergence of the


physical and biological sciences. Biology isnow considered a frontier to be explored withtechnologies originating from quite differentfields, including condensed matter physics,aerospace engineering, and even the semicon-ductor industry.

Two recent Nobel Prizes underscore the im-pact of physical techniques in the biologicalsciences: one in physics, for the superconduct-ing magnets that made possible magnetic res-onance imaging, and another in chemistry, forthe X-ray crystallographic study of ion chan-nels, the proteins that transduce electrical sig-nals in the body. Other technologies have nowmade it possible to visualize single cells withina complex tissue, and even single moleculeswithin living cells. Suddenly, we have the toolsto visualize chemical changes in the brain dur-ing the formation of a memory, the moment offirst contact between a virus and its victim, themoment of conception. What we have learnedhas revised our scientific thinking in radicalways, and has also reminded us that we are stillonly scratching at the surfaces of biologicalphenomena.

The ability to study single molecules in actionhas produced some particularly startling re-sults. In the past, molecules could be studiedonly as a population; thus, it was unknownwhether individual molecules within an en-semble could possess different properties de-spite their chemical identity. We now knowthat a population presents only an idealized,most probable version of reality. Single mole-cules can exist in different states from those oftheir neighbors and adopt improbable contor-tions that are essential for their functions. Pro-teins can be seen “breathing,” dna “relaxing.”It turns out that individual molecules can havemoods as different as those of individual hu-man beings while retaining their molecularsimilarity.

My own work focuses on understanding thelandscape of cell surfaces, which have turnedout to be as variable as the terrain of our plan-

William H. Gates, Sr.

I need to open with a qualifying note. While Iam an officer of the Bill and Melinda GatesFoundation, my remarks here and elsewhereon the subject of estate taxation are made formyself and are in no way an expression by orfor the foundation.

As you are likely aware, I have spoken out forthe retention of the federal estate tax. I sup-pose some would wonder whether the repealor retention of a tax that is currently only amodest part of total federal revenues meritsdiscussion among the profound subjects thatconcern the membership of this organization.I suggest that the issues test some fundamen-tal national axioms and merit the thoughtfulinterest of serious citizens.

I will speak to three elements of the argument:fiscal impact, the rectitude of a tax on assetspassing to heirs, and progressivity.

Recently, the estate tax has contributed some$30 billion, which amounts to about 1 percentof federal revenues. However, there is generalagreement among folks involved in makingfinancial forecasts that this tax will become amajor element of federal revenue.

The growth of the wealth of our wealthiest cit-izens has been prodigious in recent years. It ap-pears that if one assumes a modest economicgrowth rate of 2 percent between 1998 and 2052,some $40.6 trillion will pass by inheritance; an assumption of a 4 percent growth rate willmean an aggregated inheritance of over $130trillion. These figures lead to an estimate, evenallowing for increased exemption amounts, ofannual average federal estate tax collections of$157 billion using the lower growth rate and of$752 billion using the higher rate.

One cannot help but wonder at the thinkingthat argues to forfeit this huge revenue streamat a time when the nation is accepting an an-

We have the tools to visual-ize chemical changes in thebrain during the formationof a memory, the momentof first contact between avirus and its victim, the moment of conception.

et. Cells communicate with each other by vir-tue of molecules displayed on their surfaces.Changes in those molecules can signify changesin the cell’s physiology, including the trans-formation to disease states such as cancer. We develop chemical technologies for probingthe types of molecules a cell displays and forrelandscaping those cells whose surface mole-cules are antisocial and will promote disease.Some interesting avenues for diagnosis andtreatment of cancer have come from this work.

Just as the cells in our body communicate viacell surface molecules, microbial pathogenssuch as bacteria and viruses can interpret ourcell surface code and exploit those moleculesto infect us. An example is Mycobacterium tu-berculosis, the bacterium that causes tb andkills more people each year than any other sin-gle infectious agent. This bacterium attachesto sugar molecules found on the surfaces oflung cells, an event that initiates infection. Byunderstanding the chemical details of thosesugars, we are hoping to craft new approachesfor treatment and prevention.

As the physical and chemical sciences lead usdeeper into the details of biology, we must notlose sight of the larger world around us. In sucha tumultuous time, it is an overwhelming priv-ilege to be engaged in scientific discovery andin academic pursuits in general. However, weshould not forget that academic settings permitthe flexibility to pursue scientific problems ofglobal significance. Many of these endeavors,such as anti-tb drug development, are notcommercially viable in private industry. Inchoosing systems for basic research, globalconsiderations should be part of the equation.

But fundamental scientific discovery–askingwhy and how–is not frivolous. Indeed, thesequestions represent the natural drive to makesense of our world. James Watson is quoted assaying, “We used to think our future was in thestars. Now we know it is in our genes.” As mycolleague Dr. Kate Carroll has noted, many ofthe qualities that make us human, such as hope,faith, determination, and love, remain geneti-cally unmappable and chemically undefined.Understanding the basis of humanity is an eter-nal challenge that crosses the disciplines ofthe arts and sciences. We should work hard to foster the spirit of exploration and discoveryamong young scholars and remind them thatthe mundane world visible to us now is justone face of a more complex, more elegant uni-verse that we still have no means to sense. Weshould show them the frontier and then followtheir vision.


nual federal deficit in excess of $400 billion.The word reckless comes to my mind.

At the same time, one cannot help wonderingfrom where and from whom this revenue willcome if this tax is repealed.

A central criticism of the estate tax is the viewof many that anyone who works hard and savesshould be able to leave the results of his laborto his family. As one irate caller to a talk showshouted, “What right has the government tosteal the money a man has worked hard to earnand save and which he wants to leave to hisfamily?”

Is there propriety in applying the taxing powerto a transfer from parent to child? My responseis simple: more harm than good arises fromlarge inheritances.

Do we not see that so very often, the relianceon a large inheritance is a disadvantage to anheir, who is deprived of any motivation tomake a constructive contribution?

“Wait!” cry the repealers. “This tax destroysparents’ motivation to work hard for the ben-efit of their kids.”

To which those of us who want to keep this taxsay, “Not true.” We have had this tax for near-ly one hundred years, and there is no evidencewhatsoever that it has diminished the urge ofour ambitious fellow citizens to create wealth.

Looking closer at this issue, few would arguefor eliminating all family inheritance. Eventhose of us who like the tax acknowledge thatat bottom, this debate turns on the question ofhow much should go to taxes and how muchto kids.

Any examination of a policy that turns onquantity requires getting some numbers onthe table. One can argue endlessly about whatsize estate should be exempt and what the rateof tax should be. I suggest that it is sensible tolook at where the present legislation is takingus. In 2009 the exempt amount will have gone

up to $3.5 million per person–$7 million percouple–and the rate of tax will have comedown to 45 percent. This is a reasonable set ofnumbers by which to look at the result in dol-lars. Here is how that formula would apply in afamily:

Are these remainder figures not enough? Oneresponse is that they are too much. Some crit-ics of inherited wealth point out that there aretwo fundamental goals for an organized socie-ty in respect to economic affairs: (1) creatingand protecting a system in which individualscan prosper and (2) making opportunity equalfor all. They go on to point out what a great jobwe in this country have done in respect to goalnumber one but how dramatically we havefailed at goal number two.

Moving on from the family inheritance issue,we need to look at the fairness of a tax that ap-plies to so few of our people–only 2 percent ofall those who die in any year, under the presentrules. As exemptions increase, it seems clearthat the percent paying the tax will get smaller.This is certainly the most progressive tax any-where. Can it be justified?

Focus on the folks at the $100 million level andup–people whose executors are going to haveto write really big checks. We need to analyzejust how you explain such a phenomenal accu-mulation of money.

No doubt the search for cause would discloseintelligence and hard work. But a deeper lookwould also disclose another fundamental fac-tor: being born in the United States–whatWarren Buffett refers to as winning the gameof ovarian roulette.

What is so special about place of birth? Firstoff, economists agree that the presence of astable market for goods and assets adds 30 per-cent to the value of everything. We have that.

Who is the biggest venture capitalist in the his-tory of the universe? No, he does not have anaddress on Sand Hill Road. He is a fellow wide-ly known as Uncle Sam, and he spends some

$96 billion every year on fundamental researchin universities and laboratories all over thiscountry. And what comes of this research?Well, for starters, how about things like inte-grated circuits, silicon microprocessors, thehuman genome analysis, the Internet–re-search results that are readily available to oursmart entrepreneur.

Experts calculate that this basic research gen-erates a 66 percent return. As Lester Thurowsays, “Put simply, the payoff from social invest-ment in basic research is as clear as anything isever going to be in economics.” Another mul-tiplier: economists tell us that 50 percent ofthe annual growth in our economy is a func-tion of the introduction of new technology.

So, again, how do people manage to get so richin this country? It is because the laws protectand the markets maximize value, and our science and technology keep producing newproducts and ways to get things done. The ex-istence of a working and stable market, and agovernment continuously and gratuitouslyinjecting new and useful science–topped offwith a work force of ingenious graduates fromeducations subsidized by our government–has produced an economy that is uniquely in-novative and robust.

The beneficiaries are not just the technologyentrepreneurs–oh, no. The effects accrue tothe building contractor, to the owner of a stringof grocery stores, to the Wall Street broker–toall who seek wealth.

Again, why is our hundred-million-dollar mil-lionaire so rich? Item number one: he is anAmerican. Warren Buffett says it, as usual, sovery well:

I personally think that society is responsiblefor a very significant percentage of what I’veearned. If you stick me down in the middleof Bangladesh or Peru or someplace, you’llfind out how much this talent is going toproduce in the wrong kind of soil. I will bestruggling thirty years later. I work in a mar-ket system that happens to reward what I dovery well–disproportionately well.

Can there be a serious question about the rec-titude of our society’s recovering from its mostsuccessful citizens a significant fraction of thefortune they leave at the time of their death?This society has made it possible for these menand women and their families to have an ele-gant life: first-class education, comfort, virtu-ally unlimited options about where to go andwhat to do, public acclaim. Society has a justclaim, and it goes by the name estate tax.

Estate

$7m

$10m

$20m

$50m

$100m

Amountof Tax

0

$1.35m

$5.85m

$19.35m

$41.85m

Rate of Tax

0%

13.5%

29%

39%

42%

To Heirs

7m

$8.65m

$14.15m

$30.65m

$58.15m

Can there be a serious ques-tion about the rectitude ofour society’s recovering fromits most successful citizens a significant fraction of thefortune they leave at thetime of their death?


Michael Wood

There is a young man in Martin Scorsese’sfilm Goodfellas who says, “As far back as I canremember, I always wanted to be a gangster.”As far back as I can remember, I always won-dered just what it is that literature does, even ifmost of the time I merely surrendered myselfto the enjoyment of whatever it was that it wasdoing. My few words here today are an attemptto say something about what literature doesand why we need it now more than ever. Wealways need it now more than ever, whenevernow is.

A little more than four hundred years ago, inEngland, Philip Sidney wrote “An Apology forPoetry” to defend literature against its ene-mies. He called it poetry, but he meant prettymuch what we now mean by literature: imita-tions of life, with imaginary people doing realthings, real people doing imaginary things,and, more rarely, imaginary people doingimaginary things. Poetry, Sidney argued, ismore philosophical than history and more his-torical than philosophy. It is neither too con-crete and particular nor too abstract andgeneral, but just right, like a certain famousbowl of porridge, although that was notSidney’s comparison.

Sidney was being playful, so we should nottake his aspersions on philosophy and historytoo literally. He was completely serious, how-ever, in his belief in the value of poetry, and he was anxious to distinguish it from what he called “tougher knowledges.” This is onephrase among many that make his old textseem so close to us. We too have our tougherknowledges and our more tender knowledges,although the words we most frequently use are hard and soft. Here is the question I wantto propose for your consideration, and to an-swer partially: How soft is soft knowledge? Issoft knowledge really knowledge at all? Maybeif it’s soft it isn’t knowledge.

than any other discipline or does nothing butdoubt. That would not be soft or tender knowl-edge; it wouldn’t be knowledge at all.

No, the point of imagining other people andother circumstances is not to dismiss or losefrom sight the present people and circum-stances, and it is not to scramble the bound-aries between fact and fiction–although crit-ics and scholars have been known to do thosethings. The point is to know what is the caseand what could be the case, and to know bothof these instances intimately: the first becausewe don’t have a choice, and the second becausewe are willing to imagine it and keep on doingso–well, more than imagine it. Literature isthe practice of living with what could be thecase–really living with it because it occupiesyour mind and your heart; it takes up your en-ergies and sympathies.

Is this knowledge? It is not secure knowledge,because part of the discipline of living withwhat could be the case is the steady conscious-ness that there could always be another case–another other case. But I do want to suggestthat this very consciousness is a discipline orcan be, and it is not an easy slipping from oneoption to the next. Every story has a story it is not telling, and if we listen, we can hear it in the silence. Not only can we guess what itmeans; we can also know what it knows. Wecan hear the kindness in the anger, the generos-ity in the rage, the certainty in the doubt, andthe hope in the very articulations of despair.

This is not all that literature knows, but itknows and teaches this well. The great criticWilliam Empson, moving easily from litera-ture to ordinary life, once wrote of “a generousscepticism which can believe at once that peo-ple are and are not guilty” as “a very normaland essential method.” “This sort of contra-diction,” he said, “is at once understood in lit-erature. People, often, cannot have done bothof two things, but they must have been in someway prepared to have done either; whicheverthey did, they will have still lingering in theirminds the way they would have preserved theirself-respect if they had acted differently; they

A colleague of mine, looking hard at a greatmodern painting–a vast abstract canvas byBarnett Newman–thought our usual criticaldemands were the wrong ones. What does thispainting mean, what does it represent, what isit trying to say? These questions, he felt, weregetting us nowhere. The question he wantedto ask was, What does this painting know?

This question has two immediate and veryinteresting implications: first, that a paintingmight know something that the painter didn’t,and second, that the painting probably knowsa lot that it is not going to tell us. Now, it seemsas if literature–plays, poems, novels, essays–must tell us what it knows because, after all, itcan talk, as painting can’t. But I think exactlythe same question can be addressed to a workof literature, and to good effect. Words speak,but words have their silences too, in ordinarylife as in literature.

It’s possible that the forms of the sonnet andthe villanelle know something–about love,loss, repetition, design, language, memory,longing–that the individual writers of son-nets and villanelles may not know, or that theforms know these things differently. It’s cer-tain that F. Scott Fitzgerald’s later short storiesknew more about the divided contents of hismind than Fitzgerald did. There is much to sayon this score, but today I’d like to concentrateon the other implication of the question. Whatdoes this work–play, poem, novel, essay–know that it is not telling us?

Of course the knowledge, told and not told, isgoing to be different in each individual case,and there is a sense in which we can’t general-ize about it. But we can generalize about thenotion of the not-told–the residue of knowl-edge that we sense to be in a work but that isnot made explicit. This tightens the screw ofour question, because we are now asking notonly if soft knowledge is real knowledge butalso what silent knowledge means to us. If oneopposite of soft is hard, the other is loud.

Literature–that is, both literary works and thestudy of literature–is often thought to special-ize in doubt; even the dogmatic Bertolt Brechtthought of himself as a “teacher of doubt.”Why do we think this? Because literature is allabout imagining alternatives, other lives, otherplaces–“the always possible other case,” asHenry James put it. And doubt is important toliterature, no doubt about it–but only becauseit is important to all forms of learning and un-derstanding. Without doubt there is no knowl-edge. More specifically, there is no sustainedknowledge without sustained doubt. So it can’tbe that literature really does more doubting

Every story has a story it isnot telling, and if we listen,we can hear it in the silence.Not only can we guess whatit means; we can also knowwhat it knows.


Sherrill Milnes

Sherrill Milnes preceded his remarks with a perform-ance of “Surely the Presence of the Lord Is in ThisPlace” by Lanny Wolfe, and Aaron Copland’s ar-rangement of the old American song “At the River.”

Singing does send a certain message–espe-cially those two beautiful pieces–but I do havea little story, if you will permit me to both singand speak. I have a relationship, in a strangeway, to the Academy; you will see what I meanat the end of the story.

My maternal third great-grandfather, MatthewLyon, was born in Wicklow, Ireland, in 1747.When he was thirteen, he stowed away on aship bound for somewhere in this area of theUnited States, not necessarily Boston. He wasdiscovered before the end of the trip, and thecaptain sold him as an indentured servant forthree years in Litchfield, Connecticut.

Time passed. He found his way to the GreenMountain Boys and served with Ethan Allenall through our Revolutionary War. He was in the battle when we took Fort Ticonderogaback from the British. In 1797 he was elected to Congress as the sole representative fromVermont and served until 1801. He never losthis Irish mouth; he was a rabble-rouser.

I recently finished the book John Adams by Da-vid McCullough, which is a wonderful tome–very thick, but fascinating reading. As far as Iknew, nothing in the book had any relation-ship to me–I was simply enjoying it and learn-ing more about our country. All of a sudden, I found myself reading that my third great-grandfather, Matthew Lyon–on the floor ofthe hall in Philadelphia where Congress washolding its meetings–spit in somebody’s face

are only to be understood by bearing both pos-sibilities in mind.” Transposing this thoughtto my theme, I would say that we need to hear,both for ourselves and for others, the story thatis being told and the story that is not beingtold, because we shan’t understand anything ifwe don’t.

for criticizing his politics. Lyon was an anti-Federalist. There were two parties then, theFederalists and the anti-Federalist JeffersonianRepublicans.

At any rate, there was a newly passed seditionact at the time, which was duly repealed someyears later–and Matthew Lyon was the firstperson to be indicted under that law. As Mc-Cullough notes, “He spent four months in afoul Vermont jail.” His friends paid a thousand-dollar fine, which was heavy back then. Some-how, he emerged out of jail as more of a nation-al hero and was immediately reelected to Con-gress. And perhaps to get even–not with JohnAdams personally, but with John Adams as thehead of a party or the head of the country–Matthew Lyon cast one of the deciding votesthat put Thomas Jefferson in office; poor JohnAdams served only one term. As you will recall,it was the only time in American history whenthe vice president ran against the president,because they were not of the same party.

I am not sure how Matthew Lyon would feelabout me being inducted into this Academyfounded by John Adams, among others–butthis third great-grandson is extremely thrilledand extremely honored.

© 2003 by Frank Thomson Leighton, CarolynR. Bertozzi, William H. Gates, Sr., MichaelWood, and Sherrill Milnes, respectively.

Current membership:

3,808 Fellows from 46 states

560 Foreign Honorary Members from 36 countries

The membership is drawn from 172 colleges and uni-versities, 143 educational and research institutions, 74cultural and artistic organizations, 171 businesses andcorporations, 34 foundations and charitable organiza-tions, and 14 government agencies.

Academy Membership Profile

Class of 2003:

181 Fellows from 22 states

29 Foreign Honorary Members from 9 countries

The new class is drawn from 146 colleges and universi-ties, 17 educational and research institutions, 16 busi-nesses and corporations, 3 foundations and charitableorganizations, and 3 government agencies.

Robert E. Rubin, a Fellow of the American Academysince 2001, is Chairman of the Executive Committeeat Citigroup, Inc.

Louis W. Cabot is Vice President of the Academyand Chairman of Cabot-Wellington, LLC. He hasbeen a Fellow of the Academy since 1958.

Louis W. Cabot

From the beginning of Robert Rubin’s careerat Goldman Sachs through his years of publicservice in the Clinton administration to hiscurrent position as chairman of the executivecommittee at Citigroup, Bob has been a majorfigure at the center of the American financialsystem. He once said that “public service is anessential calling for the well-being of America”and he carried out that responsibility with con-summate skill and integrity. In Washington,Bob guided the newly created National Eco-nomic Council as it oversaw and coordinatedeconomic policy making at the domestic andinternational level. As the seventieth secretaryof the treasury, he worked with both parties to achieve landmark legislation balancing thefederal budget. He was an aggressive advocate

for opening domestic and foreign markets totrade and for maintaining America’s commit-ment to multilateral financial institutions.Now, as chairman of the Local Initiative Sup-port Corporation, he continues his long-stand-ing efforts to foster business investments indepressed urban and rural areas.

When Bob resigned his position as secretary ofthe treasury, President Clinton said: “He builta spirit and a belief that we could actuallymake this economy what it ought to be for ourpeople. That will be his endearing achievement–along with the fact that everybody believedthat as long as he was secretary of the treasurynothing bad could happen.” I am proud to in-troduce Mr. Secretary, Robert Rubin.

Robert E. Rubin

Iwas asked to comment this evening on theU.S. economy and on some of the policy is-sues that we face. But I would like to start on aslightly different tack, which will quickly leadback into–and in my view usefully frame–this discussion.

The Economic Outlook and CurrentPolicy IssuesRobert E. RubinIntroduction by Louis W. Cabot

This presentation was given at the 1875th Stated Meeting, held in New York on November 3, 2003.


During my sophomore year in college, I took aphilosophy course from an elderly Greek pro-fessor who started each class by turning over awastebasket on top of the desk in front of theroom and then he used that wastebasket as apodium for his notes. To me that gesture sym-bolized the simplicity–in the best sense of theword–of this insightful man’s thinking. Theunderlying theme that I took from his year-long course, as he deconstructed philosopherafter philosopher, was that there is no prov-able certainty. When I mentioned this to myfather, he told me that he too had enrolled in a philosophy course at Columbia many yearsbefore, and that at the opening lecture his pro-fessor had also made the point that nothingcould be proven with certainty. At the end ofthe class, my father went up to the front ofthe room, banged on the hardwood table, con-cluded that the table existed, and dropped thecourse. I had a very different reaction. In theskeptical Harvard environment of that day,Professor Demos’s course crystallized a trainof thinking about certainty that has stayedwith me ever since and has enormously impor-tant ramifications.

If you accept the view that there is no provablecertainty–and that is the view of modern sci-ence–then you are quickly led to the conclu-sion that reality is complex and uncertain andthat decisions are about probabilities andtrade-offs.

I believe that only with that mind-set can a pol-icymaker–or for that matter someone runninga business or investing–thoughtfully come togrips with the immense uncertainties and com-plexities of the economic environment. In aneffort to capture that mind-set and to explorepolicy issues that I think will be central to our nation’s economic well-being in the yearsahead, I started working on a book about threeyears ago. The book, titled In an Uncertain World:Tough Choices from Wall Street to Washington, de-scribes my experiences from Washington andWall Street as well as discusses policy issues–but also investment and business issues–thatin my judgment are central to our future.

As you can tell from the book’s title, I believethat we are in one of those times when the eco-nomic outlook, which is always uncertain, isespecially uncertain. There are powerful, com-peting forces that will determine the econom-ic conditions in the years ahead, and what hap-pens will be enormously affected by the policychoices we make in the face of these compet-ing forces. Moreover, as the book describes,many of the policy issues we face are not onlysubstantively difficult but also politically dif-ficult. Unfortunately, at least in my view, the

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American people have too little understandingof most of these issues, and that makes the pol-itics of moving forward very tough and obfus-cation relatively easy. Our country would ben-efit enormously from a more economically lit-erate electorate.

