Supreme Power: Franklin Roosevelt vs. the Supreme Court
By Jeff Shesol
(W.W. Norton, 656 pp., $27.95)

In 1937 President Roosevelt tried to “pack” the Supreme Court--increase its size so that he could fill the vacancies thus created with liberals, who would shift the balance of power from the conservative majority that had invalidated a number of New Deal laws. Surprisingly--considering the overwhelming margin by which Roosevelt had been re-elected in 1936, the Democrats’ lock on both houses of Congress, and the pertinacity with which he pushed his plan--the Court-packing bill never even came to a vote.

This episode, I would guess, is known to few Americans, and interests still fewer--mainly students of the Supreme Court. It is therefore surprising that in 2010 a book of more than six hundred pages should appear written not by a law professor or an academic historian but by a speechwriter for President Clinton, and aimed at a popular audience, though its seventy-two pages of notes and bibliography attest to the depth of the author’s scholarship. It is still more surprising that Jeff Shesol’s book should be timely, for the light it casts on the politics of our current economic situation and on the situation itself. The book is also splendid to read. It will fascinate anyone who is interested in Roosevelt, the New Deal, the 1930s, Congress, the presidency, the Great Depression, judges, the Supreme Court, or constitutional law.

When Roosevelt was inaugurated in March 1933, the American economy was in dreadful shape. The unemployment rate was 25 percent; the banking system was in a state of near paralysis because the fear and actuality of numerous bank failures had caused massive withdrawals (there was no deposit insurance); economic output had fallen by one-third since 1929, and prices had fallen by 20 percent. Falling prices sound like a good thing, but they can be a disaster. Because wages even in a depression tend to be sticky, falling prices reduce firms’ revenues but not their labor costs, so they have to lay off workers to bring their costs in line with their shrunken revenues. And consumers who expect prices to continue falling will hold off on buying. Desperate to get them to open their wallets, firms have to cut prices even more drastically and thus lay off even more of their workers to control their costs, accelerating the economy’s swoon.

Roosevelt did four things immediately upon taking office to restart the economy. The first was to boost public confidence by delivering an inspiring inaugural address, inspiring not only in content (“we have nothing to fear but fear itself”--false, but reassuring) but also in the upbeat manner of his delivery. Confidence is all-important in getting businessmen to invest and consumers to buy; without confidence, both groups tend to hoard their money rather than spend it, and economic activity droops.

Roosevelt’s second measure was to declare a bank holiday. All banks were shut down while federal examiners pored over their books. After a few days, most of the banks were pronounced sound (this was sleight of hand--there wasn’t enough time, or enough bank examiners, to examine thousands of banks carefully) and allowed to re-open. The public was reassured, and the drain of bank capital ceased, so money was again available for borrowing by businessmen and consumers.

Third, Roosevelt took the United States off the gold standard. Until then, anyone could exchange the paper dollars issued by the Federal Reserve for gold. This limited the supply of dollars, because if the Fed increased the supply each dollar would be worth less, so people would exchange their paper dollars for gold and the government’s gold holdings would rapidly be depleted. With the government off the gold standard, the Fed could and did increase the money supply, which increased the ratio of dollars to goods, thus causing inflation. That was deliberate. Inflation, by increasing prices, reduces real wages (assuming, as is plausible, that in a depression employers can resist demands for wage increases even if they cannot force wage reductions) and therefore reduces producers’ costs. It also induces consumers to spend because the purchasing power of any money they hoard will be declining. And by reducing indebtedness it provides an additional encouragement to consumers to spend--and the more they spend, the more that output and hence employment will rise. Inflation also reduces the value of the dollar relative to foreign currencies. That makes exports cheaper and imports more expensive, which stimulates domestic production--production for export but also production of substitutes for the now more costly imported goods. And fourth, Roosevelt instituted public works projects that, within months, put millions of the unemployed to work.

So far, so good. But at his urging, Congress at the outset of the new administration passed a number of statutes, of which the most important were the National Industrial Recovery Act and the Agricultural Adjustment Act, that impeded recovery from the depression. (A forgivable weakness of Shesol’s book is that he does not recognize the economic incoherence of the New Deal program.) Since “ruinous competition” was (incorrectly) believed to be a cause of the depression, the ironically named Recovery Act encouraged industries to establish codes of “fair competition,” which if approved by the president became binding, and which essentially were agreements among competing firms to fix prices and, in conjunction with unions, wages. The effect was higher prices and higher wages. The higher prices were real rather than merely inflationary; they were cartel prices that reduced output and employment. And wage increases retard economic recovery. The agriculture act was designed to increase farm prices by reducing output, so again the effect was that of a cartel. Similar output-reducing statutes were enacted for the coal and oil industries.