To illustrate this very serious problem and itseffects, I remember once being in the Oval Of-fice with President Clinton and he said to methat one of his greatest regrets of his time inoffice was that he was never able–despite histremendous skills–to get the American peo-ple to better understand the benefits of trade,with the result that trade, which has disloca-tions that are keenly felt but benefits that aremore diffuse and less well understood, has re-mained a very difficult political issue. I alsoremember, and I describe this in the book too,that Diane Feinstein told me that in her 1994Senate campaign 42 percent of the people in aCalifornia poll thought their income taxes hadbeen increased by the 1993 deficit reductionprogram. In fact, that program increased in-come taxes for only the top 1.2 percent of tax-payers, but the distortion of the program byopponents had been so effective that a nearmajority in that California poll believed thattheir income taxes had been increased.

Let me now turn to a brief discussion of the eco-nomic outlook and the policy issues before us.

The 1990s were a remarkable period economi-cally–the longest expansion in U.S. economichistory, with high growth, low inflation, great-ly increased productivity, over 20 million newjobs in the private sector, and rising incomesacross the spectrum. Many factors contributedbut I don’t think there is any question that pol-icy was central and indispensable, especially adramatic change in fiscal policy but also a con-tinuation of trade liberalization and much else.However, as seems inevitable with extendedgood times, imbalances also developed duringthat period, including high levels of corporateand consumer debt, large current account defi-cits, a stock market that went to excess by con-ventional standards, and the development ofsubstantial excess capacity. Those imbalancescreated the virtual inevitability of a difficultperiod, though the difficulties were lessened

by strengths carried forward from the 1990s,including a low unemployment rate, high pro-ductivity growth, and a sound fiscal positionnow thoroughly dissipated. Moreover, at leastin my view, once the difficult conditions beganthe policy decisions in response to those con-ditions–leaving aside the Fed–were far fromoptimal with respect to minimizing the dura-tion and severity of the difficult period andwith respect to positioning the country for thelong term. Most fundamentally we could haveaccomplished whatever fiscal stimulative pur-poses we wanted with temporary stimulativemeasures, not tax cuts that had large costs andgreat deficit effects in later years, and the taxcuts would have been more efficient if theyhad been focused predominantly on low- andmiddle-income people who have the highestpropensity to spend. A greater jobs’ impactmight also have been possible through moreaid to state and local government for currentspending in schools, homeland security, infor-mation, and the like.

Looking forward, most Wall Street econo-mists feel that growth will be healthy throughthe second quarter of next year, due to accom-modative monetary policy and massive stimu-lus from defense, homeland security spending,and tax cuts–however badly those tax cutswere designed for that purpose. This forecastseems to me likely to be correct, albeit not cer-tain. And it is not clear whether this growth willbe accompanied by strong job growth, whichis important economically and politically. Inany case, assuming that this short-term fore-cast does turn out to be correct, the big ques-tion is, once a strong stimulus has worked itsway through the system by mid next year, doesthe recovery continue and become a sustain-able expansion or do we go back to a moresluggish economy?

I think the answer could readily go either way.What I would like to do now is to look at someof the risks that are relevant to that question–risks that even if we do enter a more sustainedperiod of growth could continue to overhangthe economy and pose an overall significantrisk for the longer term.

I focus on these risks not necessarily because Ihave a judgment as to their likelihood, althoughI do think they are serious, but because theyare either ignored or underweighted in almostall forecasts by economists, investors, and thelike–perhaps because they are not quantifi-able and therefore don’t fit neatly into mod-els–and because they pose policy challengesthat are absolutely critical to our economicfuture.

To start, the imbalances that I mentioned before for the most part have continued andsome have even worsened. Consumer debt isat roughly record levels as a percentage of theeconomy, and despite lower debt service dueto interest rates, it seems to me likely at somepoint to constrain consumption. Excess ca-pacity in the United States is still substantial,though the effect of that on investment couldbe balanced against the deterioration in thecapital stock from three years of low invest-ment. Very significantly, the current accountdeficit is at very high levels. That may not mat-ter for some time, but at some point, if not cor-rected, our currency is likely either to gradual-ly decline–which could be readily absorbed as an orderly adjustment–or to have a sharp

decline, which could hurt our economy throughhigher interest rates and possibly a lower stockmarket. The long-term fiscal mess now in placeadds to this risk of a sharp decline because ittoo can undermine foreign confidence in ourcurrency–especially in conjunction with ourlarge current account deficit. It increases thevulnerability to a diminution of foreign con-fidence because we have a large fiscal deficit to fund, and, while the explanation is compli-cated, the fiscal mess contributes to the size ofthe current account deficit.

Geopolitical conditions are obviously anothervery serious problem: Iraq, North Korea, theMiddle East conflict, nuclear proliferation, ter-rorism–all of this is very relevant to our econ-omy. In our administration, we had to deal firstwith the Mexican financial crisis and then theso-called Asian financial crisis. There is noquestion that strong American leadership wasneeded in order to deal with these matters butwe very quickly learned that we also had towork cooperatively with the rest of the worldif we were going to succeed. I believe that thesame is true with respect to today’s geopolit-ical challenges: leadership and true coopera-tive endeavor together are the keys to most ef-fectively achieving our purposes.

There is also a backlash against trade liberaliza-tion both in the United States and around theworld. When I was at treasury, I testified before

I believe that we are in oneof those times when the economic outlook, which is always uncertain, is especially uncertain.

Enormous and never end-ing deficits greatly reduceour flexibility in respondingto future emergencies–geopolitical or economic.


rates but it also promoted consumer and busi-ness confidence, as well as confidence in inter-national capital markets. All of this is describedin my book as part of what we call “the greatfiscal debate,” which has long raged in differ-ent forms and will be front and center for yearsto come.

Understanding the morass of the early 1990s,and then the sustained recovery, provides use-ful guidance in projecting the consequences oftoday’s fiscal position–never ending and sub-stantial long-term deficits that will get worsewith the passage of each year because of therapidly increasing retirement of the baby-boomer generation around the end of this de-cade. In the book, I go into a quantitative anal-ysis of the interest rate effects that these defi-cits are likely to have, but suffice to say for thisdiscussion that those effects are serious. Andthey could be far more severe if the marketscome to believe that the government may giveup on fiscal discipline and attempt to deal withits debt problem through inflation, and evenmore if they undermine foreign confidence inour currency. In addition, as I mentioned a fewmoments ago, our long-term fiscal morass canhave substantial adverse impacts on the moregeneral level of confidence of consumers andbusiness.

Finally, these enormous and never ending defi-cits greatly reduce our flexibility in respondingto future emergencies–geopolitical or eco-nomic. For example, our ability to respond tothe tragic attack of 9/11 with a massive defenseand homeland security effort without creatinga sharp upward spike in interest rates was pos-sible because of the large fiscal surplus that wethen enjoyed. Also, the capacity of the federalgovernment to perform the functions that theAmerican people desire of government will begreatly reduced by our future fiscal conditions.

All of this is an enormous threat to our futureeconomic well-being. When these effects mayoccur, however, is not predictable. As long asprivate demand for capital is relatively low–ashas been the case for the last three years–in-terest rates will be low and the markets will berelatively unlikely to look forward to long-termfiscal conditions. But once private demand forcapital becomes robust, that demand will col-lide with the government’s need to fund itsfiscal deficits, the markets will look forward tothe fiscal morass, and at some point the severethreats to our economy from our fiscal messare highly likely to become a reality.

To conclude, I focused this evening primarilyon risks because I believe that while our eco-nomic potential is strong, given the many ad-

ment environment. And protectionism wouldonly make matters worse. Consumers, interestrates, and inflation would suffer, competitivenations would be able to receive inputs to theirproduction processes more cheaply then wecould, and our trading partners would likelyretaliate. More flexible exchange rates in Chinaand Japan might help, but I suspect that thatlikely effect is overestimated. What would helpa lot would be more robust economies in Eu-rope and Japan. Unfortunately, neither area is likely to have anything more than modestgrowth, even after expected improvementnext year, and neither area seems likely to mein the near future to do enough to address thestructural issues that have led to sluggish eco-nomies.

There are a number of other significant risksand issues that I could discuss, but I would liketo wind up this discussion of risks with U.S.fiscal policy, our politically caused Achilles’heel. In January 2001, the bipartisan Congres-sional Budget Office projected a ten-year sur-plus of $5.6 trillion. Goldman Sachs & Co. afew weeks ago projected a ten-year deficit of$5.5 trillion. That is a deterioration of about$11 trillion, or allowing for adjustments forcomparability, about $9 trillion–and that isthe number to keep in mind. The 2001 and2003 tax cuts, assuming, as their opponentsargued, that those tax cuts scheduled to expirewill instead be made permanent, account di-rectly for roughly one-third of the $9 trilliondeterioration and over 50 percent of the $5.5trillion deficit itself, and indirectly for far morebecause those tax cuts act to undermine thefragile political consensus that existed aroundfiscal discipline.

On January 7, 1993, during the transition, thenew economic team met with President Clin-ton to discuss strategy to restore sustainedgrowth. Shortly into the meeting PresidentClinton said, “I got it–the deficit is a thresh-old issue,” and he opted for the politically dif-ficult path of restoring fiscal discipline to pro-mote recovery through lower interest rates.

Supply-side critics, like Newt Gingrich andDick Armey, said that tax increases involved inour 1993 deficit reduction program would leadto recession. Instead we had the remarkableeconomic conditions that I described a few mo-ments ago. That was due in part to favorableinterest rate effects and in part to somethingwe had not fully anticipated. In the minds ofmany people, the deficits had become a sym-bol of a much broader inability to manage oureconomic affairs, and so had damaged con-sumer and business confidence. Restoring fis-cal discipline not only promoted lower interest

the House Ways and Means Committee that notonly exports but imports were good, becauseof lower inflation and lower interest rates, tra-ditional comparative advantage theory, andcompetitive pressure on domestic industry tobe productive. A conservative on the commit-tee said that I was the first public official thathe could remember testifying to the benefit ofimports. Unfortunately, as I mentioned a mo-ment ago, the dislocations created by trade arehighly visible, and the benefits are diffuse andnot well recognized by the American people.That makes trade a very difficult issue politi-cally, and I think trade will be a major focus inthe 2004 election with both parties playing tothis issue. Moreover, the politics are now mademore difficult because the range of goods andservices subject to the pressures of trade hasexpanded enormously. It is not only tradition-al manufacturing but software development,processing, call centers, and now even legal re-search and investment banking research thatare being outsourced due to the new technol-ogies that create real-time connection acrossthe globe and to the hundreds of millions ofpeople now well educated in China and Indiaavailable to work at pay levels way below thosein the United States.

There is also the substantive question of wheth-er these new developments in any way changethe traditional case for trade liberalization. Ihave spent a fair bit of time discussing this withpeople I view as deeply thoughtful on thesematters, and they certainly believe the answerto that question is no–and that seems to mehighly likely to be right. However, since thedislocations have become much broader, great-er, and quicker, some believe there may be atime gap for adjustment–which correspondsto the more worried view some business peo-ple have–and a gap could have significant eco-nomic and political consequences. In any case,these developments place an even higher pre-mium on equipping our people to be produc-tive and competitive in the global economythrough a strong public education system,through effective retraining and placementassistance to address dislocations in our innercities, and through fiscal discipline to providelow interest rates conducive to a robust invest-

While our economic po-tential is strong, realizing that potential will dependheavily on the policy choiceswe make.


vantages we have in the economic arena, real-izing that potential will depend heavily on thepolicy choices we make. Unsound choices canlead to real difficulty, and I think we are on thewrong track on many important fronts. Thefirst requisite for making good policy choicesis to recognize the complexities and uncertain-ties inherent in the issues we face. A group asdistinguished as the American Academy ofArts and Sciences and dedicated to thoughtcan help promulgate that realization, as well as better public understanding of the issuesthemselves, as I hope my book will do on a verymodest scale. Though my focus has been onpolicy, it seems to me that investors and busi-ness people also need to be fully cognizant ofthese risks and need to try to find the right bal-

1.Robert E. Rubin (Citigroup, Inc.)

2.William T. Golden (New York, New York) andAndreas 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), andExecutive Officer Leslie C. Berlowitz

4.Jerome Bruner (NYU School of Law), David AlanHamburg (Cornell University), Fritz Stern (Colum-bia University), and Helene Kaplan (Skadden, Arps,Slate, Meagher & Flom)

3 4

ance between being aggressive to realize thebenefits, if conditions turn out to be favorable,and careful in order to weather difficult timesshould they occur. Our country has a historyof resilience in overcoming difficulties andmistakes, and on the theory that past is prelude,that, as well as our natural advantages, couldbode well for a good future, but it is going totake a lot of work by all of us to get there.

© 2003 by Louis W. Cabot and Robert E. Rubin,respectively.

21


The S. T. Lee Lecture in the HumanitiesJoyce, Leavis, and the Revolution of the WordDenis DonoghueIntroduction 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 theHouse of the Academy on May 14, 2003.

Denis Donoghue, a Fellow of the American Academysince 1983, is University Professor and Henry JamesChair of English and American Letters at New YorkUniversity.

Patricia Meyer Spacks is President of the Academyand Edgar F. Shannon Professor of English at theUniversity of Virginia. She has been a Fellow of theAmerican Academy since 1994.

Patricia Meyer Spacks

Denis Donoghue is a dear friend and a dedi-cated member of this Academy. He is also oneof the foremost literary critics currently writ-ing in the English language. Denis is a Univer-sity Professor at New York University, where

he holds the Henry James Chair of English andAmerican Letters. He has written over twentybooks, including Words Alone: The Poet T. S.Eliot, Adam’s Curse, Reflections on Religion andLiterature, and The Practice of Reading, for whichhe received the Robert Penn Warren/CleanthBrooks Award for Distinguished Scholarship.His most recent book, Speaking of Beauty, hasjust been issued by Yale University Press andwas previewed in the Fall 2002 issue of Dædalus.

No mere list of books suffices to suggest therange or the depth of Denis Donoghue’s ac-complishment. He appears to have read every-thing, to know everything, and to have some-thing to say about everything. What’s more,he says it with unfailing wit, elegance, and pre-cision. As you probably know already, Denis is Irish, which gives him an unfair advantage:everything he says sounds wonderful. But ev-

erything he says, generally, is wonderful. He’salways worth listening to. He has assumedsome unpopular positions in recent criticalwars, but he defends his positions with suchgrace and intelligence that it’s almost impossi-ble to disagree with him.

As I mentioned earlier, Denis is one of theAcademy’s most active members. He has beena Fellow since 1983 and serves as the Academy’srepresentative on the board of the NationalHumanities Center. He is also the chair ofthe Nominating Committee and cochair ofthe Academy’s Initiative on Humanities andCulture.

Next month Queen’s University, Belfast, willhold an international symposium in his honor.Tonight we are honored and delighted to haveDenis Donoghue with us to present the first S. T. Lee Lecture in the Humanities.


first gentleman: I do not thinkSo fair an outward and such stuff withinEndows a man but he.

second gentleman: You speak him far.

first gentleman: I do extend him, sir, within himself,Crush him together rather than unfold His measure duly. 2

The verbal murmuring from “fair” to “far” to“extend” is hardly worth the labor. As FrankKermode says in Shakespeare’s Language, “Thestruggle with the idea that in straining to praisehim the Gentleman has managed to diminishrather than to exaggerate Posthumus’s virtuesseems to be simply a waste of energy–evidence,perhaps, that there was a nervous excess ofenergy to be wasted.” 3 It’s not clear whetherKermode means a nervous excess of energy inthe Gentleman or in the play at large–an ex-cess that might have wasted itself in any char-acter but happens to start the wasting with theFirst Gentleman. In his chapter on Macbeth,Kermode refers again to “an excess of energy,”this time on Shakespeare’s part, resulting inverse “that sometimes makes so much troublefor itself,” complicating what might well havebeen simple (207). Jolas didn’t comment onthe First Gentleman’s lines, but presumablyhe quoted them to show that Shakespeare, likeJoyce in Work in Progress, was willing to exceedthe strict requirements of narration and des-cription and to give the language unlimitedfreedom. In one of the passages that Jolas quot-ed from the fifth act, Jachimo tells Cymbelineabout Posthumus

. . . sitting sadly,Hearing us praise our loves of ItalyFor beauty that made barren the swell’d

boastOf him that best could speak, for feature,

lamingThe shrine of Venus, or straight-pight

Minerva,Postures beyond brief nature, for condition,A shop of all the qualities that manLoves woman for, besides that hook of

wiving,Fairness which strikes the eye.

(Cymbeline, 5.5.160–68)

Denis Donoghue

I would like to raise two related questionsabout literary criticism. First, does it makesense to invoke, as a critical consideration, the“spirit” of a language–the English language,for instance, or the American language, orSpanish, French, or any other? If it does, is thisspirit to be construed essentially or historical-ly–that is, does it float free of its conditions,or is it found only among those conditions?Second, is it pertinent for a critic to maintain,literary evaluation being in question, that aparticular work of literature does or does notacknowledge the spirit of the language inwhich it is written? Does this matter? I’ll referto two occasions on which a critic apparentlyassumed that there is indeed a spirit of theEnglish language; that it has certain qualities,socially and historically acquired; and that thework in question is defective for having trans-gressed that spirit.

In September 1933 F. R. Leavis published inScrutiny a review of several items from Joyce’sworkshop and its vicinity: Anna Livia Plurabelle,fourteen issues of the journal transition (pub-lished by Eugene and Maria Jolas), Haveth Chil-ders Everywhere, Two Tales of Shem and Shaun,Eugene Jolas’s Language of Night, and Our Exag-mination Round His Factification for Incaminationof Work in Progress, ascribed to “Samuel Beckettand Others.” Leavis admired Ulysses–or atleast parts of it, notably the “Proteus” chapter,in which Stephen Dedalus walks along Sandy-mount Strand–but he had nothing warm tosay of Work in Progress, and he rejected the argu-ments in its favor put forward in the Exagmina-tion. He was particularly exasperated by Jolas’scontribution to that book–“The Revolutionof Language and James Joyce”–and by hisclaim that “in developing his medium to thefullest, Mr. Joyce is after all doing only whatShakespeare has done in his later plays, suchas The Winter’s Tale and Cymbeline.” 1 To en-force that claim, Jolas quoted three short pas-sages from the first act of Cymbeline and threefrom the fifth. From the first, he quoted a fewlines of conversation between “two Gentle-men,” in which one of them says that whilethe king is distressed by his daughter’s mar-riage, she has in fact chosen an incomparableman:

It is high talk, but Shakespeare’s first audiencesprobably took it in their stride. The style is for-mulaic, a standard version of hyperbole with a few local encrustations. A common memberof the audience was unlikely to ask himself thequestion an adept of conceits would linger on: precisely how the shrine of Venus could be lamed, or why Minerva is called “straight-pight.” In such passages, according to Jolas,Shakespeare “obviously embarked on newword sensations before reaching that haven

of peacefulness mirrored in the final benedic-tion speech from the latter play [Cymbeline]”(“Revolution,” 87). But Jolas didn’t recognizethat Shakespeare provided something for ev-erybody and gave the groundlings enough toget the drift of what was going on. Cultivatedmembers of the audience got, in addition, morethan enough verbal subtlety to stretch theirminds. The king himself is irritated with Jach-imo’s speech, but not because he can’t keep up with its intricacies. “I stand on fire,” he saysto Jachimo; “Come to the matter” (Cymbeline,5.5.169–70). It is hard to see why Jolas invokedthis speech to endorse Joyce’s procedures inWork in Progress, unless he thought that anyinstance of the ornate style in Shakespearewould help to make his case. Leavis rejectedthe comparison:

Mr. Joyce’s liberties with English are essen-tially unlike Shakespeare’s. Shakespeare’swere not the product of a desire to “develophis medium to the fullest,” but of a pressureof something to be conveyed. One insists, itcan hardly be insisted too much, that thestudy of a Shakespeare play must start withthe words; but it was not there that Shake-speare–the great Shakespeare–started: the words matter because they lead down towhat they came from. He was in the earlywanton period, it is true, an amateur of ver-bal fancies and ingenuities, but in the matureplays, and especially in the late plays stressedabove, it is the burden to be delivered, theprecise and urgent command from within,that determines expression–tyrannically.

1 Eugene Jolas, “The Revolution of Language andJames Joyce,” in Our Exagmination Round His Fact-ification for Incamination of Work in Progress (Lon-don: Faber & Faber, 2nd impression, 1961), 86–87.

2 Cymbeline, 1.1.22–27, in The Complete Works ofShakespeare, ed. Hardin Craig and David Beving-ton (Glenview, IL: Scott, Foresman, 1973), 1182.

3 Frank Kermode, Shakespeare’s Language (NewYork: Farrar, Straus, & Giroux, 2000), 265.

Does it make sense to invoke,as a critical consideration,the “spirit” of a language–the English language, forinstance, or the Americanlanguage, or Spanish,French, or any other?


of expression in words alike and different: surcease, success. These perceptions could beclaimed to have come, ultimately, from Mac-beth’s imagined inner life–but ultimately is a long way down. It is enough that the wholespeech is convincing as Macbeth’s.

I’ve said that the words come later, though in awriter of Shakespearean power not much later.The critic and psychologist D. W. Hardingmaintained that what distinguishes a creativewriter from other people is that the writerbrings language to bear upon expression at aremarkably early stage in the cognitive pro-cess. Ordinary people have feelings and lookabout for ways of expressing them, searchingpatiently (or not) among the words at hand,but creative writers bring the medium–theavailable words, grammars, and syntaxes–tobear upon the expressive need at the earliestpossible moment in its demand. In Experienceinto Words, Harding made the case most explic-itly in an essay on the poems of Isaac Rosen-berg:

Usually when we speak of finding words toexpress a thought, we seem to mean that wehave the thought rather close to formulationand use it to measure the adequacy of anypossible phrasing that occurs to us, treatingwords as servants of the idea. “Clothing athought in language,” whatever it meanspsychologically, seems a fair metaphoricaldescription of much speaking and writing.Of Rosenberg’s work it would be mislead-ing. He–like many poets in some degree,one supposes–brought language to bear onthe incipient thought at an earlier stage of its development. Instead of the emergingidea being racked slightly so as to fit a morefamiliar approximation of itself, and wordsfound for that, Rosenberg let it manipulatewords almost from the beginning, oftenwithout insisting on the controls of logicand intelligibility. 5

That is Shakespeare’s greatness: the com-plete subjection–subjugation–of the medi-um to the uncompromising, complex anddelicate need that uses it. Those miraculousintricacies of expression could have comeonly to one whose medium was for himstrictly a medium; an object of interest onlyas something that, under the creative com-pulsion, identified itself with what insistedon being expressed: the linguistic audacitiesare derivative. 4

Joyce’s style in Work in Progress seemed to Lea-vis to have taken a wrong turn. The interest in words and their promiscuous relations evi-dently came first: more and more possibilitiesof stratification and complication then pro-posed themselves. The organization that Joyceachieved in Work in Progress, according to Lea-vis, was “external and mechanical.” To justifysuch a procedure, Joyce would have had to have“a commanding theme, animated by someimpulsion from the inner life capable of main-taining a high pressure.” He had a sufficienttheme in Ulysses and the earlier books, where“the substance is clearly the author’s personalhistory and the pressure immediately personalurgency.” The historical particularity in thosebooks, Leavis said, “is explicit enough and it ishardly impertinent to say that Ulysses is clearlya catharsis.” But Leavis found no such themein Work in Progress. If one asks, he said, “whatcontrols the interest in technique, the preoc-cupation with the means of expression, in the Work in Progress, the answer is a referenceto Vico; that is, to a philosophical theory.”(“Joyce,” 195–196)

Leavis took for granted, in that review as else-where, that there is a before-and-after in ex-pression. What comes first in a great writer is acreative compulsion–silent, insistent, irrefut-able. The words come later, though in a writerof Shakespearean power not much later. Theapparent immediacy of the expression testifiesto the force of the “impulsion from the innerlife” that achieved its form in those words. Lea-vis’s assumption of the necessary sequence offeelings and words seems reasonable, but it is not decisive. The inner life is not the onlysource. Writers often discover perceptions inthe transactions of one word, image, or figurewith another–perceptions prompted by some-thing as fortuitous as an acoustic similarity.Macbeth’s “If th’ assassination / Could tram-mel up the consequence, and catch / With his surcease, success” may have come from hisinner life, but it is more probable that it camefrom Shakespeare’s feeling for the latencies

In another essay, entitled “The Hinterland ofThought,” Harding showed that certain pas-sages in Shakespeare–notably the “Pity, like a naked new-born babe” passage in Macbeth–reveal “not disorder but a complex ordering of attitude and belief achieved a stage earlierthan discursive statement” (182). The differ-ence between Harding’s theory and Leavis’s isnot immense, but it is a difference that issuesin Leavis’s rejection of Work in Progress. Leavisused his theory of creative sequence–the com-pulsion first, then the words–to make a com-prehensive distinction between Shakespeare’smethods and Joyce’s. Harding’s theory wouldmake it more difficult to enforce the distinc-tion, and might make it impossible, the tem-poral gap between feeling and words being inhis version nearly closed. An adequate accountof the difference would bring in William Emp-son’s meditations on ambiguity and on vari-ous examples of complex feelings expressedby their not being entirely or discursively spec-ified.

At this point in Leavis’s review, it becomesclear that he was not merely rejecting Jolas’scomparison of the later Joyce with the laterShakespeare; he was making a far larger criti-cal and cultural case. He started with the con-ditions that made Shakespeare possible:

He represents, of course, the power of theRenaissance. But the power of the Renais-sance could never so have manifested itselfin English if English had not already beenthere–a language vigorous enough to re-spond to the new influx, ferment and liter-ary efflorescence, and, in so doing, not lose,but strengthen its essential character. Thedependence of the theatre on both Courtand populace ensured that Shakespeareshould use his “linguistic genius”–he in-carnated the genius of the language–to theutmost. And what this position of advantagerepresents in particular form is the generaladvantage he enjoyed in belonging to a gen-uinely national culture, to a community inwhich it was possible for the theatre to ap-peal to the cultivated and the populace at thesame time. (“Joyce,” 199)

Such a culture, such a community, in Leavis’sview, no longer existed. “The strength of En-glish,” he claimed, “belongs to the very spiritof the language–the spirit that was formedwhen the English people who formed it waspredominantly rural.” When England was aconfiguration of villages and parishes, the peo-ple lived by mutualities of recognition (it wasLeavis’s theme, and L. C. Knights’s) that didnot, as a social norm, survive the IndustrialRevolution. Dickens is an equivocal figure inthis context: Dombey and Son finds both good

5 D. W. Harding, Experience into Words (NewYork: Horizon, 1964), 99.

What comes first in a greatwriter is a creative compul-sion–silent, insistent, irre-futable. The words comelater, though in a writer ofShakespearean power notmuch later.

4 F. R. Leavis, “Joyce and ‘The Revolution of theWord,’” Scrutiny 2 (2) (September 1933): 194.


and ill in the new railways. But “the modernsuburban world,” as Leavis called it, testifiesto an order that is gone, “and there are no signsof its replacement by another.” He continued,“The possibility of one that should offer a likerichness of life, of emotional, mental and bod-ily life in association, is hardly even imagina-ble. . . . If the English people had always beenwhat they are now there would have been noShakespeare’s English and no comparableinstrument” (222). Leavis’s conclusion wasrueful but not entirely dispirited:

At any rate, we still have Shakespeare’s En-glish: there is indeed reason in setting greatstore by the “word”–if not in the revolu-tionary hopes of Mr. Jolas and his friends.With resources of expression that would nothave existed if Shakespeare’s England hadnot been very different from his own, GerardManley Hopkins wrote major poetry in theVictorian Age. We have poets in our ownday, and James Joyce wrote Ulysses. For howlong a cultural tradition can be perpetuatedin this way one wonders with painful ten-sion. Language, kept alive and rejuvenatedby literature, is certainly an essential meansof continuity and transition–to what? (201)

Leavis felt that he must at least put the ques-tion forward and give the necessary evidence.

The spirit of the English language–the geniusof it–is the value to which Leavis appealed inrepudiating Work in Progress. Shakespeare issupremely its embodiment, and proof that thelanguage available to him was strong enoughnot only to survive the continental immigra-tions but also to thrive on them. If Jolas hadnot offered the challenge of a comparison ofJoyce and Shakespeare, I don’t think Leaviswould have risen to the occasion in that way.Jolas seemed to be claiming not that Joyce wasas great as Shakespeare but that Joyce’s methodin Work in Progress was comparable to Shake-speare’s in the last plays, and just as valid. Lea-vis, in reply, insisted that the spirit of the En-glish language necessarily took the form ofShakespeare’s mature plays and could not havebeen adequately fulfilled by any other mani-festation. In a sarcastic sentence, he brushedaside two linguistic ventures that seemed to beseriously on offer in 1933: “The ‘international-ization of language’ acclaimed by Joyce’s apos-tles is a complementary phenomenon to BasicEnglish; indeed, we note with a surprised andpleased sense of fitness that Mr. C. K. Ogdenhas shown an active interest in the Work inProgress” (198). Each of these inventions, Lea-vis implied, was mechanical, a mere device,lacking roots in a national culture. Each couldbe proposed only in default of the necessarycommunity of values and at a time when there

seemed to be a desperate reaching out forstratagems.

In the same number of Scrutiny in which thereview of Joyce appeared, there also appearedLeavis’s essay on Milton’s verse–an essay thatappealed even more explicitly to the spirit orgenius of the English language as a decisivecritical consideration. Leavis made appropriateacknowledgment to T. S. Eliot and John Mid-dleton Murry, and might well have thankedEzra Pound; these writers preceded him in theattempted dislodgment of Milton. His owncontribution to that end was his insistencethat Paradise Lost is for the most part charac-terized by “the routine gesture, the heavy fall,of the verse . . . the foreseen thud that comesso inevitably, and, at last irresistibly.” 6 Leavisquoted a passage from Book III and anotherfrom Book VI to enforce his judgment. But healso quoted, for praise and grateful contrast, apassage from Comus’s temptation of the Lady:

Wherefore did nature pour her bounties forth

With such a full and unwithdrawing hand, Covering the earth with odors, fruits, and

flocks,Thronging the seas with spawn innumerable,But all to please and sate the curious taste?And set to work millions of spinning wormsThat in their green shops weave the smooth-

hair’d silkTo deck her sons; and that no corner mightBe vacant of her plenty, in her own loinsShe hutched th’ all worshipped ore and pre-

cious gemsTo store her children with. If all the worldShould in a pet of temperance feed on pulse,Drink the clear stream, and nothing wear

but frieze,Th’ all-giver would be unthanked, would be

unpraised,Not half his riches known, and yet despised,And we should serve him as a grudging mas-

ter,As a penurious niggard of his wealth,And live like nature’s bastards, not her sons,Who would be quite surcharged with her

own weight,And strangled with her waste fertility;Th’ earth cumbered, and the winged air

darked with plumes,The herds would over-multitude their lords,The sea o’er-fraught would swell, and th’un-

sought diamondsWould so emblaze the forehead of the deep,And so bestud with stars, that they belowWould grow inured to light, and come at lastTo gaze upon the sun with shameless brows.

(lines 710–736, quoted in “Milton’s Verse,” 126–127)

Leavis regarded that passage as exhibiting “themomentary predominance in Milton of Shake-speare.” The verse, he said, is “richer, subtlerand more sensitive than anything in ParadiseLost, Paradise Regained or Samson Agonistes.”More specifically, “the texture of actual sounds,the run of vowels and consonants, with thevariety of action and effort, rich in subtle ana-logical suggestion, demanded in pronouncingthem, plays an essential part, though this is notto be analysed in abstraction from the mean-ing. The total effect is as if words as wordswithdrew themselves from the focus of ourattention and we were directly aware of a tis-sue of feelings and perceptions.” (127–128)

Colin MacCabe has interpreted this passage asindicating Leavis’s “distrust of words which intheir materiality prevent the experience of theauthor (life) shining through.” The passage,he claims, shows in Leavis the opposition be-tween the supposed truth of the voice and thealleged falsity of writing. 7 There are sentencesin Leavis’s essay that justify this interpreta-tion. Regarding the passage he quoted fromBook VI of Paradise Lost, Leavis said, “Miltonseems here to be focusing rather upon wordsthan upon perceptions, sensations or things,”exhibiting “a feeling for words rather than acapacity for feeling through words.” Further,“the extreme and consistent remoteness ofMilton’s medium from any English that wasever spoken is an immediately relevant con-sideration. It became, of course, habitual tohim; but habituation could not sensitize amedium so cut off from speech–speech thatbelongs to the emotional and sensory textureof actual living and is in resonance with thenervous system; it could only confirm an im-poverishment of sensibility.” (129–130)

It is also true, in both the essay on Milton andthe review of Joyce, that Leavis appealed to atime in English culture when speech was “apopularly cultivated art,” when people talked“instead of reading or listening to the wire-less” (“Joyce,” 200). But MacCabe doesn’t re-

6 F. R. Leavis, “Milton’s Verse,” Scrutiny 2 (2)(September 1933): 124.

7 Colin MacCabe, James Joyce and the Revolution ofthe Word (London: Palgrave Macmillan, 2nd ed.,2003), 78–79.

The spirit of the Englishlanguage–the genius ofit–is the value to whichLeavis appealed in repudi-ating Work in Progress.


mark that Leavis’s insistence on the creativeforce of English speech and English idiom waspropelled by his conviction that the spirit orgenius of the English language was there to beappealed to and that he knew what it was. Lea-vis did not anticipate Jacques Derrida’s invidi-ous contrast between the axioms of speech andof writing. He did not advert to logocentrism,nor did he question the privileging of voicewith its aura of personal presence. Milton wasculpable, in Leavis’s view, because the grandstyle he developed “renounced the English lan-guage, and with that, inevitably, Milton beingan Englishman, a great deal else” (“Milton’sVerse,” 130). Milton latinized, not only by writ-ing in Latin but also by trying to turn Englishinto Latin, cultivating “a callousness to theintrinsic nature of English.” Shakespeare su-premely incarnated the genius of the Englishlanguage. So, too, on a different scale, didDonne. Quoting a few lines from Donne’sthird satire–

. . . On a huge hill,Cragged, and steep, Truth stands, and he that will

Reach her, about must, and about must go;And what the hill’s suddenness resists, win

so;Yet strive so, that before age, death’s twi-

light,Thy soul rest, for none can work in that

night . . .

–Leavis commented, “This is the Shakespear-ean use of English; one might say that it is theEnglish use–the use, in the essential spirit ofthe language, of its characteristic resources”(133). He then quoted the lines in Milton’s“Lycidas” about the “stormy Hebrides”:

For so to interpose a little ease,Let our frail thoughts dally with false sur-

mise.Ay me! Whilst thee the shores, and sound-

ing SeasWash far away, where ere thy bones are

hurld,Whether beyond the stormy Hebrides,Where thou perhaps under the whelming

tideVisit’st the bottom of the monstrous

world . . .

Leavis maintained that while the words in“Lycidas” “are doing so much less work thanin Donne, they seem to value themselves morehighly–they seem, comparatively, to be occu-pied with valuing themselves rather than withdoing anything” (133).

If we go back to an early quotation from Lea-vis’s essay on Milton’s verse, we may be ableto connect his observations on Milton and on

Joyce in a way compatible with Colin Mac-Cabe’s interpretation, but without recourse to a Derridean emphasis. You will recall thatLeavis, praising the passage from Comus, said,“The total effect is as if words as words with-drew themselves from the focus of our atten-tion and we were directly aware of a tissue offeelings and perceptions” (128). I would inter-pret that sentence as saying more generallythat words as words, in any work of literature,should withdraw themselves–or should atleast seem to do so–and disappear among thefeelings and perceptions they have produced.That is the proper destiny of words–to dieinto the further human life they have created.It may be wise not to call this further life “pres-ence,” lest that word enforce a stronger onto-logical claim than we need.

Leavis’s assumptions appear to entail such a se-quence as this one. Since the invention of mov-able type, we start with graphic signs, wordson a page. (Manuscript is another question.)The reader construes these as signs of some-one’s speech and takes for granted voice, artic-ulation, and audibility. Inevitably, each eventof the speech is displaced by the next, while atissue of feelings and perceptions is forming inthe reader’s or the listener’s mind; and so onuntil the end of the speech, when every wordhas disappeared into silence. The best analo-gies for this process are performances of musicand dance. At the end, nothing remains but thesilence in which the experience of the workhas been, one hopes, resolved. The work canbe recovered now only by having the perform-ance repeated or a new interpretation disclosed.Partial recovery is possible by an act of one’smemory. I do not need to read again Yeats’s“The Folly of Being Comforted” to recall “The fire that stirs about her, when she stirs, /Burns but more clearly,” or Eliot’s “La Figliache Piange” to recall “Sometimes these cogita-tions still amaze / The troubled midnight andthe noon’s repose.” In that sense, not all of thewords have disappeared into silence. And inevery act of reading or listening there are dif-ferences of response. Sir Philip Sidney allowsfor these differences when he has Philisides, in the third book of The Countess of Pembroke’sArcadia, sing one of his songs, “As I my Little

Flock on Ister Bancke.” When the twenty-three stanzas are over, Sidney tells us that “Ac-cording to the Nature of dyvers Eares, dyversJudgmentes streight followed, some praysinghis voice, others the wordes, Fitt, to frame aPastorall style, others the straungenes of theTale, and scanning what hee should meane by yt.” And one listener, old Geron, accusesPhilisides of bad taste in telling a tale of “heeknewe not what Beastes at suche a Banquettwhen rather some Songe of Love or matter forJoyfull melody was to bee broughte forthe.” 8

That sequence, or something like it, is impliedby the kind of writing and reading that Leavisapproved. It follows that the scandal of Miltonand Joyce, in Leavis’s view, is that in their laterwork they resorted to uses of words that wouldnot withdraw. Milton’s words would not dis-appear–as speech does and should–into thesilence that surrounds them. That is what hislatinizing allegedly comes to. Joyce’s words inWork in Progress and, later, in Finnegans Wake aredevised in such forms that they cannot with-draw from the context they enforce. There isnowhere for them to go. They have to remainon the page in the graphic state of what Leaviscalled “words as words.” No wonder so manyof them defeat the attention of the elocution-ist and can be read only in the sense of beinglooked at.

Even in passages that reward reading aloud, weare often left wondering what the pleasure ofdoing so has entailed, as in this little passagefrom Jaun’s sermon to a group of girls: “I’ve ahopesome’s choice if I chouse of all the sinktsin the colander. From the common for igni-tious Purpalume to the proper of FranciscoUtramare, last of scorchers, third of snows, interrorgammons howdydos.” 9 It is possible tomake sense of this, as Fritz Senn has done, byarranging a loose assemblage of names in thevicinities of St. Ignatius Loyola and St. FrancisXavier. 10 But even if “in terrorgammons how-dydos” may be derived from a moment in theLitany of the Saints–te rogamus, audi nos–themain attribute of Joyce’s locution is its refusalto withdraw either into the litany or into the

8 Sir Philip Sidney, The Countess of Pembroke’sArcadia, ed. Albert Feuillerat (Cambridge: Cam-bridge University Press, 1926), 242. My attentionwas drawn to this passage by Lorna Hutson, “AnEarlier Perspective,” Times Literary Supplement, 30May 2003, 4.

9 James Joyce, Finnegans Wake (New York: Viking,1939), 432–433.

10 Fritz Senn, Joyce’s Dislocutions: Essays on Read-ing as Translation, ed. John Paul Riquelme (Balti-more: Johns Hopkins University Press, 1984),90–94.

You could also appeal to thespirit of a language by con-sidering what it might havebeen rather than what itturned out to be.


feelings and perceptions that the litany ex-presses. “The sinkts in the colander” may bededuced from “the saints in the calendar,” butit is hard to be assured that the deduction con-stitutes a new perception.

It may be thought that Leavis’s appeal to thespirit of the language is eccentric, but he wasnot alone in making it. George Eliot, in anessay on the natural history of German life,glanced at the project of constructing a univer-sal language:

Suppose, then, that the effort which has beenagain and again made to construct a univer-sal language on a rational basis has at lengthsucceeded, and that you have a languagewhich has no uncertainty, no whims of idi-om, no cumbrous forms, no fitful shimmerof many-hued significance, no hoary archa-isms “familiar with forgotten years”–a pat-ent deodorized and non-resonant language,which effects the purpose of communicationas perfectly as algebraic signs. 11

This supposed language would be fine for sci-ence, George Eliot conceded, but not other-wise for life, “which is a great deal more thanscience.” There is no substitute for historicallanguage:

With the anomalies and inconveniences of historical language, you will have partedwith its music and its passion, with its vitalqualities as an expression of individual char-acter, with its subtle capabilities of wit, witheverything that gives it power over the imag-ination. . . . The sensory and motor nervesthat run in the same sheath are scarcelybound together by a more necessary and delicate union than that which binds men’saffections, imagination, wit, and humourwith the subtle ramifications of historicallanguage. (225)

You could also appeal to the spirit of a languageby considering what it might have been ratherthan what it turned out to be. Gerard ManleyHopkins was in this sense a linguistic and cul-tural nationalist, sympathetic to the aims di-versely represented by William Barnes, GeorgeP. Marsh, F. J. Furnivall, E. A. Freeman, and R. C. Trench–grammarians and linguists whothought that English had taken a wrong turnat the Renaissance and had thwarted its geniusby welcoming indiscriminate continental us-ages (cf. Austin Warren, Rage for Order: Essaysin Criticism [University of Chicago Press, 1948],61–63). The founding of the Early English

Text Society in 1864 activated the question ofEnglish, its rise and perhaps its fall. Hopkinsimagined a better English having issued fromAnglo-Saxon, a modern language that wouldnot have been amenable, as Shakespeare’s En-glish was, to influxes from Latin, Italian, andFrench. He sympathized with Barnes (whoseOutline of English Speech-Craft was published in1878) and thought his project admirable exceptfor the certainty that it must fail. As he wroteto Robert Bridges on November 26, 1882:

Talking of chronologically impossible andlong words the Rev. Wm. Barnes, good soul,of Dorset-dialect poems (in which there ismore true poetry than in Burns; I do not sayof course vigour or passion or humour or alot of things, but the soul of poetry, which Ibelieve few Scotchmen have got) has pub-lished a “Speech craft of English Speech” =English Grammar, written in an unknowntongue, a sort of modern Anglosaxon, beyondall that Furnival in his wildest Forewordsever dreamed. He did not see the utter hope-lessness of the thing. It makes one weep tothink what English might have been; for inspite of all that Shakspere and Milton havedone with the compound I cannot doubtthat no beauty in a language can make up forwant of purity. In fact I am learning Anglo-saxon and it is a vastly superior thing to whatwe have now. But the madness of an almostunknown man trying to do what the threeestates of the realm together could never ac-complish! He calls degrees of comparisonpitches of suchness: we ought to call themso, but alas! 12

In much the same tones, Ezra Pound imaginedwhat a better thing the English language wouldbe if Shakespeare and the Elizabethan poetshad opened their ears to Cavalcanti rather thanto Petrarch.

The spirit of the language was not only an En-glish consideration. In 1899 Remy de Gour-mont published Esthétique de la langue française,a tribute to the spirit of the French languageand a plea that it should be kept up. There con-tinue to be such appeals. In Required Writingand the New Oxford Book of Modern Verse, PhilipLarkin celebrated Hardy as incomparably thegreatest twentieth-century poet in English–atribute that could only have arisen from hissense of the genius of the language as Hardy-esque and his conviction that the modernismof Pound and Eliot was alien to that genius andtherefore an aberration.

Hugh Kenner also proposed a distinction be-tween the spirit of the English language and

the spirit of the American language. In his es-say “Words in the Dark,” he maintained thatthe English language received its definitiveform and tone from its service to the Elizabe-than theater–an institution in which wordswere required to direct one’s imagination awayfrom the penury of the stage and its appear-ances. “There are potentialities in Chaucer,”Kenner said, “that have never been developed

since, chiefly because the English drama hadno use for them, and brought modern Englishto a working maturity without them.” The in-cantation of Marlowe’s writing for the stageencouraged the audience not to examine whatthey could see but to “dream away from thevisible.” They were to imagine Helen of Troy,not by looking at the painted boy who crossedthe stage, but by letting their minds inhabit forthe duration of the words the evening air and“the beauty of a thousand stars.” The sono-rousness of Donne’s “A bracelet of bright hairabout the bone” has the theater in its ears, eventhough the line of verse was not written to beperformed in that space. But the spirit of theAmerican language has no theater to escapefrom, no words to transcend the dark; it re-ceived its character from eighteenth-centurynecessities of pamphlet and sermon. It wasexpected to acknowledge visible things and to help in administering them. Franklin, notShakespeare, dominated its modes. There was no place for “majestic imprecision andincantation.” Kenner offered this distinctionbetween the spirit of English and the spirit ofAmerican in the hope of recommending to En-glish readers the poetry of Ezra Pound, H. D.(Hilda Doolittle), William Carlos Williams,Marianne Moore, and Louis Zukofsky–poetsexempt from the Shakespearean echo andtherefore free to make their words accompanythe trajectory of things seen. They were alsofree to practice not just imagism but transla-tion as well–to isolate “the poetic effects thatare not local and parochial, concocted out ofthe accidental sounds and colours of the lan-guage in which they are conceived.” 13 Englishreaders with Shakespeare in their ears should

11 George Eliot, “Natural History of GermanLife: Riehl,” in The Writings of George Eliot: Essays and Leaves from a Note-Book (Boston: HoughtonMifflin, 1909), 225.

13 Hugh Kenner, “Words in the Dark,” in E. V.Rieu, ed., Essays by Divers Hands: Being the Trans-actions of the Royal Society of Literature, new series,vol. 29 (London: Oxford University Press, 1958),122.

The spirit of the languagewas not only an Englishconsideration.

12 The Letters of Gerard Manley Hopkins to RobertBridges, ed. Claude Colleer Abbott (London: Ox-ford University Press, 1935), 162–163.


not expect to find in modern American objec-tivist poetry the incantations and reverbera-tions of “words in the dark.” Kenner’s furtherimplication was that American writers whodid not attend to the spirit of the American lan-guage–Wallace Stevens, notably, and WilliamFaulkner–did not know what they were doingand lost themselves in pastiches and mimicries.

These are instances of critics positing a spiritof a language and claiming that writers shouldact in an observant relation to it. Leavis im-plied that Joyce veered from such observance,perhaps because in Dublin, Paris, Trieste, andZurich he did not have an adequate nationalculture or a community to belong to. Presum-ably, he should have committed himself, asJoseph Conrad, Henry James, and T. S. Eliotdid, to the particles of an English national cul-ture that still remained, and made the best ofthem (though Leavis eventually came to believethat Eliot remained an American of dividedcreative loyalties and made his commitmentto the spirit of English only notionally and inquestionable faith). Conrad and James madethe most of their opportunities and found aplace for themselves in the great tradition ofEnglish fiction, along with Jane Austen, GeorgeEliot, and D. H. Lawrence.

Can one still appeal to the spirit or genius of a language as a critical value bearing on thisnew work or that? Linguists would not givemuch credence to the notion; they would re-gard Leavis’s appeal to the spirit of the Englishlanguage as a rhetorical gesture, the spirit be-ing merely a trope standing for art and culture.They would also regard as foolish the effort tocultivate words of one quality or origin ratherthan another. Some linguists of an older timethought that particular languages might becharacterized. Otto Jespersen fancied that En-glish and German are “masculine” and Frenchand Italian “feminine.” This seems a mystifica-tion. It is probably more reasonable to ascribegenius or spirit to writers and to think of a lan-guage as a medium and nothing more. But I amnot entirely convinced. Social scientists andcultural historians talk boldly about millen-

nia, centuries, generations, and decades–thetwenties, the sixties–as if those times couldbe delineated. They seem to feel no misgivingin attributing to such periods a zeitgeist towhich various adjectives may be appended.Personification is as rampant in these activi-ties as in Pope’s Dunciad. As soon as you argue,say, that English has certain qualities and thatFrench has other qualities–an argument thatConrad was not alone in making–you canhardly avoid making further distinctions, as if the languages distinguished were persons.Differences between historical or nationalEnglish and the dialect of Dorset (WilliamBarnes’s medium in many poems) can’t be ig-nored, nor can they be described in strictly em-pirical or statistical terms. Spirit and genius, asterms of invocation, don’t float higher abovethe rough ground than other words regularlyused: nation, race, culture, Renaissance, Europe.

I find no theoretical fault in Leavis’s attemptto support his critical values by appeal to thespirit or genius of the English language, if Ibear in mind that the device is rhetorical–de-signed to persuade–rather than probative. Theattempt becomes more controversial whenLeavis argues that the spirit of English is incar-nated in Shakespeare and Donne rather thanin Spenser and Milton; that it finds its life inthe Elizabethan theater or in language that isfamiliar with the theater, rather than in epicpoetry and pamphleteering; that it is at onewith speech and the idioms of actual life ratherthan with graphic forms dependent on printand publication; and that it has not survivedthe lapse of a national culture.

Leavis’s rhetoric was persuasive in the yearsbetween the two world wars, when Eliot toopresented English literature as predicated onShakespeare, Donne, George Herbert, and theJacobean dramatists. I think Leavis was alsojustified in correlating the power of English asan expressive and inventive medium with thecenturies in which English life was predomi-nantly rural. But that time is gone. If by a dis-tinctive modern literature we mean the trajec-tory from Baudelaire to Eliot, that was an affairof cities, and the provocative emotion was thefriction of urban life. Modern art did not arisefrom Dorchester or Mansfield Park but fromLondon, Paris, New York, Dublin, Trieste,Prague, and Vienna. Eliot appealed–in whatlinguists might regard as another mystifica-tion–to a larger cultural entity than the ge-nius of English: “[The poet] must be awarethat the mind of Europe–the mind of his owncountry–a mind which he learns in time to be much more important than his own privatemind–is a mind which changes, and that this

change is a development which abandonsnothing en route, which does not superannuateeither Shakespeare, or Homer, or the rockdrawing of the Magdalenian draughtsmen.” 14

Pound’s understanding of tradition was predi-cated on a still larger set of recognitions: select-ed acts in the cultures of Italy, China, Greece,and America. But neither Eliot nor Pound hadany aspiration toward the “internationaliza-tion of language” in the sense of Joyce’s Workin Progress and the journal transition. Eliot’s“Waste Land” and “Hugh Selwyn Mauberley,”and Pound’s Cantos, are poems in historicalEnglish, with phrases from foreign languagesbeing called upon to acknowledge that thereare other cultures in the world.

There is indeed a “story of English,” but it hasculminated in the proliferation of a languagethroughout the world that is primarily devot-ed to money and power. English is the domi-nant international language of politics, war,finance, aviation, professional sport, and tour-ism. In that sense it may be regarded as a cul-tural remnant of the Empire–but London isno longer the Empire’s center, and Westmin-ster and the bbc are not its emblems. Shake-speare as supreme embodiment of the geniusof the language has been dislodged, not byBroadway or Hollywood but by American tele-vision news programs and talk shows in theirrelation to the residue of common life.

What critical value, then, can we bring to areading of Work in Progress and its successor,Finnegans Wake, if these are scandals to Leavisand alien to the genius of the English language?Is Finnegans Wake a sport, the sole instance ofits kind, a source of pleasure for a few profes-sional readers, or a great work of English fic-tion? Northrop Frye thought that there werefour forms of prose fiction and that FinnegansWake was an example of an irregular but notunique fifth–a form “traditionally associatedwith scriptures and sacred books, [it] treatslife in terms of the fall and awakening of thehuman soul and the creation and apocalypseof nature.” He wrote, “The Bible is the defini-tive example of it; the Egyptian Book of theDead and the Icelandic Prose Edda, both ofwhich have left deep imprints on FinnegansWake, also belong to it.” 15 But this doesn’thelp in the detail of reading the Wake, even

14 T. S. Eliot, Selected Prose, ed. Frank Kermode(New York: Harcourt Brace Jovanovich, 1975), 39.

15 Northrop Frye, Anatomy of Criticism: FourEssays (Princeton: Princeton University Press,1957), 314.

I find no theoretical fault inLeavis’s attempt to supporthis critical values by appealto the spirit or genius of theEnglish language...


though it offers a majestic context in whichthe reading might be pursued. There is a spe-cial problem here. I am persuaded by FritzSenn that we have succeeded–or that somescholars have–in reading the Wake in particlesbut not as a whole:

But while we can usually make an instructiveshow of select passages, we ought not to con-fuse the Wake’s exemplary complaisancewith our understanding of it. When I startedout, some thirty years ago, in the juvenileflush of those euphoric first unravelings ofmeaning, I hoped that within some decadeswe might jointly arrive at sufficient basic un-derstanding (at the modest level of RolandMcHugh’s helpful Annotations) that wouldenable us to go beyond those resistant detailsand to make statements of more general im-port and validity, perhaps even in a scholarlyway. We obviously haven’t. (Joyce’s Dislocu-tions, xi)

It may be that the work of annotation is thenecessary groundwork, the first act of reading,and that statements of more general importand validity may be made later. But the troublewith annotation is that the note, necessary anduseful as it is, reduces Joyce’s pages to their pre-sumably normative origins. If I know the Irishlanguage, I can report that “drawhure deelish”(Finnegans Wake, 455) means “dear sister.” Butthe annotation stops when it has divined thesource. When I read “Mades of ashens whenyou flirt spoil the lad but spare his shirt” (436),I place beside the rhyming “flirt” and “shirt”the rhyme of “Maid of Athens when we part,give oh give me back my heart,” as well as thesaw about sparing the rod and spoiling thechild, but I don’t get much gratification fromputting these old tunes back where they seemto belong in Joyce’s page.

There are other problems. I started readingUlysses with the help of Eliot’s review of it,especially the sentence in which he says thatJoyce’s use of the Homeric myth “is simply away of controlling, of ordering, of giving ashape and a significance to the immense pan-orama of futility and anarchy which is con-temporary history” (Selected Prose, 177). I havesometimes thought that it might be possible to extend that sentence to illuminate FinnegansWake. If it were, it would supply a critical valueand perhaps take the place of Leavis’s appealto the genius of the English language. But it wouldn’t help much. Whether we regardJoyce’s recourse to the Odyssey in Ulysses as reverential, casual, or both, at least Homer’spoem is there, and it exerts on the modernstory something of the pressure that Eliot de-scribes. But in Finnegans Wake no single story isinvoked beyond that of hce and alp. There

are many sources, including The Egyptian Bookof the Dead. There are hundreds of stories, in-cluding one about an Irish soldier shooting ata Russian general during the Crimean War, buttheir multiplicity ensures that none of themhas the authority (however we measure that)of the Odyssey in Ulysses. Wherever we find thenormative origin of one of Joyce’s “dislocu-tions,” as Senn calls them, it does not impose a critical or cultural perspective: it does not do the work of Tiresias in “The Waste Land.”These dislocations disperse the positivism ofwords in relation to their local referents, andthey set resonances astir, but they do not exertany cultural pressure on the narrative.

Senn’s idea of metastasis is more useful. Whathe has in mind is Joyce’s way of making a sud-den change in a sentence or phrase, indicatingthat something unusual is going on. His primeexample is “Chrysostomos” on the first pageof Ulysses. The word comes abruptly; it seemsto have erupted onto the page from nowhereand to enforce a “rapid transition from onepoint of view to another” (Joyce’s Dislocutions,139).You have to stop to ask what is happening,and you wonder whether Stephen Dedalushasn’t simply translated Buck Mulligan’s gold-capped teeth into the Greek word meaning“golden-mouthed.” Or maybe he is thinkingof St. John Chrysostomos, divine and orator.We are given no syntactical help in decidingwhat the word is doing there; we have to workout something for ourselves. I compare the pro-cedure with a phrase put in circulation manyyears ago by Marshall McLuhan: “juxtaposi-tion without copula.” He was led to it by cer-tain developments in painting that culminatedin abstract art, in which points of color andlight are deployed in paintings that have no in-tent of reference or description. Without anycopulas, we have to look at each painting andregister its lines of force. Normative reductionis impossible: there is nothing to which thepainting can be referred; there is no landscape,no face. It is the absence of the copula thatmakes such juxtapositions comparable to me-

tastases. Kenner claims that “juxtaposed ob-jects render one another intelligible withoutconceptual interposition,” 16 and if I knew pre-cisely what he means by “intelligible,” I couldbe convinced. Jackson Pollock’s drip paintingsseem to dream of freeing themselves from hu-man volition, as if their paint insisted on hav-ing only material existence (cf. T. J. Clark, Fare-well to an Idea: Episodes from a History of Modern-ism [Yale University Press, 1999], 166–167). Butthe difference between metastases and juxta-positions without copula is that with metas-tases you try to supply a plausible copula, andyou may succeed, at least to your own satisfac-tion. You can decide, to your own satisfaction,why “Chrysostomos” has broken into the para-graph. In the case of abstract paintings, thereis no merit in guessing what the copula mighthave been, had there been one. Sometimes inFinnegans Wake the metastasis is so abrupt thatyou think you may be dealing with a misprint,as in a passage where the four masters arepeering at Tristram and Iseult making love:

. . . drinking in draughts of purest air sereneand revelling in the great outdoors, beforethe four of them, in the fair fine night, whilstthe stars shine bright, by she light of he moon,we longed to be spoon, before her honeyold-loom, the plain effect being in point of facttheir being in the whole, a seatuition soshocking and scandalous. 17

The obvious allusion here is to Ed Madden’ssong of 1919: “By the light of the silvery moon /I want to spoon / To my honey I’ll croon love’stune / Honey moon keep a-shining in June /Your silv’ry beams will bring love dreams /We’ll be cuddling soon / By the silvery moon.”“By she light of he moon” looks like a mistakeor a typographical joke, and instead turns out,I think, to be an invention, a metastasis. Nocritical force is entailed. The voyeurs, “the bigfour, the four master waves of Erin” (384), may be Matthew, Mark, Luke, and John, or anyother quartet that comes to one’s mind. Noth-ing is to be gained by going back to the NewTestament. The technique of metastasis, asJoyce manages it, is akin to a stylistic device hepracticed as early as Dubliners. In Joyce’s VoicesKenner has described it as a deliberate discrep-ancy between narrative and diction–or, as Iwould prefer to say, between one diction andanother, one diction giving place to anotherwithin the same sentence. It is like a change ofkey within the melodic line.

16 Hugh Kenner, The Poetry of Ezra Pound (Nor-folk, CT: New Directions, reprinted 1974), 39.

17 James Joyce, Finnegans Wake (New York:Penguin, reprinted 1999), 385.

There is indeed a “story ofEnglish,” but it has culmi-nated in the proliferation of a language throughoutthe world that is primarilydevoted to money andpower.


absence (or the intangibility, which amountsto the same thing) of an enemy, Joyce’s revolu-tion of the word is an extreme and beautifulinstance of burlesque–of “the high languageof low purpose,” 19 as R. P. Blackmur calledburlesque–and it has whatever force of dis-sent we assign to it; little enough, I think, andcertainly not enough to make global institu-tions tremble. That is not Joyce’s fault or hisinadequacy, unless we think that a work offiction must, to be any good, bring the housedown. No houses will come down because ofFinnegans Wake. It is enough that the spirit ofplay and dissent, a more comprehensive spiritthan that of the English or any other language,be maintained. But I don’t think of Joyce andFinnegans Wake in association with Rabelais,Voltaire, and Swift–writers who broughtsome houses down.

© 2003 by Patricia Meyer Spacks and DenisDonoghue, respectively.

Photo of Dublin, O’Connell Bridge, from theLawrence Collection, courtesy of the NationalLibrary of Ireland.

This is the situation of England, or even of Brit-ain as a “national culture,” though Leavis wasreluctant to admit it in 1933: it is one amongother cultures and languages. The fact that En-glish has become the dominant internationallanguage is not a consideration from whichLeavis would have derived much satisfaction.

Still, it is hard to see Finnegans Wake as a politi-cally subversive book or as the modern correl-ative to the third book of Rabelais’s Gargantuaand Pantagruel. It is a ludic book, though not ajoke; at least it is more ludic than carnivalesque.The difference is that the carnivalesque needsa strong national or international culture tomock: there have to be laws to be obeyed, pun-ishments to be meted out before the mockeriesand saturnalia count. In 1939, when Work inProgress became Finnegans Wake, John CroweRansom welcomed it as a protest against thereality defined by science and positivism. Itmay still be that. Or, to bring things up to dateand to think of inserting Finnegans Wake intoour context rather than Joyce’s, it may countas a protest against the forces that have turnedscience, positivism, banking, brokerage, andinformation technology into an omnivoroussystem. But when Joyce plays fast and loosewith the English language, I recognize an im-pulse of play short of real subversion. He lacksan enemy that recognizes his existence. In the

But I should not give the impression that theidea of the genius or spirit of the English lan-guage has been entirely set aside in FinnegansWake or that Leavis’s being scandalized is thelast event in the case. Leavis urged that a writerof English should acknowledge the spirit ofthe language and respect it. That was sufficienttradition for him. Eliot extended the idea oftradition and enlarged its contents, but he con-tinued to emphasize that writers should sub-mit themselves to the tradition and establishthemselves in a strong, devout relation to it.But it would also be possible to respect a tradi-tion–or at least to take it seriously–whilechallenging it. M. M. Bakhtin is the critic wethink of as recommending this stance, espe-cially in his writings on Rabelais and in every-thing he has said about carnival and carniva-lesque subversions of reality as officially pre-scribed. In his essay “Discourse in the Novel,”Bakhtin says:

The resistance of a unitary, canonic lan-guage, of a national myth bolstered by a yet-unshaken unity, is still too strong for heter-oglossia to relativize and decenter literaryand language consciousness. This verbal-ideological decentering will occur only whena national culture loses its sealed-off andself-sufficient character, when it becomesconscious of itself as only one among othercultures and languages. 18

18 M. M. Bakhtin, The Dialogic Imagination: FourEssays, trans. Caryl Emerson and Michael Hol-quist (Austin: University of Texas Press, 1981),370.

19 R. P. Blackmur, Outsider at the Heart of Things,ed. James T. Jones (Urbana: University of IllinoisPress, 1989), 199.

Orlando Patterson (Harvard University) and Evon Z. Vogt (HarvardUniversity)

Denis Donoghue (NYU)


Nathan Glazer, a Fellow of the Amer-ican Academy since 1969, is ProfessorEmeritus of Sociology and Educationat Harvard University.

There have been many meetings,seminars, and events to memo-rialize the passing of Daniel P.Moynihan. He earned many dis-tinctions, filled many importantoffices, wrote many books. Hewas four times senator from thestate of New York, American am-bassador to the United Nations,American ambassador to India,domestic advisor to PresidentNixon, professor of education and government at Harvard Uni-versity, assistant secretary of laborin the administrations of Presi-dents Kennedy and Johnson, anda key initiator and founder of theWoodrow Wilson InternationalCenter for Scholars in Washing-ton, D.C. And this is only a partiallisting of the posts he held and thegood work he did.

But today we pay tribute to his longand fruitful association with theAmerican Academy of Arts andSciences. He became a member ofthe Academy in 1966, when he wasa professor at Harvard, but beforethat he had already been involvedin and guided important projectsof the Academy. The 1960s weremarked by the increasing salienceof the problems of race, poverty,and urban decline and disorder,and in the analysis of all of thesePat Moynihan was a master. Heparticipated in Academy confer-ences on the increasingly turbu-lent issue of the condition of Ne-gro Americans in the early 1960s,which climaxed in the publicationin 1965 and 1966 of two large issuesof Dædalus on the Negro Ameri-can. Moynihan’s major article inDædalus, “Employment, Income

and the Ordeal of the Negro Fam-ily,” was decisive in supplement-ing and clarifying his report toPresident Johnson on the disasterovercoming the Negro family–areport that had been massivelymisrepresented in the media andin public discussion. It describedwhat was happening to the Negrofamily and argued that the answerlay not in social work but in jobsand income. Moynihan’s articlein Dædalus sharpened that point.

His involvement with the Acad-emy’s project on Negro Ameri-cans led directly to his leadershipof an Academy project on the prob-lem of poverty, which was clearlyone root of the problems of Ne-gro Americans. Pat Moynihan be-came the chairman of a continu-ing Academy seminar on race andpoverty that met regularly during1966–1967. This seminar resultedin the publication in 1969 of animportant Academy volume, OnUnderstanding Poverty, which Moy-nihan edited. In introducing thevolume, Talcott Parsons, thenpresident of the Academy, des-cribed it as “the result of the firstcontinuing seminar of the Acad-emy dealing with American do-mestic problems.” Until then, theAcademy’s work in public policyhad concentrated on security is-sues, the control of atomic arms,and the like. The book was widelynoted, widely cited: It was an im-portant contribution to the under-standing of the complex problemof poverty.

Race, poverty, the family, and thesocial policies that tried to dealwith race and poverty were con-tinuing interests of Pat Moynihanas a writer, researcher, and policy-maker. But his interests spread be-yond these issues to the questionsraised by ethnicity and ethnic con-

flict, and this at a time when nei-ther ethnicity nor ethnic conflictwere much in the center of publicor academic interest. Having be-gun his political career in New YorkCity’s Democratic Party, Moyni-han of course could not be unawareof the significance of ethnicity andthe power of ethnic attachments.But his interest was sharpenedwhen I drew him into collabora-tion with me in the early 1960s inwriting a book on the ethnic groupsof New York City, entitled Beyondthe Melting Pot (1963). It was notlong after that book was publishedthat we had to take account in asecond edition of the increasingrancor and violence around issuesof race, religion, and ethnicity.

In the wake of that book and aswe saw the increasing salience ofethnic issues in various parts ofthe world in the 1970s, Moynihanand I decided to launch an Acad-emy project on ethnicity, extend-ing our concern from the UnitedStates to Europe, Asia, Latin Amer-ica, Africa, and the great commu-nist empires of Soviet Russia andChina. This project resulted in thepublication of our co-edited vol-ume, Ethnicity: Theory and Experi-ence, in 1975. It is still in print andwidely cited despite the enormousexpansion of publications in thatfield in the years since. That vol-ume became the first in a series ofAcademy projects on immigration,ethnicity, and ethnic conflict inwhich the Academy cooperatedwith scholars in France, Germany,

and elsewhere, and which result-ed in the publication of a numberof important books. I should notehere that Corinne Schelling of theAcademy staff played a key role in bringing to fruition the publi-cation of the books On Understand-ing Poverty and Ethnicity: Theoryand Experience, and in extendingthe Academy’s work on ethnicityand immigration into collabora-tive projects with scholars in othercountries.

Despite Moynihan’s great and con-tinuing interest in these issues, hisdirect involvement in such proj-ects was no longer possible whenhe became senator from New Yorkin 1976. He had moved from writ-er, researcher, and academic tostatesman–the word certainly fitsrather better than its near synonym“politician,” even though Moyni-han was a master of the arts of pol-itics, too, as indicated by his suc-cessive elections to the Senatewith ever larger majorities.

Moynihan was known for his per-spicuity and far-sightedness indrawing attention to importantissues before others had takenmuch notice of them. In the 1980she criticized the cia’s and othergovernment agencies’ estimatesof the strength of the Soviet Union.He was no expert on Soviet Russiabut he understood one thing thatthe experts apparently did not: theUnion of Soviet Socialist Repub-lics was a multiethnic empire in

by Nathan Glazer

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

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nTribute to Daniel P. Moynihan



Judith Resnik

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

The judicial Power of the United States shallbe vested in one supreme Court, and in suchinferior Courts as the Congress may fromtime 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 fortheir Services, a Compensation, which shallnot be diminished during their Continuancein Office.

Under the provisions of Article III, life tenureand protected salaries are the markers of theindependent federal judge.

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

Examples abound. Begin with the process forappointing individuals to life-tenured judge-ships. One concern is that a president, holdingthe constitutional power of nomination, maytry to interfere with an independent judiciaryby selecting people who are precommitted tocertain worldviews or who pass specific litmustests.

Another concern is that the Senate, constitu-tionally obliged to provide advice and consent,either is not living up to or is overstepping thatmandate. In May of 2003, hearings in the Sen-ate focused on these very questions, as we heardcomplaints from one quarter claiming a “crisis”of vacancies and from another quarter claim-ing “court packing.”

Another area of concern relates to whetherCongress has provided a sufficient number oflife-tenured judgeships and funds adequate topay for the salaries, the staff, the facilities, thesecurity, the jurors, the marshals, the libraries,and the public defenders in the federal courts.Recently, members of the judiciary objectedthat Congress had set their salaries too low andthat the Executive had budgeted too little forcourt renovations.

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Nelson W. Polsby (uc Berkeley), and Leslie C.Berlowitz (American Academy). Mikva mod-erated the program.

Judith Resnik, a Fellow of the American Academysince 2001, is the Arthur Liman Professor of Law atYale Law School.

Danny J. Boggs is Chief Judge in the United StatesCourt of Appeals, Sixth Circuit.

Howard Berman is a Democratic Representativefrom California in the United States Congress.

On May 15, 2003, the Academy held its 1870thStated Meeting in Washington, D.C. Librarianof Congress James Billington welcomed Fel-lows and their guests to the second in a seriesof meetings focusing on the relationship ofCongress and the Court. This event is part ofthe Academy’s project on Congress and theCourt. The steering committee members ofthe project are: cochairs Jesse Choper (ucBerkeley) and Robert C. Post (Yale Law School),Linda Greenhouse (New York Times), Abner J.Mikva (University of Chicago Law School),

The Independence of the FederalJudiciaryJudith Resnik, Danny J. Boggs, and Howard Berman


Control over jurisdiction is another arena ofcontroversy. How many and what kinds ofrights ought Congress to create by vesting newjurisdictional grants in the federal courts?What individuals ought to have access to thefederal courts, as contrasted with state courts,agencies, or nothing? Are we “federalizing”too many cases or too few?

Other questions involve losing rights that al-ready exist. Congress sometimes threatens toand occasionally does enact legislation limit-ing access to the federal courts, a practice ob-jectors label “jurisdiction stripping.” Examplesinclude bills about prayers in school and abor-tion rights.

Congress can also constrain the remedies thatfederal judges can order. Current issues arous-ing discord include whether Congress shouldcap tort damages and whether Congress shouldlimit the power of courts to grant injunctiverelief on environmental claims. Moving fromlegislation pending to that enacted, in thespring of 2003, Congress reduced the power of judges to make individualized decisionswhen sentencing criminal defendants.

Whether judicial independence is discussed ineither a celebratory or an anxious mode, com-mentators recycle themes that have long beenthe focus: incursions from the Executive andthe Congress. The fear of overreaching fromother sectors of government stems from theEnglish experience that predated the draftingof the United States Constitution. In seven-teenth-century England, judges’ commissionsexpired when a king’s reign ended. (The 1701Act of Settlement marked the beginning of theindependence of judges from the Crown.)

But now, more than two hundred years later,structural changes in the American judiciaryrequire that the discussion of judicial inde-pendence be reframed–to take into accountnew foes of, as well as new friends for, judicialindependence.

A fast glimpse at the past one hundred years of interaction between the Congress and thecourts demonstrates the need to return to thediscussion of judicial independence to includenarratives of cooperation as well as those ofconflict. Further, we must focus on challengesnot extant centuries ago. The power of the private sector to affect judicial independenceneeds to be understood, as does the growth oflower echelon jurists who wield federal adju-dicatory power outside the parameters of Arti-cle III and are, therefore, vulnerable to incur-sions from all quarters. Finally, we must con-sider how the developments within the judi-

cial branch have resulted in an agenda-settingjudiciary, taking an active role in policymak-ing that undermines the rationales for judicialindependence.

The Cooperative Expansion ofFederal Judicial Authority andPersonnel

Focus first on the remarkable growth of andcommitment to federal adjudication. Congressand the courts, working together over a hun-dred years, have created a substantial, impor-tant judicial system. Congress has repeatedlylooked to the federal courts to enforce newrights. Congress has endowed the federal ju-diciary with significant resources. Congressand the federal judiciary have worked togetherto invent whole new sets of federal judges andto empower them to decide hundreds of thou-

sands of federal claims. The joint venture ofthe creation of the federal judiciary as we un-derstand it today came in part through a re-reading of the constitutional text of ArticleIII–rendering legal the adjudicatory authorityof federal judges who lack life tenure and pro-tected salaries.

As Chart 1 indicates, a hundred years ago,about 70 trial judges were dispersed across the United States. In several states–such asMaryland, Indiana, and Massachusetts–a sin-gle district judge presided. Today, more than665 judgeships exist. As Chart 2 makes plain,in 1901 fewer than 30 judges staffed the appel-late courts; today some 180 serve.

The number of judges has grown, and so hastheir jurisdiction. During the twentieth cen-tury, Congress created federal securities law,federal environmental law, federal civil rights

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Chart 1: Authorized Article III Federal District Court Judgeships, Nationwide:Comparing 1901, 1950, and 2001

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Chart 2: Article III Authorized Judgeships: District, Circuit, and Supreme Courts:1901, 1950, and 2001

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© Judith Resnik

© Judith Resnik


law, federal consumer law, and much more.Because of this production, we are all federalrights holders, possessing new and importantrights that affect our lives in many ways–fromtaxes and pensions to the water we drink andour personal security.

The power of the federal judiciary does notcome from its size and docket alone. Duringthe second half of the twentieth century, life-tenured judges (constitutional judges) gainedthe power to appoint magistrate and bankrupt-cy judges (statutory judges), who serve forfixed and renewable terms. Specifically, in1968, the Congress created the position of fed-eral magistrate.

As Chart 3 illustrates, that job was once con-ceived as primarily part time (with 450 part-time positions in 1971). But today it is primar-ily a full-time job (with more than 470 serving

as full-time judges in 2001). In addition, in1984, Congress created another group–bank-ruptcy judges, now numbering more than 330,as Chart 4 details. Magistrate and bankruptcyjudges serve for fixed and renewable terms ofeight and fourteen years, respectively.

Unlike Article III judges who have life tenureand protected salaries, the jobs of the statuto-ry judges could be abolished and their salariescut. But magistrate and bankruptcy judgeshave courtrooms in federal courthouses, andthey do a good deal of the same work as life-tenured judges. For example, magistrates canpreside, with parties’ consent, at jury trials;both magistrate and bankruptcy judges havethe power of contempt. Also, bankruptcyjudges may sit on panels to provide appellatereview to decisions made by individual bank-ruptcy judges.

Chart 5 puts all of these positions together toshow all of the judges sitting in federal court-houses around the United States. Those with-out life tenure outnumber those with lifetenure.

In the early part of the twentieth century, theSupreme Court was loath to permit too muchdevolution of the “essential attributes of judi-cial power.” By century’s end, however, theCourt had reread Article III to enable the shiftof significant amounts of federal adjudicatorypower to non-Article III judges. Under suchinterpretations, yet another cohort of judges–termed Administrative Law Judges (aljs) andtoday numbering about 1,400 (as is detailed in Chart 6)–make thousands of adjudicatorydecisions in federal agencies. Thus, much offederal adjudication occurs outside buildingslabeled federal courthouses, and hundreds ofjudges important to the lives of claimants donot have life tenure.

A caveat is in order. The charts do not includeall those who do judging in federal agencies,but show only those judges chartered underthe 1946 Administrative Procedure Act (apa)and therefore protected through special selec-tion and dismissal provisions. Hundreds ofothers–called presiding officers, adminis-trative judges, hearing officers, or examiners(constituting what Professor Paul Verkuil hascalled “the real hidden judiciary”)–are lineagency employees who decide thousands ofcases but without the protections that the apa provides to both aljs and disputants.

Today we take for granted the purpose and pow-er of the lower federal courts. We even have ashorthand for it: “don’t make a federal caseout of it.” But that phrase was not commonmuch before the 1950s. In short, the lower fed-eral courts as we know them today did notexist a hundred years ago.

Consider this enormous expansion of judicialresources and notice how much of it came aboutthrough reliance on good will among all threebranches. Dozens of shared initiatives pro-

Structural changes in theAmerican judiciary requirethe discussion of judicial in-dependence to be reframedto take into account new foesof, as well as new friendsfor, judicial independence.

Chart 3: Magistrate Judgeships: 1971 and 2001

Chart 4: Authorized Bankruptcy Judgeships: 1984, 1991, and 2001

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duced the current landscape, with more than550 federal courthouses, more than 300,000annual civil and criminal filings and a millionbankruptcy filings in the federal courts, as wellas tens of thousands more in federal agencies,resulting in decisions articulating the meaningof and enforcing rights under federal law. Thecooperative work of Congress, the courts, andthe Executive has equipped this nation withmore than 4,000 judicial officers in a judicialhierarchy at whose top sit life-tenured ArticleIII judges.

New and Old Tensions

What is the import of this manufacture ofjudges when, instead of cooperation, we enterperiods of conflict between the courts and Con-gress? Sometimes, either Congress or the Ex-ecutive objects to decisions by individual judges

in individual cases, dislikes decisions by theSupreme Court, or rejects the idea of Americansholding federal rights. Sometimes, Congressor the Executive seeks to retract rights and rem-edies by limiting the power of federal judges,by requiring that disputants use privately spon-sored dispute-resolution programs, or by per-mitting disputants to be heard only in special-ly created courts run by the president.

We have many recent examples. As I mentioned,Congress has just limited the power of judgesover sentences. In the last decade, federal leg-islation divested federal courts of some juris-diction over cases involving aliens and prison-ers, and limited redress for certain kinds ofsecurities law violations. In the last few years,the president has chosen to go outside of boththe federal court and the military justice sys-tem altogether to create new military commis-sions with broad jurisdictional authority.

Return then to Article III–our emblem ofjudicial independence in the United States–and revisit its text. While popular understand-ings imagine three robust branches of govern-ment, significant separation of powers, andjudges able to make rulings on the merits ofcases without fear of losing their jobs or theirresources, the constitutional text says less thanmight be expected.

Article III provides only for life tenure and in-dividual salary protection and does so, today,for just a subset of our federal judges. Even forthe constitutionally protected judges, ArticleIII misses completely the idea of budgets, ofsalary-setting independent of Congress, and ofthe institutional needs of a judiciary as a pro-vider of services to the millions of litigants inneed of its attention. Economically, the judici-ary is dependent on Congress. Furthermore, as the judiciary has expanded, it is ever morereliant on Congress–for staff, for surrogateand subsidiary judges, indeed, for its very abil-ity to work. Conscious of that dependence, fed-eral judicial officers provide detailed explana-tions to Congress of the judiciary’s needs andbudgetary priorities.

And if we are to worry about conflict betweenCongress and those judges with life tenure,look again at the “pictures” I have provided ofthe federal courts and stare hard at those bargraphs where the tallest bar represents allthose judges who do not have life tenure.

No mention is made of such persons in ArticleIII, but through creative interpretations of Ar-ticle III, these judges today hold a good deal offederal power. They exist by virtue of statuteand can be decommissioned by statute.

For judges who work in administrative agen-cies, their vulnerability to Congress was madeplain when, in the 1990s, Congress stoppedfunding the Administrative Conference of theUnited States (acus), an institution that hadbeen dedicated to evaluating and supportingthe administrative judiciary. Administrativejudges are also worried about incursions fromthe Executive. Agencies are now trying toavoid using aljs (who gain some independ-ence through the Administration ProcedureAct) by relying instead on other employees toserve as temporary judges. Indeed, AttorneyGeneral John Ashcroft took the position thathe had unfettered authority to treat immigra-tion law judges (who were not apa-chartedaljs) as ordinary employees of the Depart-ment of Justice and to reassign them as hethought appropriate.

Chart 6: Authorized Federal Judgeships, Including Article I Courts andAdministrative Law Judges, Nationwide: 2001

Chart 5: Authorized Trial-Level Federal Judgeships in Article III Courts,Nationwide: 2001

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Life-Tenured Article III(Supreme, Appellate, District,Court of International Trade):

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Bankruptcy): 2,339

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© Judith Resnik


Thus, developments of the last century haveproduced hundreds of federal judges who haveless structural insulation from actions of anaggressive Executive and an aggressive Con-gress. Moreover, changes during the last cen-tury have also produced the possibility thatthe judiciary itself can pose threats to judicialindependence.

One question addresses the wisdom of creatinga system in which constitutional judges havethe power to “clone”–that is, to select thestatutory judges who serve inside our federalcourts. The hundreds of magistrate and bank-ruptcy judges obtain their charters (of eightand fourteen years, respectively) from otherjudges, who can reappoint them or not. Thusfar, a distinguished group of individuals hascome to play an important role, but we havenot come to grips with two issues: whether asignificant proportion of federal judges shouldbe selected with little democratic input, andhow to decide what behavior merits reappoint-ment.

Other questions relate to the role that this col-lection of thousands of judges ought to take in our polity. Over the past hundred years, wehave not only manufactured judgeships but al-so, for the first time in history, created the pos-sibility for a judiciary that has the administra-tive and technological capacity to act strategi-cally over time–not only in individual casesbut as agenda setters and lobbyists in Congress.The federal courts have gained a corporatestructure that permits the judiciary to functionin some respects as an interest group.

A quick summary of the infrastructure and theagendas of the federal courts is necessary tounderstanding why this transformation is rel-evant to the issue of judicial independence.The second chart showed some hundred life-tenured judges in 1901. Those judges had littleinstitutional means of talking with each other,let alone to anyone else. The attorney generalgave Congress reports on the federal courtsand asked Congress for the judiciary’s funds.

As Chief Justice William Howard Taft put it,each judge had “to paddle his own canoe.”

Of course, judges needed to become organized.But the question is organized to do what? Inthe 1920s, Congress created an official policy-making body of judges, now called the JudicialConference of the United States, through which27 judges, with the chief justice of the SupremeCourt presiding, adopt official policy positionsthrough a vote of that body. In 1939, Congresscreated the Administrative Office of the UnitedStates Courts, which collects data, submitsbudgets, and oversees the need for facilities forthe federal court system. In 1967, the FederalJudicial Center was established to focus on ed-ucation and research.

In the early days, the Judicial Conferenceavoided taking positions on matters of what ittermed “legislative policy,” such as whetherCongress should create new federal rights. Be-ginning in the 1950s, under Earl Warren, theJudicial Conference occasionally raised ques-tions about some federal jurisdictional provi-sions but often demurred on the grounds thatsuch issues were matters for Congress.

Under Warren Burger’s tenure, chief justicesbegan to make “state of the judiciary” speech-es. Thereafter, via a “futures planning process,”the Judicial Conference–the official policy armof the federal judiciary–approved 93 recom-mendations to Congress as part of an officialdocument, entitled the Long Range Plan for theFederal Courts, issued in 1995.

Specifically, the Judicial Conference has ar-gued for limited growth in the number of life-tenured judges, for greater reliance on adjudi-cation by judges lacking life tenure, for lessfederal jurisdiction, and for a presumptionagainst creation of federal rights if enforced in federal court.

For example, the Judicial Conference told Con-gress–while legislation was pending–that it should not create new rights enforceable infederal courts if computers crashed in y2k,that Congress should not give veterans accessto life-tenured judges to challenge benefitawards, and that Congress should not vest ju-risdiction in federal courts for challenges tohealth-care providers.

Moreover, both before and after the passage of the Violence Against Women Act, the chiefjustice raised objections to it. Subsequently, in2000, he wrote the five-person majority opin-ion in United States v. Morrison that held the civ-il rights remedy of that act unconstitutional.In short, over the last few decades, the federaljudiciary as a corporate entity has taken on

the roles of education, planning, and lobbyingabout the shape, nature, and future of judgingand the role of federal law.

These new roles leave the judiciary open to aform of politicization that we have only begunto acknowledge. Insiders in the adjudicatorysystem know that the judiciary is an organiza-tion that takes positions in Congress.

Therefore, sophisticated repeat players (suchas the government, insurance companies, cor-porations, and civil rights groups) now attemptto lobby the judiciary to take certain positions–for example, to support a bill to take class ac-tions pending in state court and federalize them.The more the judiciary takes policy positionsoutside of adjudication, the harder it is for thejudiciary to stay separate from, and independ-ent of, a certain form of politics.

Taking Up the New Challenges

I began by providing a cheerful picture of thetremendous and useful development of thelower federal courts. I then described how a dy-namic of cooperation produced the importantfederal judicial system that is familiar today.

But I have also analyzed how the inventions ofthe last century have created new sets of judgesmore vulnerable than the iconic judges imag-ined by reading our constitutional text. I thenraised new questions about how challenging it is to respond to the high demands for judgesand about what kind of behavior is appropriatewhen judges use their voice not to adjudicateindividual actions but rather to develop agen-das on social policy.

I hope we live in a world in which my uncheer-ful scenarios are rare. They are not, however,forbidden by constitutional text. Rather theyare dependent on culture–and that culture is, I think, at risk from all three branches. In myview, no branch is always either a hero or a vil-lain.

My hope is that we will consider how to pro-mote a culture that cherishes judging, respectsindividual judgments when rendered after de-liberation, obliges judges to take responsibilityfor their decisions through explanation andpublication, and constrains judges when theymove outside their role as adjudicators. Wemust make self-conscious decisions to ensurethat the federal judiciary will not become justanother agency, pushing its own worldviewand agendas, and to ensure that the executivebranch and Congress will appreciate the seri-ousness of purpose when individual judges tryto do their best.

The more the judiciarytakes policy positions out-side of adjudication, theharder it is for the judiciaryto stay separate from, andindependent of, a certainform of politics.


Danny J. Boggs

In my remarks on the independence of thefederal judiciary, I will try to adhere strictly tothe topic of judicial independence and truethreats to that independence, as distinguishedfrom things that may annoy the federal judici-ary, hinder or promote the effectiveness of thefederal judiciary, or advance or retard the rep-utation of one or more members of the federaljudiciary. I so limit myself because I believethat it is too easy to say that anything thatjudges don’t like is a threat to their independ-ence. What may be a threat to good govern-ment or to good use of taxpayers’ money or toany number of other desirable things is notnecessarily a threat to the independence of thejudiciary as contemplated in the Constitutionand other founding documents.

My basic theme today will be that the indepen-dence of the judiciary remains intact and large-ly unthreatened. I find my colleagues on thebench to be as independent as the proverbialhog on ice. With respect to my own activities,I know that efforts may be undertaken that ap-pear to be an attempt to intimidate me or toaffect my decisions in an improper way, butmy perception is that the effect of such activi-ties is zero. Observing my colleagues, I have attimes questioned their reading of a record ortheir logical deductions or their understand-ing of constitutional history, but I have neverthought that their opinions represented any-thing other than their actual, even if at timeswrongheaded, execution of their judicial duties.

So, what are some of the possible or proposedthreats to judicial independence, and howshould we assess them? I will mention severalin this list, but I will not have time to addresseach of them in my ten minutes: judicial pay;delays in the nomination or confirmation ofjudges; attacks upon, or abuse of, persons nom-inated to the federal bench; abuse of, or attacksupon, persons now holding judicial office; at-tendance at conferences by judges, or attemptsto limit what judges attend, read, or say; andcongressional intrusion upon judges by requir-ing reports on or by them.

With respect to the process of appointingjudges, I will not take a position on the specif-ics of the controversy currently embroilingthat process or on the variety of controversiesthat have occurred in that same process for atleast the past quarter-century. I will say that itdoes appear to me, from knowing a fair amountabout my colleagues on the federal bench andquite a number of the nominees, that there is aconsiderable lack of alignment between the

actual talents, qualifications, and positions ofnominees and the manner in which they aretreated in the confirmation process. In otherwords, the attacking, delaying, or defeating ofnominees on the basis of their supposed ex-tremism or lack of qualifications or lack of tem-perament is a process that is, to paraphrase acomment once made by Justice Potter Stewartin regard to the death penalty, “freakishly andwantonly imposed” in the “same way that be-ing struck by lightning is.”

Rufus Choate, 150 years ago, said that if judgesin Massachusetts were to be elected, they wouldbe “abused by the press, abused on the stump,and charged ten thousand times over with be-ing very little of a lawyer and a good deal of aknave or a boor.” Though we do not have elec-tion of federal judges, it does sometimes seemthat very little has changed in the past 150 years.Granted, certain judges nominated by the current president and by past presidents havebeen accused, perhaps correctly, of some meas-ure of extremism. Yet throughout the years,nominees who have been attacked as extrem-ists have rarely differed radically in actual qual-ities from those who have glided through theconfirmation process as moderates.

Indeed, looking at the broad range of personsof my knowledge nominated and appointedover this same period, it seems to me that thejudges nominated to the bench by presidentsof either party represent a fair bell curve of le-gal attitudes and opinions–a curve whose cen-tral point approximately matches the positionof the publicly active lawyers who have sup-ported the appointing president. Although at-tacks may be made on nominees for being toofar to the right or left of most Americans, thatdoes not represent a threat to the independenceof the judiciary, because nominees of both par-ties will not commit to particular positions.They will be attacked for their failure to com-mit, and then defended, and their attackers anddefenders will change sides, along with the ad-ministration. But this would be a threat only if nominees did commit to a position. JusticeAnthony M. Kennedy, speaking recently at theUniversity of Virginia, warned both partiesthat they should start thinking about the dan-gers they pose to judicial independence by in-sisting on nominees who have particular views.

Abraham Lincoln made what is perhaps thebest statement on this matter in a conversationwith George Sewall Boutwell, who included itin his Reminiscences of Sixty Years in Public Affairs.Lincoln, who had just nominated Salmon P.Chase as chief justice, candidly said that hewanted Chase to rule certain ways–for exam-ple, by upholding the Emancipation Proclama-

tion–but added, “We cannot ask a man whathe will do, and if we should, and he should an-swer us, we should despise him for it.” I thinkthat declining to answer is indeed the properanswer, and I think that it will continue to bethe answer that nominees of both parties willgive.

The history of attacks on the sitting judiciary,of course, is a rich and varied one, from the at-tacks on Federalist judges and “midnight jus-tices,” to the Senate’s initial refusal to confirmJustice Roger B. Taney, to Teddy Roosevelt’sattack on his own appointee, Oliver WendellHolmes (he said he could have carved a justicewith a firmer backbone out of a banana), toFranklin D. Roosevelt’s efforts against “thefour horsemen” (the Supreme Court justiceswho persisted in voting against his New Deallaws), to the attacks on Earl Warren, and up tothe present. These activities may certainly havethreatened the digestion of the judges involved,but in what sense can we say that they affectedtheir independence?

Clearly, many such efforts are designed tochange the judicial opinions of judges for rea-sons outside the court record or other docu-ments that judges should legitimately consult.For example, Tony Mauro recently reported inLegal Times (May 12, 2003) that a certain organ-ization “has announced plans to demonstratewherever Supreme Court justices speak in pub-lic, until the Court hands down its decision inthe University of Michigan . . . cases” concern-ing affirmative action. He quoted a representa-tive of that organization as saying, “It won’t be something the justices can just push aside.”Well, despite that statement, I confidently ex-pect that the demonstrations will have no ef-fect whatsoever on those judges.

In a similar vein, during the circuit argumenton one of those cases, our chief judge, BoyceMartin, with whom I had substantive disagree-ments on the case, was confronted by a coun-sel who began her argument as follows (andthis is from the transcript): “I come before youwith over there on the table some fifty thousandpetition signatures representing fifty thousandplus Americans . . .”

At that point, Martin burst out, “I don’t thinkpetitions are what decide lawsuits. We decidethe case on the law and the facts, and we wantit very clear that we are not policymakers, we

The independence of thejudiciary remains intact and largely unthreatened.


are not a legislative body. . . . So the petitionsare not of any benefit in our decision making.”This was a position in which, I know, all of ourjudges concurred.

Now, I must say that bad decisions and unin-dependent decisions are not necessarily thesame. In the early 1990s, as part of a group ofAmerican judges, I had the honor of spendinga total of six weeks with some Russian judges,whom we visited on three separate occasionsbefore, during, and after the collapse of theSoviet Union. During our early visits, in 1991,we were told that their great fear was “tele-phone justice,” wherein a party would call thejudges and tell them how to decide. One of themore cynical dissident defense attorneys said,“You know, they talk about telephone justice,but that’s just for the stupid ones. The smartones don’t have to be called.”

With respect to pay, it should be noted that thefounders were quite concerned about the abil-ity of Congress to affect judges’ decisions bythe manipulation of the pay scale. As AlexanderHamilton stated in The Federalist Papers, no. 79,“A power over a man’s subsistence amounts toa power over his will.” In our modern, inflation-prone society, this phenomenon has taken avariety of forms. It would obviously be a chal-lenge to independence for Congress to random-ly cut judges’ salaries by 3 percent one year andby 14 percent another; however, simply refus-ing to raise salaries in order to match the de-basement of the currency would create thesame effect. In 1967, a year not usually thoughtto embody judicial extravagance, judicial sala-ries and congressional salaries were $42,500–a figure that, when adjusted for inflation, wouldrequire a pay raise of over $70,000 dollars tomatch today. While I now feel little embarrass-ment over that, especially given that my young-est child graduated from college last June, thedirection of that effect, as well as the effects ofquite a number of other individual measures,could, if driven to extremes, threaten judicialindependence. For example, had there been no pay raises since 1967, the result would have

been equivalent to a pay cut of over 80 percent.So there are things that nibble around theedges, but I think they only become true threatsif taken to extremes. In the same way, a totalrefusal by the president to nominate, or by the Senate to confirm, new judges–so that the judiciary would be staffed only by a shrink-ing cadre of persons whose proclivities werethought to be known–could also have a nega-tive effect.

I will conclude simply by saying that the ac-tions of federal judges are subject to legitimatecriticism and are not immune from illegitimatecriticism–but those actions are the independ-ent actions of the judges. As was said of anoth-er controversial group, in a mocking ditty, “Youcannot hope to bribe nor twist / Thank God,the British journalist / But seeing what un-bribed he’ll do / There really is no reason to.”

Howard Berman

The congressional-judicial relationship in-volves a certain degree of inherent conflict.Congress controls the resources (funds, build-ings, etc.) that courts need to function; con-trols the number of judgeships; advises andconsents on judicial vacancies; and deter-mines the jurisdiction of the courts. The fed-eral courts, for their part, interpret and some-times overturn the laws Congress writes.

I suppose much of the conflict created by con-gressional regulation of the courts could beavoided if Congress simply acceded to the de-mands of the judicial branch on issues undercongressional control. But from my perspec-tive, there is a certain amount of congressionalregulation of the courts that is both appropri-ate and constitutionally mandated. At the sametime, there is no doubt that Congress can go,and at times has gone, too far in regulatingcourts.

It is probably impossible to establish a brightline between appropriate and inappropriatecongressional regulations of the courts. In fact,the checks-and-balances system of govern-ment established by the founding fathers en-sures that a bright line cannot be drawn. But in general terms, I believe it is appropriate forCongress to regulate administration of the ju-dicial branch, but not appropriate for Congressto regulate the judicial function.

I can best explain my thinking on appropriatecongressional regulation of the courts by dis-cussing specific examples:

• Courthouse construction. Courts need to do a better job of being efficient and minimiz-ing requests for dwindling federal dollars. Forexample, even though a new federal court-house was built in Los Angeles just a decadeago, there is now a need for a new one. Whywasn’t a sufficiently large courthouse built adecade ago, when it would have been muchcheaper to build it? Why won’t judges agree tocourtroom sharing when there are insufficientresources to build a separate courtroom forevery judge?

• Advising and consenting on judicial vacan-cies.

• Creation of new judgeships. Judiciary Sub-committee Chair Lamar Smith requested aGeneral Accounting Office (gao) study to“analyze merits of weighted filings and adjust-ed case filing methods used by Judicial Confer-ence.”

• Statutory requirements that judges disclosetravel junkets and personal finances. Whilesuch statutory requirements are appropriate,it is also appropriate for courts to have the abil-ity to redact those disclosures, and Congresshas given courts the ability to do such redac-tions.

• Judicial pay. I support paying judges moreand restoring missed judicial Cost of LivingAdjustments (colas). I also support repeal ofSection 140, which requires Congress to passadditional authorization each year for increas-es in judicial pay, including colas. I wouldhave supported an amendment to repeal Sec-tion 140 if the Judiciary Committee had markedup the Federal Courts Improvement Act of2003 at its meeting of May 7, 2003.

Even though it may be appropriate for Con-gress to regulate courts in certain areas, thatdoes not mean that Congress always has toexercise its authority. In many circumstances,the federal courts can exercise this authority,and if the courts do so responsibly, Congressshould defer to such judicial self-regulation.However, if the courts fail to self-regulate re-sponsibly, Congress has the responsibility tostep in and exert its own authority.

The process for amending the federal rules ofevidence, civil procedure, appellate procedure,and criminal procedure is a great example ofhow judicial self-regulation can work.

Unpublished decisions are another example of successful self-regulation. As a result of sig-nificant public outcry, the Subcommittee onCourts, the Internet, and Intellectual Propertyheld hearings and had discussions about leg-islation. The federal courts effectively pre-

The actions of federaljudges are subject to legiti-mate criticism and are notimmune from illegitimatecriticism–but those actionsare the independent actionsof the judges.


empted congressional regulation by adoptingtheir own new rules on unpublished opinionsthrough the Judicial Conference.

Unexplained decisions may end up being a sim-ilar success. hr 700, introduced by Represen-tative Ron Paul, would amend the federal rulesof appellate procedure to require federal ap-peals courts to issue written opinions in certaincases, and thus prohibit appeals courts fromengaging in the practice of affirming lower-court decisions in one sentence. A committeeof the Judicial Conference has begun the pre-liminary process of examining whether to rec-ommend that the Judicial Conference adoptsuch a change.

However, the judicial privacy issue is one exam-ple of an area in which judicial self-regulationwas not working. Several federal judges ex-pressed concern that the Administrative Officeof the Courts (ao) was monitoring their elec-tronic communications. When those federaljudges and several members of Congress, in-cluding myself, expressed concern about this,the ao was not cooperative and resisted ad-dressing these concerns. I proposed legislationthat prohibited ao interception of electroniccommunications unless pursuant to JudicialConference policy. Even though this legislationleft it to the courts to regulate themselves, theao fought against it. I tried to work with aoon a compromise judicial privacy amendment,but the ao continued to oppose it. Finally, Iwent so far as agreeing to withdraw my com-promise amendment if ao would send a letterdisavowing its intent to monitor and declaringthat it did not have authority to monitor unlessthe Judicial Conference directed it to do so.However, the letter the ao eventually sent wasmissing the critical language providing theseassurances.

In such circumstances, it is entirely appropri-ate that Congress reclaim its authority to regu-late the administration of the courts. Wherethe courts don’t self-regulate responsibly, Con-gress has the responsibility to step in.

There are also adequate examples of impropercongressional interference with judicial func-tions.

Mandatory minimum sentences improperlytie the hands of judges. The central and crucialjudicial function is to look at the facts of a case,interpret the law, and, on the basis of the factsand law, decide what outcome will serve jus-tice. Only the judge who has sat through thetrial can determine how to serve justice. Cer-tainly, members of Congress cannot decide,years before a crime has ever been committed,the appropriate punishment for that crime.

As inappropriate as it is for Congress to tie thehands of courts through mandatory minimums,it is exponentially more inappropriate for Con-gress to seek to pressure judges who don’t shareits perspective on mandatory minimums. Yetthis Republican Congress has done just that toa federal judge from the District of Minnesota.Because that judge testified at a congressionalhearing in opposition to mandatory minimumsat the invitation of the Democratic minority,the majority has engaged in a campaign tohound him. The Judiciary Committee issued afar-ranging subpoena to demand records relat-ed to the judge. Furthermore, the chair of theJudiciary Committee has commissioned a gaostudy of this judge’s practices regarding down-ward departures from mandatory minimums.

Legislation to limit judicial review of statutesis also inappropriate. There are a variety ofexamples of such legislation:

• The Healthy Forests Restoration Act of 2003,hr 1904, which establishes a fifteen-day timelimit for filing appeals, directs courts to deferto agency determinations on balance of harmand public interest when considering requestsfor preliminary injunctions, requires courts torender a final determination within one hun-dred days, and limits lengths of preliminaryinjunctions to forty-five days.

• NextWave bankruptcy legislation from the106th Congress, which would have created aspecialized, expedited review process for pro-posed statutory settlement of the NextWavelitigation, in particular requiring courts to actwithin specified time periods and limitingcourts to review of constitutional questions.

• The Class Action Fairness Act of 2003, hr1115, which provides the right to seek an inter-locutory appeal of a decision on class certifica-tion, and provides an automatic stay of thatdecision until the appeal is decided.

What possesses Congress when it steps overthe appropriate bounds of appropriate regula-tion of the courts? While I do not mean to jus-tify congressional overregulation of the courts,the courts should understand its roots. Oneexample of what inspires congressional iretoward the courts is judicial activism, whereinthe courts use their judicial power to make lawand/or policy.

Judges reduce public and congressional respectfor the judicial branch when they engage ineither conservative or liberal judicial activism.The perception of impartiality is critical to thepublic’s respecting and obeying judicial deci-sions.

State sovereign immunity decisions displayconservative judicial activism. Courts, partic-ularly the Supreme Court, are ignoring thespecific words of the 11th Amendment andcrafting a theory of state sovereign immunityfrom “fundamental postulates” that underliethe constitutional scheme. Yet these samejudges claim to be strict constructionists andreject the idea that a right to privacy can be in-ferred from the constitutional scheme.

The courts’ positions on state sovereign immu-nity, contrasted with their positions on priva-cy, are totally inconsistent and lead many tothe conclusion that the courts have a politicalagenda.

Questions and AnswersJesse Choper: It strikes me that the issue ofadequate judicial compensation is much moreconnected to the quality of the judiciary andto its diverse nature than it is to judicial inde-pendence. If Congress is going to limit travelfunds for judges, then it is likely that Congressis not going to give them salary raises that keeppace with inflation, and this will affect judgesregardless of their voting records or whethertheir rulings agree with the prevailing politicalmajority. I’m wondering why, back in the eigh-teenth century, the drafters of the Constitutionprovided against reduction in judicial compen-sation in Article III. Was it to protect quality?Or was it to secure independence?

Danny J. Boggs: I think the constitutional pro-vision was included in light of the British kinghaving had the power to cut off people’s sala-ries, or cut them in half, or cut them to one-tenth; that was the immediate evil being ad-dressed. If you read The Federalist Papers, no. 79,you’ll see that the founders also understoodthat the debasement of our currency was a po-tential problem. As I indicated in my remarks,I don’t see this as a major threat today–it’sjust something that’s nibbling around theedges. But I can certainly see people sayingthat if we judges collectively make a lot of de-cisions that annoy Congress, then Congress isunlikely to put its neck out by raising our payto compensate for the restrictions. No individ-ual judge at the circuit level is likely to annoyCongress that much all by himself or herself.Lots of federal judges share the view that if

Where the courts don’t self-regulate responsibly, Con-gress has the responsibilityto step in.

they were collectively more complacent aboutCongress’s bills in terms of interpreting themor their constitutionality, then Congress wouldbe more cooperative in approving pay raisesand other kinds of judicial funding.

Abner J. Mikva: A Canadian Supreme Courtdecision says that questions of financing mustbe handled outside of both the Congress andthe courts. The government generates a moreor less independent commission to addressany such issue, and there’s a minimal judicialreview of the outcome. Around the world, aspeople worry about independence, they worryabout resources for the judiciary. Here in theUnited States, I think we have to look at theresources not only as the actual salary line forsomeone holding a federal judgeship, but alsoas the individual’s ability to do the work. Ajudgeship conferred through Congress is notonly more expensive in terms of dollars; it alsorequires a congressional act. The federal judi-ciary can decide internally to create moremagistrate judgeships, but new bankruptcyjudgeships require Congressional approval ofa salary line. If we want more independent ac-tors, however, and if we think that indepen-dence derives from some degree of economicfreedom, we need to recognize that we aren’tmoving in that direction under the currentsystem. Other judiciaries around the world, inconstitutional democracies, are trying to de-velop mechanisms to create more structuralspace. Actually, in this country, some statecourts have taken the view that the separationof powers assumes that resources are essentialto the idea of the judiciary as a functioninginstitution.

Robert C. Post: I’d like to ask a question aboutjudicial independence. It is certainly the casethat judges must have a free and independentmind in order properly to decide a case. This isthe sense of judicial independence referred toby Judge Boggs. But there is a second sense ofjudicial independence that was referred to byProfessor Resnik. If we think of the federaljudiciary as the third branch of government,which is organized to accomplish discrete ob-jectives, then we have to also imagine judgesas connected to each other in the service ofthese objectives. We might believe, for exam-ple, that judges who are underutilized shouldbe required to transfer to districts that areseverely in arrears, so that the judicial branchof government can fulfill its institutional mis-sion of offering prompt and efficient justice.I’d like to ask the speakers to comment on howthey imagine judicial independence workingin this second sense. How does the judicialindependence necessary for making discretedecisions fit with the interdependence neces-


sary for the judicial branch as a whole to real-ize its organizational objectives?

Judith Resnik: Your question brings me toanother aspect of judicial independence: val-uing the activity of judging itself. In my view,we are at risk of losing the understanding thatjudging is a desirable and a good kind of deci-sion making. The risk is coming, in part, fromjudges who–in their eagerness to support“alternative dispute resolution”–insist that a “bad settlement is better than a good trial.”That very sentiment (and those words) can befound in published opinions and in commen-tary by judges teaching other judges how tosettle cases. As of 2003, of one hundred civilcases that are filed, fewer than three begin atrial. Today, we are in an era in which manyjudges themselves do not have a positive atti-tude toward the activity of adjudication.

Let me turn to another pressure on the modelof fair and deliberate judgment: aggregate de-cision making. An example from a case last terminvolved persons convicted of certain crimesand thereafter labeled as at risk of committingfuture crimes. Rather than requiring a case-by-case decision about each individual, the Su-preme Court upheld a statutory presumptionthat bundled all individuals who had been con-victed of certain crimes and placed them in asingle category–with their names up on a web-site. Similarly, in sentencing, the trend is to-ward aggregate, grid-based guidelines, ratherthan individual decision making. Let me beclear: I am for guidelines and norms and re-view, but I do not believe it is wise to reducethe decision about the length of time a personspends in prison to a formula. So a real threatthat I see–coming from within the branchesof government and from outsiders– is a threatto the belief in the activity of judging itself.

Here is why having enough judges makes a dif-ference. Here is why the non-Article III judgestoday are so important, for they make tens ofhundreds of decisions in individual cases, in-volving immigration, benefits, social security,and the like. We must pay attention to thesejudges and find ways to give them the cultural,political, and judicial “capital” to make theirdecisions wisely and transparently. We need tofind ways to have them work in rooms accessi-

ble to the public, to report decisions in a waythat makes them known to the public, and tobring them into public discussions of the fed-eral judiciary. These are people making centraljudgments for so many in the United States, somany holders of federal rights, and they workrelatively invisibly.

Boggs: That’s obviously a very broad topic,and Professor Resnik has given a very broadanswer. I think, in a sense, it comes back to thenotion of the functions with which we want toendow the judiciary. As a broad proposition, Idon’t think that the term “judicial independ-ence” speaks to the breadth of matters that wewant the federal judiciary to handle. There arearguments about the judiciary’s role in suchareas as expanding criminalization or contract-ing economic regulation, but by and large, theseare matters that Congress decides.

Professor Resnik spoke about the toleration ofaggregate decision making. I would note thatlegislation is an aggregate judgment. For ex-ample, if we say that a person in Minnesotahas to have the same air conditioner as a per-son in Mississippi, which some energy regula-tion does, that’s an aggregate judgment. Youmay think it’s stupid, but it’s still a piece oflegislation, and unless somebody declares itunconstitutional, you abide by it.

In terms of the broad activity she attributed to all the non-Article III judges, I think one ofthe real questions–keeping in mind that Con-gress established the Administrative Proce-dures Act–is the extent to which somethingreally is an Article I function. Many adminis-trative law judges, in the end, are speaking inthe name of a cabinet secretary. Congress canlimit some activity to the secretary, or Con-gress can permit, or even require, that otherofficials handle it. While it might have beennice for those people to be called judges (somagistrates became magistrate judges, andhearing officers became administrative lawjudges), it was basically a political judgmentunder the structure that Congress set up. I canpreach that either way without saying that itdisturbs the functions with which we want toendow the judiciary. Some members of Con-gress may want the judiciary to handle certainmatters, and others may not.

Judith Resnik Danny J. Boggs Howard Berman Abner J. Mikva


Post: The distinction that Congressman Ber-man made between the administration of thejudiciary and the functioning of the judiciarycalls to mind a memorandum that Chief Jus-tice William Howard Taft wrote to PresidentCoolidge in 1927. There was at the time a billpending before the House that would haveprohibited federal judges from commenting tothe jury on the judge’s understanding of theevidence. In his memorandum, Taft said thisbill would be unconstitutional because it wouldinfringe on the independence of the judiciary.Now, quite apart from whether the bill was infact constitutional or not constitutional, Taft’sargument does require us to think a little bitabout the distinction between the prerequi-sites of independent judgment and the admin-istration of the judiciary.

Howard Berman: It seems to me that part ofthis is about the judiciary’s ability to make dis-crete decisions–not that we are not interfer-ing with, or retaliating for, the exercise of thatfunction. That does seem to be at the heart ofit. I was thinking of your question in the con-text of a recent letter–I could be wrong, but Ibelieve there’s a recent letter from the ChiefJustice, or maybe it’s from the Judicial Confer-ence as a whole, that essentially challenges thewisdom of passing class-action legislation thatwould essentially federalize huge amounts ofclass-action cases, because of the consequencesof the workload increase on the federal judici-ary. I love that letter. I’m going to find that let-ter, and, when we mark up that bill, I want touse that letter in my debate.

I’m also thinking, what if I were sitting in Con-gress in 1938, considering a bill that would takewhat’s essentially a contract issue–a laboragreement between a union and an employer–and federalize it, so that our appellate courtswould have to hear appeals from this adminis-trative agency all the time. That would reallyburden our appellate courts. I might have hada different attitude in 1938 than I would today;we view these things differently now.

I’d also like to comment on the notion of anadministrative officer speaking for a cabinetsecretary. We’re finding that there are a lot oflegislative initiatives to try and cut the courtsout of almost any kind of review of fundamen-

tal decisions about rights–I see it in the areaof asylum litigation, for example. Instead ofallowing for a sensible administrative processwith some level of judicial review, with tilts to the decision of the administrative agency,these initiatives would deprive the courts ofany power to act on things that I think are ulti-mately judicial questions.

Resnik: The exchange between the Congressand the Judicial Conference about whether tofederalize certain class actions currently liti-gated in state courts–raised just now by Con-gressman Berman–points to an importantquestion about what role the Judicial Confer-ence ought to take when asked to comment onproposed legislation. At times, in its history,the Conference has taken the position that itought not to comment on certain matters of“legislative policy.” At other points, the Con-ference has noted that a particular proposalwould likely increase judicial workload, butthen not said more. And at other times, theConference has registered its opposition to aspecific proposal. Several questions emerge.First, if the Judicial Conference is to comment,how should it decide how to formulate itsviews? Currently it relies on a committee struc-ture, but it does not seek the views of all of thejudges before forwarding opinions to Congress.Second, ought the Judicial Conference providea singular view or forward a range of responseson the pros and cons of a proposal? Third, howmight we think about what meaning to makeof a comment such as the Judicial Conferenceis “for” or “against” federalizing certain classactions? Should some collective assessmentby life-tenured judges about either opening or closing the federal courts to more cases beencouraged? As these questions suggest, asthe judiciary gains its corporate voice, seriousquestions result about how, why, and when touse it. I am concerned about the harm to thejudiciary if it becomes too involved in assess-ing the wisdom of legislative proposals. Notethat many alternatives exist to the request foran opinion from the Conference as a whole.For example, one could invite judges to com-ment when their expertise would be helpfulwithout positing those judges as “speakingfor” the Article III judiciary as a whole.

Mikva: In response to Jesse Choper’s earlierquestion regarding the relationship betweenindependence and compensation: One pointthat didn’t come up, but that I think needs tobe raised, is that the implicit bargain in thelife-tenure provision of Article III should bethought of as two-way; that is to say, the judgewill stay a judge. As a litigant, I would not wantto appear before a judge who might not be ajudge next year, or who might be a practicinglawyer or have some other ambition that couldcolor his or her judgment. That, I think, verymuch undermines the value of an independentjudiciary. Also, I’ll note that it’s conventional,in this debate about compensation, to look atdeparture rates, at the numbers of people leav-ing the bench–not retiring, but leaving to dosomething else–sometimes something unre-lated, but usually the practice of law. Thenumbers are inherently small, but they’ve beenlarger in the past ten or fifteen years than theyhave been historically–and that, it seems tome, is a reason for concern.

Linda Greenhouse: I think that if you askedmost judges for their personal thoughts on the question of judicial independence, theirresponses would touch on two current contro-versies. One concerns sentencing guidelines,or sentencing discretion, which has been al-luded to, although I’d like to hear Judge Boggscomment on that issue. The other controversycenters on a bill that I believe came to the leg-islative floor in the last session of Congress. Idon’t think anything’s happening with it rightnow; maybe it was shot down. The bill, spon-sored by Senators Kerry and Feingold, soughtto limit the ability of judges to attend variouskinds of seminars in educational venues, inresponse to certain specific situations. Manyjudges to whom I spoke thought this was anintolerable infringement on judicial independ-ence, and I’d like to hear comments about howthat fits under the rubric of our discussiontoday.

Boggs: The first issue you mentioned was thatof sentencing guidelines. I have not served as adistrict judge, so I don’t have the visceral feel-ing for the sentencing process that some judgesdo. I know that the whole process of havingguidelines that are appealable greatly increasedour workload for a long time, but ultimatelywe seem to have coped with it–and since Ihaven’t seen any cases under the new statute, I certainly wouldn’t want to opine about it. It’s something that I’ll have to deal with as itcomes up.

With respect to the Kerry-Feingold bill, therewas some local controversy over it. My per-sonal take on that bill was that it was so con-

Jesse Choper Robert C. Post Linda Greenhouse Nelson W. Polsby


trary to the notion we should have of even-handedness. That is, most of the legislationflatly said, “Law schools, good; bar associa-tions, good; everybody else, bad.”

I’m getting expenses to come to this StatedMeeting. It’s really wonderful, because my wifeworks in Washington, and it’s much more of aperk for me to come up and see her than to gooff to, say, South Dakota. Does this mean thatany legislation that’s enacted should list theAcademy as one of the groups that’s capable ofsuborning judges? Of course, law schools con-stitute the only group that really can providepatronage to judges. Law schools can pay us upto $25,000 a year to teach, and they can decidewhether we teach one hour a week or ten hoursa week for our $25,000, and those law schoolslitigate, in their own name, in front of us.

I could tell you some evenhanded things thatcould be enacted: for example, you could limitall compensation to the federal per diem rate,and that would get rid of the notion of plushexpenses. I don’t think I’ve ever had a confer-ence expense that didn’t come in under thefederal per diem rate. But that would be even-handed. A bill that would set up a commissionto approve what judges can and can’t go towould be problematic–but I haven’t seen thatlegislation go very far.

Berman: As one of the people who have strongviews about the rules that ought to controljudges attending those conferences, I’m strong-ly opposed to any legislation in the field. I thinkthis is something that the Judicial Conferencecan handle, taking into account the problemsthat Judge Boggs just noted.

Mikva: What about disclosure?

Berman: There certainly should be disclosure,but I don’t think that’s a problem.

Mikva: Some people don’t like disclosure,though.

Resnik: There’s been a real problem with dis-closure, and the issue came up because somerepeat-player litigants with great resourcescan put on conferences for judges. These arenot just mixed-audience conferences at whichjudges are invited to speak, but conferences atwhich judges are asked to teach law and eco-nomics, or antitrust law, or civil rights law. As it turns out, the civil rights folks are not too well heeled, and the people with otherresources are more well heeled–and, over aperiod of decades, they have made an ener-getic, focused project of inviting both stateand federal judges to teach particular areas oflaw. I think the congressional response, essen-tially, is to view that as improper.

Nelson W. Polsby: This has been an eye-opener for me. Let me simply sing you an oldsong, and you can tell me whether this is wrong.The old song goes this way: “It’s congressionalsalaries that stink, and there’s no way to raisethem unless you can piggyback on the inde-pendence of the judiciary and the senior civilservice.” Therefore, judicial pay is the choo-choo train that’s pulling senior civil serviceand congressional salaries in its wake. Has thatpolitical dynamic completely changed?

Boggs: I think it goes both ways. I think differ-ent branches rise in public favor at differenttimes, or at least they think so. I think judgesbelieve that Congress believes that the judici-ary and Congress need to be tied together, orelse Congress would never get a raise. I thinkthat view was stronger in times when we

thought the public’s perception of Congresswas lower. During an era when judges arebeing heavily attacked from one side or anoth-er, that same linkage may not apply. I think it’sprudential and experiential, not fundamental.

Berman: There’s another function that wasn’tstated initially in the discussion–one that, Ithink, is never stated but exists: the envyaroused by the notion that judges should makemore money than members of Congress. Ithink that’s nuts–not for judicial independ-ence reasons, but for reasons of quality anddiversity in the judiciary–but there’s alwaysan element that wants constantly to tie con-gressional and judicial pay together. I don’tknow who’s pulling whom right now, but inthe past three or four terms, we have steeledourselves and not denied ourselves the auto-matic pay increase, and this year we grantedthe judicial Cost of Living Adjustments–al-though I think that the section requiring us todo it every year is pointless if we’re not evendoing it for ourselves.

© 2003 respectively by Judith Resnik, Danny J.Boggs, Howard Berman, Jesse Choper, Abner J.Mikva, Robert C. Post, Nelson W. Polsby, andLinda Greenhouse.

The remarks of Judith Resnik and the chartsby Judith Resnik are based on a series of essays,including “Trial as Error, Jurisdiction as Inju-ry: Transforming the Meaning of Article III,”Harvard Law Review 113 (2000): 924; “Uncle SamModernizes His Justice: Inventing the DistrictCourts,” Georgetown Law Journal 90 (2001): 607;and “Constricting Remedies: The RehnquistJudiciary, Congress, and Federal Power,” Indi-ana Law Journal 78 (2003): 223.

Supreme Court Justices Ruth Bader Ginsburg and David Souter, Librarian ofCongress James Billington, and Director of Scholarly Programs at the Libraryof Congress Prosser Gifford

Academy President Patricia Meyer Spacks (University ofVirginia) and Richard Meserve (Carnegie Institution)


Project Update

Recently announced plans forcompleting the International SpaceStation, launching a manned mis-sion to Mars, and generally setting“a new course for America’s spaceprogram” will require extensiveinternational cooperation. Yet suchcooperation is now being signifi-cantly impeded by federal govern-ment regulation of the space sci-ences, according to Academy Fel-low Eugene Skolnikoff.

Skolnikoff is Professor Emeritusof Political Science at mit and anexpert on science and public poli-cy, with particular attention to therelationship between science andtechnology and international se-curity. In a number of articles andaddresses over the past few years,he has been warning of the gravedangers to space-related scientificresearch posed by a set of federalrules called the International Traf-fic in Arms Regulations (itar).Although intended to keep re-search and technology with poten-tial military or terrorist uses outof the wrong hands, what the itarmay end up doing instead, accord-ing to Skolnikoff, is handcuffingAmerican science and industryand actually undermining U.S.national security.

Several worrisome restrictions onacademic freedom and scientificopenness and exchange have cometo bear since the terrorist attackson the United States, though prob-lems with the itar actually pre-date 9/11. Skolnikoff traces the or-igins of the current threat back to1999, when Congress transferredresponsibility for licensing the ex-port of U.S.-manufactured com-mercial satellites from the Com-merce Department’s Bureau ofExport Administration to the StateDepartment, which administers

the itar. Another significantchange made in 1999 was the ad-dition of scientific satellites to theU.S. Munitions List of items re-quiring an export license underthe itar.

An even more comprehensiveproblem became apparent as uni-versity researchers began to real-ize that routine exchanges of in-formation between American sci-entists and some of their foreigncolleagues and students–even ifthe information involved was un-classified or had long been in thepublic domain–now required alicense, with the threat of crimi-nal penalties for those who violat-ed the rules.

According to Skolnikoff, the cur-rent itar regime has adverselyaffected the space sciences: Thereare delays in proposed projects;“virulent” complaints from for-eign researchers, many of whomhave decided not to collaboratewith Americans; short-circuiteddiscussions at international scien-tific meetings; questions about

On November 22, 2003, EduardShevardnadze resigned as presi-dent of Georgia as thousands ofanti-government protesters filledthe streets, surrounding the pres-idential compound. The so-calledRose Revolution was another in a series of rapid and problematictransitions in the post-Soviet ter-ritories.

The regional and international re-verberations of conflict in or overthe borderlands of the former So-viet Union are a common focusof an Academy study on Interna-tional Security in the Post-SovietSpace. A series of volumes willemerge from the project, spon-sored by the Academy’s Com-mittee on International SecurityStudies (ciss).

The most recent volume in theseries is Swords and Sustenance: TheEconomics of Security in Belarus andUkraine, edited by Robert Legvold(Columbia University) and Cel-este Wallander (Center for Stra-tegic and International Studies).The book examines the fashion-ing of security policy under con-ditions of market transition anddependence. Previously publishedwas Thinking Strategically: Kazakh-stan, the Major Powers, and the Cen-tral Asian Nexus, edited by Legvold,which illuminates the contrast-ing strategies of China, Japan,Russia, the E.U., and the UnitedStates toward Central Asia. Forth-coming in the series is a volume,edited by Legvold and Bruno Cop-pieters (Free University, Brussels),that will discuss the sometimesviolent process of state buildingin Georgia, and the effort of Geor-gian and other leaders to fashionnational and mutual security pol-icies in the Caucasus region. Alsoforthcoming is a book, edited bySteven Miller (Harvard Univer-

sity) and Dmitri Trenin (CarnegieMoscow Center), that will focuson the politics and policy of Rus-sian defense. It will offer an as-sessment of the Russian militarythat now exists and of the furtherreforms that could (and, manybelieve, should) shape the futureof Russian military power.

The mit Press is publishing thebooks as part of the AmericanAcademy Studies in Global Secu-rity series. To order copies, callThe mit Press at 800-405-1619 orvisit http://mitpress.mit.edu.

The Academy is deeply indebtedto the Carnegie Corporation ofNew York for its support of thesestudies.

New International Security Issuesin the Post-Soviet Region


National Security:Impediment to Space Sciences?

Eugene Skolnikoff

In the effort to return to the moon,“The most important ‘how’ ques-tion,” according to Academy Fel-low Neal Lane (Rice University),“is the extent to which this will bean international effort.” Testifyingbefore the Senate Committee onCommerce, Science, and Trans-portation in January 2004, Laneobserved that “there is also rea-son for other nations to questionU.S. policy on the future use ofspace, given statements made byhigh-level U.S. government lead-ers and in military strategy docu-ments about the need to preparefor increased military activities inspace.”

To promote discussion of alterna-tive policies, the Academy’s Com-mittee on International SecurityStudies (ciss) has been engagedin a multi-year project on “Recon-sidering the Rules of Space.”

“The participants in our studybelieve that the American publicneeds to be more engaged in de-termining what our balance of in-

terests should be, and what kindsof international rules should benegotiated to protect the full rangeof our interests, both military andnon-military,” says project leaderand ciss cochair John Steinbruner(University of Maryland). He notesthat stated U.S. plans to deployspace-based weapons are inher-ently objectionable to most othercountries and exceedingly unlike-ly to command international con-sent. By bringing together variousconstituencies (commercial, sci-entific, and governmental) with adirect interest in U.S. space policy,

the Committee on InternationalSecurity Studies hopes to get thenecessary dialogue under way.

The project convened two work-shops in fall 2003. The first, heldat Rice University with the help ofNeal Lane and George Abbey (for-mer director of the Johnson SpaceCenter), focused on the implica-tions of U.S. space and defensepolicies for the commercial spaceindustry. The second, held at theHouse of the Academy, reviewedtechnical aspects of securing spaceassets. Publications from theseworkshops are planned for thespring and summer of 2004. Inaddition, the project has commis-sioned papers on Chinese perspec-tives on U.S. space plans and onRussian space policy. It is also or-ganizing a working group to studyrules of international cooperationin space.

In his testimony, Lane urged mem-bers of Congress and the adminis-tration to consider the Academy’sforthcoming work on space policyas they go forward with plans forrefocusing nasa’s future mission.

The Academy’s Committee on In-ternational Security Studies plansand sponsors research on currentand emerging challenges to globalpeace and security. For more back-ground on “Reconsidering theRules of Space,” see “Progress Re-ports on Academy Projects” in theWinter 2003 issue of the Bulletin.

The Carnegie Corporation of NewYork has generously provided sup-port for this project.


the participation of foreign grad-uate students in research projectsin American institutions; delay orcancellation of projects involvingcollaboration between universi-ties and foreign or multinationalcorporations; and “compromised”relations between certain univer-sities and nasa. These kinds ofobstacles to free and open scien-tific exchange pose a threat to whatSkolnikoff calls the “fundamentalvalues” of America’s research in-stitutions. “It is imperative thatthe nation’s research institutionscontinue to defend the opennessand the freedom to exchange in-formation which are so importantto maintaining our scientific andtechnological leadership.”

Nor is it just America’s scientificcommunity that is in jeopardy. AsSkolnikoff and other Fellows in-volved with the Academy’s Rulesof Space project learned at a recentworkshop in Houston (see accom-panying story), the American com-mercial space industry has alreadybeen seriously harmed by the re-strictions imposed by the itar.

Far from downplaying the threatsthat the itar is intended to count-er, Skolnikoff agrees that the dan-gers are real. Yet the irony behindthe current rules, he points out, isthat they may end up weakeningU.S. national security by under-mining American technologicalcapacity and international leader-ship. Hence the importance of theAcademy’s Rules of Space project,which is examining the politicsand potential of greater interna-tional cooperation in the develop-ment of space. “I don’t know yetwhat an ideal international regimein space would look like,” Skolni-koff concludes. “That’s why I’mtaking part in this project–to findout.”

National Securitycontinued from page 33

David Wright and LauraGrego (both, Union forConcerned Scientists)discuss their paper at a meeting held at theHouse of the Academy.

Some of the participants at the workshop held at Rice University: top row,left to right: Magued Iskander (MD Robotics), Karl Doetsch (Internation-al Space University), Martin Malin (American Academy), Roald Sagdeev(University of Maryland), Randy Brinkley (J. F. Lehman and Company),Eugene Skolnikoff (MIT), Neal Lane (Rice University), Darlene Freeman(SES Global Sourcing), George Abbey (Rice University); bottom row:Nancy Gallagher (University of Maryland), John Steinbruner (Universityof Maryland), Richard Garwin (Council on Foreign Relations), PatriciaMcFate (Science Applications International Corporation)

Reconsidering the Rules of Space


Conveniently located in the heartof Cambridge on a secluded five-and-a-half acre wooded estate, the House of the Academy is avail-able to Fellows and their friendsand families for meetings, recep-tions, business and personal socialevents. An elegant retreat withinthe city, the House is ideal as anintimate meeting place for smallgroups, or for larger celebrationsof up to 400 guests.

The facilities at the House includeexecutive conference rooms; a250-seat auditorium; receptionatrium and hearth; three separatedining rooms; and high-qualityaudiovisual/communication sys-tems. The expert catering staffwill help you plan a menu to suitthe needs of your group.

For more information or to bookthe House for your next event,please contact the General Man-ager of Norton’s Woods (tele-phone: 617-576-5030; email:[email protected]).

The House of the Academy: An Ideal Location for Meetings and Social Events

Moynihan Tributecontinued from page 21

haps up to and including the Pres-ident? Moynihan raised thesequestions; how prescient they aretoday.

Moynihan was one of our greatpublic servants. But he was also,as we look at his relations to theAcademy and to the kinds of issueshe brought to public attention, theideal member of our Academy.And so we of the American Acad-emy of Arts and Sciences mustnote with sadness his passing, andrecord our appreciation of the giftsof insight and understanding hebrought to us.

© 2003 by Nathan Glazer.

published with Harvard Univer-sity Press On the Law of Nations, adefense of the possibilities andprospects of international law.Moynihan was concerned withcertain cavalier actions of the Rea-gan administration, which hadpushed against and beyond thefragile restraints of internationallaw. Compared to what we haverecently seen, the issue then wasno larger than a man’s hand, butit is now a very large cloud indeed.In 1993 Moynihan published Pan-daemonium: Ethnicity in Internation-al Affairs with Oxford UniversityPress. As we look at Iraq and Israeland Palestine today–not to men-tion the Caucasus, the Congo, SriLanka, and on and on–the issuesto which Moynihan drew attentionthen have only become larger.

In 1997 Moynihan conducted Sen-ate hearings on the scope of secre-cy in the government. Yale Uni-versity Press published his lastbook, Secrecy: The American Expe-rience, in 1998. The hearings andbook dealt with an issue that canonly be of ever increasing concern.What should a democratic govern-ment keep secret from the people?And with what consequences?Moynihan was troubled by theenormous expansion of the num-ber and size of our security agen-cies entitled to stamp their work“secret.” This “secret” categoryof government documents is ofunimaginable quantity and range.How does all this shape policy,and can it be good policy when somuch is withheld from the people,from actors in government, per-

which one ethnic group dominat-ed many others. Even though conflicts among them were sup-pressed by the totalitarian regimeand were not evident, they werethere. When the Soviet Unionbroke up Moynihan was virtuallyalone among the public figureswho had pointed to the fault linesof divisiveness and the potentialweakness represented by the dom-inance of one group over many.Certainly his work on ethnicity,beginning with our book on NewYork City and extending to ethnicconflict around the world in theAcademy project of the 1970s,sensitized him to this issue.

I have given a somewhat parochialpicture of the work and mind ofDaniel P. Moynihan in concentrat-ing on his connections with theAcademy. There were so manyother issues on which he playedkey and historic roles: the reformof welfare, the shoring up of socialsecurity, the improvement of thedesign of federal buildings, thecreation of new institutions of re-search in public affairs. He was aunique figure in American intel-lectual and political life. It was saidof him that he had written morebooks than many members of theSenate had read. His work as asenator for twenty-four years–and there are no sabbaticals in theSenate–meant that the writing of books was limited to his sum-mers, and some were inevitablysketchy and brief. But when oneconsiders his last few books onesees immediately how his mindwas naturally drawn to and en-compassed the kind of issue thatthe Academy is best at address-ing: one that for its better under-standing inherently requires bring-ing together people from manydisciplines and from many worlds.

In his last books, he demonstrat-ed his continued remarkable abil-ity to seize on key issues whosesignificance would only becomegreater in time. In 1990, Moynihan


Around the Country

The Western Center held a StatedMeeting on September 13, 2003, atthe Los Angeles County Museumof Art (lacma), in conjunctionwith the exhibition “Old Masters,Impressionists, and Moderns:French Masterworks from theState Pushkin Museum, Moscow.”Academy Fellow Stephanie Barron,senior curator of modern and con-temporary art and vice presidentof education and public programsat lacma, presented a brief his-tory of the Pushkin Museum fromits founding in the late nineteenthcentury to the present day, andcommented on paintings in theexhibition by Degas, Van Gogh,Cezanne, Braque, and Matisse.Fellow Thomas Crow, professorof art history at the University ofSouthern California and directorof the Getty Research Institute atthe Getty Center in Los Angeles,spoke on “Collecting and Displayas Subjects of History.” His talkfocused on the influence of Cath-erine the Great on the eighteenth-century French painter Jean-BaptisteGreuze, and on the impact ofearly-twentieth-century collectorsSergei Shchukin and Ivan Morozovon Russian art, just prior to theRussian Revolution.

Edward Feigenbaum (StanfordUniversity) and Penny Nii

Western Center cochair WalterFitch (uc Irvine) organized anUnderstated Meeting of Fellowsat uc Irvine on October 7, 2003.Safi Qureshey, managing partnerof Skyline Capitol Partners andmember of the Dean’s Board ofDirectors, uc Irvine GraduateSchool of Management, led an in-formal conversation on politicalstability in the Middle East andFar East. As a long-term advisorto the government of Pakistan,Qureshey also discussed the pol-itical and economic situation in

that country, emphasizing the needto develop strategies to addresssuch issues as unemployment, in-flation, management of water re-sources, and the advancement ofeducational opportunities.

University of California, Irvine

Los Angeles County Museum of Art

Clockwise: Academy staff Roberta Peter-son and Jean Keating, David Easton (UCIrvine), Paul Silverman (Irvine, Calif.), Wil-liam Daughaday (UC Irvine), Jack Peltason(UC Irvine), Safi Qureshey (Skyline CapitolPartners), Walter Fitch (UC Irvine), Eliza-beth Loftus (UC Irvine), and FranciscoAyala (UC Irvine). Not shown: R. DuncanLuce, Masayasu Nomura, A. Kimball Rom-ney, and Brian Skyrms (all, UC Irvine)

Speakers Stephanie Barron and Thomas Crow

New member Donald Glaser (UC Berkeley), Lynn Glaser,and new member Vincent Crawford (UC San Diego)


President of Rice University Mal-colm Gillis hosted an on-campusreception for Academy Fellows in fall 2003. Academy PresidentPatricia Meyer Spacks attendedthe reception, where participantsengaged in a general discussion ofteaching and research in American

Vice President for the MidwestCenter Martin Dworkin (Uni-versity of Minnesota) welcomedFellows and guests to the AdlerPlanetarium in Chicago for theCenter’s fall Stated Meeting anddinner. The speaker was notedastrophysicist Michael S. Turner,Raumer Distinguished Professorat the University of Chicago andAssistant Director for Mathemat-ical and Physical Sciences at theNational Science Foundation. In a richly illustrated presentation,

Last fall, the National HumanitiesCenter hosted an Academy Stat-ed Meeting in Research TrianglePark, N.C. Edward Perl, the SarahGraham Kenan Professor of Celland Molecular Biology at the Uni-versity of North Carolina at Chap-el Hill, welcomed members andguests, including Academy Pres-ident Patricia Meyer Spacks andExecutive Officer Leslie Berlo-witz. John Hope Franklin, JamesB. Duke Professor Emeritus ofHistory at Duke University, intro-duced Walter E. Dellinger, III, who

spoke on “The Supreme Courtand American Democracy 2004.”Dellinger is the Douglas B. MaggsProfessor of Law at Duke Univer-sity. The National HumanitiesCenter, nearing its 25th anniver-sary, was founded by the Academyin corporation with Duke Univer-sity, the University of North Caro-lina, and North Carolina StateUniversity. At the reception thatfollowed, Geoffrey Harpham, pres-ident and director of the NationalHumanities Center, greeted theattendees.

National Humanities Center

Speaker Michael S. Turner

Turner described the recent revo-lution in cosmology, resulting fromthe interaction of technologicaladvances and scientific ideas. Hefocused on the theories and instru-ments that have produced greaterunderstanding of the “inflation”of the universe and of the slowlymoving particles, know as ColdDark Matter, that are purportedto hold the universe together. AsTurner observed, “It’s hard to ar-gue with those who call this theGolden Age of cosmology.”

Adler Planetarium, Chicago

New Fellows Rochelle Esposito andDonald Lamb (both, University of Chicago)

John Hope Franklin, Walter E. Dellinger, III, President of the Academy Patricia MeyerSpacks, and Edward Perl

universities, with particular em-phasis on the need for greater in-terdisciplinary perspectives in the curricula of academic depart-ments and professional schools.The Academy is grateful to Fel-low James Kinsey for planning the event.

Rice University

James Kinsey

Malcolm Gillis


In My Opinion

What happened seems to be clear.Too many examples of extremecorporate behavior, and the com-plicating complacency of pre-sumed professionals–directors,auditors, lawyers, and bankers–have severely harmed the trustand confidence essential to freemarket capitalism.

Why this happened is, of course,less clear. Surely incentives werewrong and checks and balancesfailed to work. The seeds of theseproblems probably date back tothe 1980s, when Corporate Amer-ica was seen as “stodgy,” a “club”uninterested in financial perfor-mance, stockholders or productquality, and a “loser” to new in-ternational competition–partic-ularly from Japan. This changed.In remarkable ways, investors be-came the dominant and aggres-sive feared force. Cynics wouldsay that the balance and judgmentexpected of management was“bought off” by large stock-basedcompensation awards with veryshort-term payoff and limitlessbonus payments. The mantra ofstockholder value was enshrinedin companies, boardrooms, ana-lyst reports, and the business press.Analysts became all-importantand stock price became the meas-ure of performance and self-worth(psychologically and literally!).Too often, integrity and responsi-bility were crowded out by share-

holder value and the cult of thesuper-highly paid ceo.

What is to be done? At one levelthe problem is a straightforwardquestion of values. Companiesare expected to be honest and re-port results as they are. Auditors,lawyers, and bankers are expect-ed to maintain the values derivedfrom their professions. Invest-ment bankers are also expectedto be professionals, and analyststo be critical thinkers providingthe best possible advice to pro-spective owners of securities. Reg-ulators and boards are expectedto be sources of balance and judg-ment. Individuals are expected tostand up and be independent of“go along” norms.

The cult of short-term stockhold-er value has been corrupting. In-vestors clamoring for performanceand share price increases, coupledwith unrestrained compensationlinked to short-term stock prices,has been demonstrated to be aflawed structure. Similarly, thelink between investment bankingand retail distribution, without anoverarching management struc-ture that is responsible, visible,and accountable, has proven tobe flawed. So too has been therole of boards and the function-ing of auditors.

So, at a more profound level,what is to be done? I have a fewthoughts:

1. Management needs a morewholesome objective thanshareholder value. I suggestevolutionary success.

2. Boards need to accept and be held accountable for new re-sponsibilities, particularlymanagement values and be-haviors, and the impact ofincentives.

3. Structural risks must be offset by clear responsibilities and rules. Those who choose to linkinvestment banking, retail anal-ysis, and distribution must beheld to a high standard of per-formance.

4. Auditors and lawyers must be held to be professionals first and foremost. Their expanded activities that raise issues ofconflict should be avoided. We can afford to pay the cost ofprofessionalism.

5. The final challenge is to sur-round the enterprise with a self-evaluating and self-correcting process to ensure continuity across time.

Management Objective

My own view is that manage-ment’s objective should not be“shareholder value,” which, atleast in its current manifestation,is too simplistic, but rather evo-lutionary success. Evolution, a dy-namic concept, recognizes thereality of continuous change andadaptation. It incorporates thenotion of the environment–cus-tomers, competitors, regulators

alike–in defining the determi-nants of success. It embraces shareprice (or cost of capital) as a keysuccess factor, but not to the ex-clusion of others.

A “Report Card” dealing withevolutionary success would bebroader and more textured thanone limited to shareholder value.It would bring with it more healthydiscussion within managements,with the board and with the ex-ternal community. The conceptalso embeds a more relevant timeframe in all these considerations.If well implemented, it would behard to distort–a problem thatturned out to be fatal to share-holder value. (How many boardshave said “Earnings are good, shareprice is up; all must be well,” onlyto find that they were wrong?)

Board Responsibility

One of the most striking featuresof this history is the failure ofboards. Shareholders pressureboards to deliver “results”; yetthey fail to appreciate the cost ofcorrupting the role of these bodies.We must rely on the board to be

John S. Reed

All is not well in Corporate America. Of greatest concern isthe seemingly broad-based breakdown of values and respon-sibilities highlighted by Enron, WorldCom, Arthur Andersen,the Wall Street “settlement,” and so forth. What happened?Why? What is to be done about it? These are among the ur-gent questions being posed by an ongoing study of corporateresponsibility at the American Academy of Arts and Sciences.

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


neh Grantcontinued from page 1

(a study of the varied roles playedby white and black women in thehistory of lynching in the Amer-ican South). “I’ve got two yearsbefore I come up for tenure, andthis is giving me a year to actuallybang out the book,” she explains.“I feel really lucky that the Acad-emy has given me a place to work,as well as a community of schol-

the guarantor of values, balance,judgment, and accountability.

We have to look to individualboard members, board organiza-tion and function, the nature ofboard discussion, and the board’saccountability. Board membersmust be sophisticated and com-petent, and cannot be socially orfinancially beholden to manage-ment. Boards must be organizedto do their jobs. While it is notvital to distinguish between aChairperson and a ceo, it is vitalto recognize that these are twodifferent functions. If a board isto “do its job,” the job must bedefined. Boards must:

1. know management’s plans and be routinely apprised of pro-gress and problems relating tothem;

2. understand and be comfortablewith the company’s strategy andits key underlying assumptions,and understand the strategiesof the company’s competitors;

3. understand and be comfortablewith the business risks and social expectations for the firm,including control and account-ing issues; and

4. know the management and be routinely apprised of develop-ment and succession plans.

The board must routinely meet inexecutive session, as well as alonewith the ceo; discuss and criti-cize its own functioning from timeto time; and specifically discuss,and be satisfied with, the valuesand working environment sur-rounding the senior team, beingparticularly mindful of the po-tential problems stemming fromcompensation and reward prac-tices. Finally, the board should beable to demonstrate to a reason-able degree that it has understoodand fulfilled these responsibili-ties. Errors will be made, but theyshould not be errors of omission.

Structural Risks

Origination and distribution, par-ticularly at the retail level, neednot be linked in investment banks.Yet they often are, creating thepotential for conflict. Those whochoose to operate in this wayshould be required to certify thatthe ceo and other senior man-agement have responsibility formaintaining appropriate separa-tions; and that failures to prop-

erly supervise be treated as (a) personal and (b) criminal, as is currently our practice with pricefixing.

Auditors, Lawyers, and Professionals

Over the last forty years, therehas been a gradual but continualmovement away from standardsand values toward processes andprocedures. Where we used to lookto accountants to help us proper-ly account for a transaction, wenow look to them to verify that it“complies with gaap.” There isa big difference. The same is truewith the law, moving from “Is itright?” to “Can it be defended?”What used to be part of an im-mune system has become tooclose to being part of operatingmanagement. There are many ex-planations for this change and therelationship cannot be legislatedto return to a world that was prob-ably never perfect. However, thevalue and need for true profes-sionalism must be reaffirmed.

More broadly, Corporate Amer-ica must reaffirm a commitmentto basic values if our system ofcapitalism is to regain the pub-lic’s trust.

ars with whom I can discuss myfield, my work, and the process of writing.”

The current group of VisitingScholars represents the fields ofAmerican literature, Americanhistory, African American stud-ies, law, political science, and in-ternational relations, with re-search topics ranging from raceand ethnicity in America to refu-gee repatriation after civil war.

In addition to helping advance thevsp, the neh grant will help fundAcademy efforts to extend knowl-edge and appreciation of the hu-manities in America through sym-posia, lectures, and other meansof public education and outreach.These programs will complementthe Academy’s ongoing Human-ities Indicators database projectand its preparation of a two-volume study, which maps the

history of, and trends within, thehumanities in America over thelast one hundred years.

John S. Reed, a Fellow of theAcademy since 1998, is theinterim chairman of theNew York Stock Exchange.This paper, written prior tohis joining the nyse, wasprepared for the Academy’sstudy on corporate responsi-bility and will be included ina forthcoming OccasionalPaper: “Beyond Regulation:Corporate Responsibility inAmerica.” Mr. Reed current-ly serves as Treasurer of theAmerican Academy.


Class II–Biological Sciences

Randy Schekman, Section 2–Cellular and Developmental Biology, Microbiology,and ImmunologyUniversity of California, Berkeley

Gerald Fischbach, Section 3–Neurosciences,Cognitive Sciences, and Behavioral BiologyColumbia University

Class V–Public Affairs, Business, and Administration

Linda Greenhouse, Section 1–Public Affairs,Journalism, and CommunicationsNew York Times

Richard Meserve, Section 1–Public Affairs,Journalism, and CommunicationsCarnegie Institution of Washington

Neal Lane, Section 3–Educational, Scientific,Cultural, and Philanthropic AdministrationRice University

Dear Fellows:

As Secretary of the Academy, I submitthe following list of nominees for elec-tion as Councilors and Members of theMembership and Nominating Commit-tees. Candidates for the NominatingCommittee are recommended by theCouncil; all other candidates are rec-ommended by the NominatingCommittee.

Additional candidates for any of thesepositions may be proposed by writtenpetition from the membership. A validpetition must be signed by twenty-fiveFellows of the Academy, representing at least four institutions from differentgeographical areas. If you submit such apetition to the Academy by April 12, thename(s) of your candidate(s) will ap-pear on the final ballot and, in the case of Councilors, will be accompanied by abrief biography, which must be providedby the petitioners. In proposing a nomi-nee, please make sure that your candidateis willing to stand for election and to serve if elected.

The ballot requesting your vote will besent by first-class mail in early April.

If you have any questions about the sub-mission of a proposal, please contactLeslie C. Berlowitz, Executive Officer(617-576-5010).

I want to thank the Chair of the Nominat-ing Committee, Denis Donoghue, and the members of the committee for theirefforts on our behalf.

Emilio BizziSecretaryMarch 2004

Nominating Committee Report

Class I–Mathematical and Physical Sciences

Chair,William Happer, Section 2Princeton University

Srinivasa Varadhan, Section 1New York University

Douglas Lauffenburger, Section 5Massachusetts Institute of Technology

Class II–Biological Sciences

Gordon N. Gill, Section 5University of California, San Diego

Class III–Social Sciences

Joyce Marcus, Section 1University of Michigan

Class IV–Humanities and Arts

Chair, Philip Khoury, Section 2Massachusetts Institute of Technology

Stephen Toulmin, Section 1University of Southern California

Rachel Hadas, Section 4Rutgers University

Kay Kaufman Shelemey, Section 5 (Music)Harvard University

John Walsh, Section 5 (Art)Yale University

Class I–Mathematical and Physical Sciences

Eugene WongUniversity of California, Berkeley

Class III–Social Sciences

John SteinbrunerUniversity of Maryland

committee on membership(to serve for three years)

nominating committee(to serve for three years)

The preliminary list is for purposes of notification only. The ballot requesting yourvote will be mailed to you in early April.

Nominating Committee Candidates Proposed for Open Positions in 2004

councilors(to serve for four years)


Dædalus

Darrin M. McMahon, “From the happi-ness of virtue to the virtue of happiness:400 b.c.–a.d. 1780”

Robert Biswas-Diener, Ed Diener & MayaTamir, “The psychology of subjective well-being”

Richard A. Easterlin, “The economics ofhappiness”

Anna Wierzbicka, “‘Happiness’ in cross-linguistic & cross-cultural perspective”

Julia Annas, “Happiness as achievement”

Bernard Reginster, “Happiness as aFaustian bargain”

Martha C. Nussbaum, “Mill betweenAristotle & Bentham”

Robert H. Frank, “How not to buy happiness”

Martin E. P. Seligman, “Can happiness betaught?”

Poetry: Richard Howard, “On a photograph byMike Disfarmer”

Fiction: Erin McGraw, “Appearance of Scandal”

Notes: S. George H. Philander, “El Niño & theuncertain science of global warming”

Linda Hutcheon, “The art of adaptation”

Powerful philosophical conceptions conceal, even while they reveal. Byshining a strong light on some genuinely important aspects of human life,Jeremy Bentham’s Utilitarianism concealed others. His concern with aggre-gating the interests of each and every person obscured, for a time, the factthat some issues of justice cannot be well handled through mere summingof the interests of all. His radical abhorrence of suffering and his admirableambition to bring all sentient beings to a state of well-being and satisfactionobscured, for a time, the fact that well-being and satisfaction might not beall there is to the human good, or even all there is to happiness. Otherthings–such as activity, loving, fullness of commitment–might also beinvolved.

–Martha C. Nussbaum on “Mill between Aristotle & Bentham”

If we try to measure the happiness of lives in terms of smiley-face feelings,the results will be grotesque. I have seen a survey that asks people to meas-ure the happiness of their lives by assigning it a face from a spectrum with avery smiley face at one end and a very frowny face at the other. Suppose thatyou have just won the Nobel Prize; this surely merits the smiliest face. Butsuppose also that you have just lost your family in a car crash; this surelywarrants the frowniest face. So, how happy are you? There is no coherentanswer–unless you are supposed to combine these points by picking theindifferent face in the middle!

–Julia Annas on “Happiness as achievement”

Each of us has only a fixed amount of time available for family life, healthactivities, and work. Do we distribute our time in the way that maximizesour happiness? The answer, I believe, is no, for a reason that has alreadybeen suggested: we decide how to use our time based on the false belief thatmore money will make us happier. Because of this ‘money illusion,’ we allo-cate an excessive amount of time to monetary goals, and shortchange non-pecuniary ends such as family life and health . . . . Could we make our liveshappier? 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 lifeand health.

–Richard A. Easterlin on “The economics of happiness”

In 1780 the Academy was chartered as a forum “to cultivate every art and science which maytend to advance the interest, honour, dignity, and happiness of a free, independent, and virtuouspeople.” Dædalus, the Journal of the American Academy of Arts and Sciences, will explore thetheme of happiness from a variety of perspectives in its Spring 2004 issue. Excerpts from threeessays follow:

On Happiness


NoteworthyDelegates from theAmerican Academy to:

National Humanities Center

Alan Brinkley (Columbia Uni-versity)

Denis Donoghue (nyu)

American Council of LearnedSocieties

Bruce Redford (Boston University)

American Association for theAdvancement of Science

Edward R. Perl (University ofNorth Carolina at Chapel Hill)

International Institute forApplied Systems Analysis

Simon Levin (Princeton Uni-versity)

Select Prizes and Awards

Wolf Prizes, 2004

ChemistryHarry Gray (California Instituteof Technology)

MedicineRobert Weinberg (mit) and RogerTsien (University of California,San Diego)

Arts-MusicMstislav Rostropovitch (Washing-ton, D.C.) and Daniel Barenboim(Chicago Symphony Orchestra)

Benoit Mandelbrot (Yale Univer-sity) received the 2003 Japan Prize for Science and Technology,awarded by the Science and Tech-nology Foundation of Japan.

Roger Bagnall (Columbia Univer-sity), Robert Brandom (Universityof Pittsburgh), Anthony Grafton(Princeton University), and Chris-topher Ricks (Boston University)received the Mellon DistinguishedAchievement Award from the An-drew W. Mellon Foundation.

Timothy Berners-Lee (mit) hasbeen made a Knight Commander,Order of the British Empire byQueen Elizabeth II.

James O. Freedman, former Acad-emy President (Dartmouth Col-lege), received the American Jew-ish Committee National Distin-guished Leadership Award.

Roeland Nusse (Stanford Univer-sity) was honored by ScientificAmerican as one of the fifty bestresearch leaders of 2003.

David Freedberg (Columbia Uni-versity) received the Ralph WaldoEmerson Award from the Phi BetaKappa Society for The Eye of theLynx, published by the Universityof Chicago Press.

Andrew H. Knoll (Harvard Univer-sity) received the Phi Beta KappaBook Award in Science for Life ona Young Planet, published by Prince-ton University Press.

Federico Capasso (Harvard Uni-versity) was awarded the 2004Arthur L. Schawlow Prize in LaserScience by the American PhysicalSociety.

Seymour Benzer (California Insti-tute of Technology) received the2004 Bower Award and Prize forAchievement in Science in theField of Brain Research from TheFranklin Institute.

Robert Langer, medical researcher(mit), Julius Richmond, healthpolicy professor (Harvard Univer-sity), and August Wilson, play-wright (Seattle) were among therecipients of the Heinz FamilyFoundation awards, established by Teresa Heinz (Heinz FamilyPhilanthropies).

Mike Nichols, director (New YorkCity), and Itzhak Perlman, violin-ist (New York City), were award-ed 2003 Kennedy Center Honors.

R. John Collier (Harvard MedicalSchool) received the Bristol-MyersSquibb Award for DistinguishedAchievement in Infectious DiseasesResearch.

Edward Ayers (University of Vir-ginia) is among the recipients of the 2003 U.S. Professors of theYear award, recognizing dedica-

tion to undergraduate teachingand a commitment to students.

Harry B. Gray (California Insti-tute of Technology) received the2004 Benjamin Franklin Medal inChemistry from The Franklin In-stitute.

Richard M. Karp (InternationalComputer Science Institute) re-ceived the 2004 Benjamin Frank-lin Medal in Computer and Cog-nitive Science from The FranklinInstitute.

Timothy Springer (Harvard Med-ical School) and Eugene Butcher(Stanford University) received theCrafoord Prize of the Royal Swed-ish Academy of Sciences for theirresearch on white blood cells.

Steven Levitt (University of Chi-cago) has been awarded the JohnBates Clark Medal, presentedevery two years by the AmericanEconomic Association to the econ-omist under 40 who has made thegreatest contribution to the disci-pline.

New Appointments

David Brady (Stanford University)has been appointed deputy direc-tor at the Hoover Institution.

Edward M. Scolnick (Merck Re-search Laboratories) has been ap-pointed to the Clinical AdvisoryBoard of Elixir Pharmaceuticals, Inc.

Paul Schimmel (Scripps ResearchInstitute) has joined the ScientificAdvisory Board of Metabolon, Inc.

Arnold Rampersad (Stanford Uni-versity) has been appointed cog-nizant dean for the humanities atStanford University.

Simon Levin (Princeton Univer-sity) has been appointed chair ofthe U.S. Committee for iiasa andof the iiasa Governing Council.

James Cuno (Courtauld Instituteof Art, London) has been namedDirector of the Art Institute ofChicago.

Amy Gutmann (Princeton Uni-versity) will succeed Judith Rodinas President of the University ofPennsylvania on July 1, 2004.

Select Publications

Fiction

Louis Auchincloss (New YorkCity). The Scarlet Letters. Hough-ton Mifflin Co., November 2003

James Lehrer (Public BroadcastingSystem). Flying Crows. RandomHouse, May 2004

Joyce Carol Oates (Princeton Uni-versity). Rape: A Love Story. Carrolland Graf, December 2003; I Am No One You Know. HarperCollins,April 2004

Richard Stern (University of Chi-cago). Stitch; Other Men’s Daugh-ters; and Natural Shocks. Reissuedby Northwestern University Press,Summer 2004. Almonds to Zhoof,the Collected Stories of Richard Stern.Northwestern University Press,Fall 2004

Anne Tyler (Baltimore, Maryland).The Amateur Marriage. Knopf, Jan-uary 2004

Alice Walker (Berkeley, Califor-nia). Now Is the Time to Open YourHeart. Random House, April 2004

Poetry

Paul Auster (New York City). Col-lected Poems. Overlook Press, Janu-ary 2004

Louise Erdrich (Minneapolis, Min-nesota). Four Souls. HarperCollins,June 2004

C. K. Williams (Princeton Univer-sity). The Singing. Farrar, Straus &Giroux, November 2003

Nonfiction

Walter Abish (New York City).Double Vision: A Self-Portrait. Knopf,February 2004

Bruce Ackerman (Yale University)and James Fishkin (Stanford Uni-versity). Deliberation Day. Yale Uni-versity Press, March 2004

Jagdish Bhagwati (Columbia Uni-versity). In Defense of Globalization.Oxford University Press, March2004

Alan S. Blinder (Princeton Univer-sity). The Quiet Revolution: CentralBanking Goes Modern. Yale Univer-sity Press, April 2004


Zbigniew Brzezinski (Center forStrategic and International Studies,Washington, D.C.). The Choice:Domination or Leadership. BasicBooks, March 2004

James MacGregor Burns (Univer-sity of Richmond) and Susan Dunn.George Washington, a volume in theAmerican President’s Series, edit-ed by Arthur Schlesinger, Jr. (NewYork City). Holt/Times, January2004

Robert Dallek (Boston University).Lyndon B. Johnson: Portrait of a Pres-ident (abridged). Oxford Univer-sity Press, November 2003

Lorraine Daston (Max-Planck-In-stitut fur Wissenschaftsgeschichte),editor. Things That Talk: ObjectLessons from Art and Science. mitPress, April 2004

Gerald M. Edelman (NeurosciencesResearch Foundation, Scripps Re-search Institute). Wider Than theSky. Yale University Press, March2004

Paul Ehrlich (Stanford University)and Anne Ehrlich (Stanford Uni-versity). One with Nineveh: Politics,Consumption, and the Human Future.Island Press, May 2004

Peter Eisenman (Eisenman Archi-tects, Yale University). EisenmanInside Out: Selected Writings, 1963–1988. Yale University Press, May2004

Thomas Eisner (Cornell Univer-sity). For Love of Insects. HarvardUniversity Press, November 2003

Harry G. Frankfurt (PrincetonUniversity). The Reasons of Love.Princeton University Press, Feb-ruary 2004

Marion R. Fremont-Smith (Ken-nedy School of Government, Har-vard University). Governing Non-profit Organizations: Federal andState Law and Regulation. HarvardUniversity Press, May 2004

John Lewis Gaddis (Yale Univer-sity). Surprise, Security, and theAmerican Experience. Harvard Uni-versity Press, March 2004

Howard Gardner (Harvard Grad-uate School of Education). Chang-ing Minds: The Art and Science ofChanging Our Own and Other

People’s Minds. Harvard BusinessSchool Press, April 2004

Allan Gibbard (University of Mich-igan). Thinking How to Live. HarvardUniversity Press, October 2003

Owen Gingerich (Harvard Uni-versity). The Book Nobody Read:Chasing the Revolutions of NicolausCopernicus. Walker, March 2004

Chalmers Johnson (Japan PolicyResearch Institute, California).The Sorrows of Empire: Militarism,Secrecy and the End of the Republic(The American Empire Project).Metropolitan Books, January 2004

Frank Kermode (University ofCambridge). The Age of Shakespeare.Modern Library, February 2004

Brian Lamb (c-span), editor.Booknotes: On the American Char-acter–People, Politics, and Conflictin American History. Public Affairs,March 2004

Benoit Mandelbrot (Yale Univer-sity). Fractals and Chaos: The Man-delbrot Set and Beyond. Springer-Verlag, January 2004

Martin Marty (University ofChicago). Martin Luther. Viking/Lipper, February 2004

Rafael Moneo (Harvard Univer-sity). Theoretical Anxiety and DesignStrategies in the Work of Eight Con-temporary Architects. mit Press,May 2004

Joseph S. Nye, Jr. (Kennedy Schoolof Government, Harvard Univer-sity). Soft Power: The Means to Suc-cess in World Politics. Public Affairs,April 2004

Stanley G. Payne (University ofWisconsin-Madison). The SpanishCivil War, the Soviet Union, and Com-munism. Yale University Press, May2004

Jaroslav Pelikan (Yale University).Interpreting the Bible and the Con-stitution. Yale University Press,May 2004

Marjorie Perloff (Stanford Uni-versity). The Vienna Paradox. NewDirections Press, May 2004

Richard Pipes (Harvard Univer-sity). Viki: Memoirs of a Non-Belonger. Yale University Press,November 2003

We invite all Fellows and For-eign Honorary Members to sendnotices about their recent andforthcoming publications, sci-entific findings, exhibitions andperformances, and honors andprizes to [email protected] keep us informed of yourwork so that we may share itwith the larger Academy com-munity.

Don Michael Randel (Universityof Chicago). The Harvard Diction-ary of Music, Fourth Edition. Har-vard University Press, November2003

Anne-Marie Slaughter (PrincetonUniversity). A New World Order.Princeton University Press,March 2004

Garry Wills (Northwestern Uni-versity). Negro President: Jeffersonand the Slave Power. HoughtonMifflin, November 2003

Perez Zagorin (Charlottesville,Virginia). How the Idea of ReligiousToleration Came to the West.Princeton University Press,November 2003

Exhibitions

Chuck Close: Prints: Process andCollaboration. The MetropolitanMuseum of Art through April 18,2004.

Eric Fischl: Cosmos and Chaos: A Cultural Paradox, RobertsonMuseum and Science Center, Bing-hamton, N.Y., through April 30,2004.

Lee Friedlander: Lee Friedlander:American Musicians, Toledo Mu-seum of Art through May 2, 2004.

David Hockney: The Artful Teapot,Mint Museum of Craft & Design,Charlotte, N.C., through May 30,2004.

Cindy Sherman: The Last PictureShow, ucla Hammer Museumthough May 11, 2004; Strange Days,Chicago Museum of Contempo-rary Art through July 4, 2004; and The Unseen Cindy Sherman:Early Transformations (1975–1976),Montclair Art Museum in NewJersey through August 1, 2004.


From the Archives

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

Penobscot Bay Expedition

“[I]t is but seldom that a total eclipse of the sun is seen inany particular place. A favourable opportunity presentingfor viewing one of these eclipses on October 27, 1780, theAmerican Academy of Arts and Sciences, and the Universityat Cambridge, were desirous to have it properly observed inthe eastern parts of the State, where, by calculation, it wasexpected it would be total. With this view they solicited thegovernment of the Commonwealth, that a vessel might beprepared to convey proper observers to Penobscot-Bay [nowMaine]; and that application might be made to the officerwho commanded the British garrison there, for leave to takea situation convenient for this purpose.

“Though involved in all the calamities and distresses of asevere war, the government discovered all the attention andreadiness to promote the cause of science, which could havebeen expected in the most peaceable and prosperous times;and passed a resolve, directing the Board of War to fit out theLincoln galley to convey me to Penobscot . . . .

“We took with us an excellent clock, an astronomical quad-rant of 2 feet radius . . . , several telescopes, and such otherapparatus as were necessary.”

Williams’ account includes what probably was the firstdescription of Baily’s beads (named for British astronomerFrancis Baily, who, in 1836, noted the light effect producedduring an eclipse by the uneven surface of the moon). Somefifty years earlier, Williams had written: “Immediately afterthe last observation, the sun’s limb became so small as toappear like a circular thread, or rather like a very fine horn.Both the ends lost their acuteness, and seemed to break off inthe form of small drops or stars; some of which were round,and others of an oblong figure. They would separate to a smalldistance: Some would appear to run together again, and oth-ers diminish until they wholly disappeared.”

Photograph of Baily’s beads, taken in1995 from Dundlod, India, using ahigh-quality 4-inch aperture refractortelescope. The telescope was mount-ed on a motorized equatorial tripod,which allows the telescope to trackthe Sun.

An illustration of Baily’s beads printed in the Academy’s Memoirs (1785).

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Norton’s Woods, 136 Irving Street, Cambridge, Massachusetts 02138telephone 617-576-5000, fax 617-576-5050,

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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, StevenMarcus, 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 2004Issued as Volume lvii, Number 2© 2004 by the American Academy of Arts & Sciences

The Bulletin, Proceedings of the American Academy of Arts & Sciences, (issn0002–712x) is published quarterly by the American Academy of Arts & Sciences. Periodicals rate postage paid at Boston ma, and additionalmailing offices. Postmaster: Send address changes to Bulletin, AmericanAcademy of Arts & Sciences, 136 Irving Street, Cambridge ma 02138.

The views expressed in the Bulletin are those held by each contributor andare not necessarily those of the Officers and Fellows of the AmericanAcademy 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

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