These New Deal laws and others were invalidated by the Supreme Court in 1935 and 1936, though not because they were economically counterproductive. The Court opposed them because they delegated too much legislative power to the executive branch (that was the main ground on which the Recovery Act was invalidated), or because they exceeded Congress’s power to regulate commerce (for example because agriculture and mining were deemed local).

The Court that invalidated these laws was composed of three factions: a liberal faction of Brandeis, Cardozo, and Stone; an extreme conservative faction of Butler, McReynolds, Sutherland, and Van Devanter; and a moderately conservative faction of Hughes (the chief justice) and Roberts. The moderate conservatives lined up with the extreme conservatives in the 1935 and 1936 cases, joined often by one or more of the liberals: the invalidation of the Recovery Act--a widely unpopular law, mainly because of its chaotic administration--was unanimous. Some New Deal measures survived, including the most important one to come before the Court--the government’s repudiation of its contractual obligation to redeem paper dollars in gold on demand. The amount of gold that the government would have owed the obligees, whom inflation would have driven to demand redemption, would have exceeded the nation’s gold reserves by a factor of twenty-five. Roosevelt had resolved that if the Court decided against him, he would defy the Court’s decision.

Roosevelt was distressed by the Court’s elimination of New Deal programs, but less because of the specific programs than because of what the decisions portended for the rest of the New Deal legislative program. The Court’s grounds seemed likely to doom the entire remaining agenda, which included the union-friendly Wagner Act, wages and hours legislation, social security, consumer protection, prohibition of child labor, and much else besides. The Court seemed determined to prevent the growth of federal power that Roosevelt thought essential to economic recovery, social justice, and (given the growing prestige of totalitarian regimes in the 1930s) the survival of democracy. In fact, aside from the four measures that Roosevelt had taken immediately upon assuming office, the New Deal program was more likely to impede than promote recovery. But it was a response to powerful political pressures, and a failure to yield to them could have rent the nation’s political and social fabric.

Although the average age of the Supreme Court justices in January 1937, when Roosevelt’s second term began and an overwhelmingly Democratic Congress was sworn in, was seventy-one, there was no indication of imminent vacancies among the five justices who had voted most consistently to invalidate New Deal statutes. Given the potential for political instability and social unrest if the entire New Deal program was killed, Roosevelt was right to strike at the Court, especially as he had a more sensible conception of the Constitution than that of the conservative justices then, or their counterparts now, or of liberal justices beginning with the Warren Court of the 1960s--a conception of a Constitution flexible enough to permit the government to meet the needs of modern society that the Framers of the Constitution could not have foreseen.

The plan, which did not require a constitutional amendment to enact because the Constitution does not fix the size of the Supreme Court, was to enlarge the Court as follows: if a justice declined to retire within six months after reaching the age of seventy (as he could do at full pay), a new justice could be appointed. The maximum size of the Court was to be fifteen. Six of the justices were over seventy, so if all declined to retire, the Court would reach its maximum size. Even if none of the six septuagenarians (five of the conservatives plus Brandeis) retired, Roosevelt would still be able to appoint six liberal justices, and so the balance would shift from 6-3 in favor of the conservatives to 9-6 in favor of the liberals. If all six eligibles retired and Roosevelt appointed liberals in their place, the balance would be 8-1 in favor of the liberals--Cardozo and Stone plus the six new appointments. Roberts would be the sole conservative.

Court packing (and unpacking-eliminating a vacancy to prevent the president from making an appointment) was not new. But it had not been done since 1867, and Roosevelt badly misplayed his hand. He had not mentioned the Court during the election campaign and thus had not prepared the electorate for an assault on it. He sprang the plan on Congress without warning, which congressional leaders resented; they were allowed no hand in drafting the Court-packing bill. (Obama has been careful--maybe too careful--to avoid this kind of mistake.) And he justified the plan publicly on the patently false ground that the older justices could not keep up with the work of the Court and that as a result the Court was falling behind. In fact, then as now, the justices were not overworked and the elderly ones carried their share of the workload--and everyone knew it. Moreover, a plan grounded in considerations of judicial efficiency could not inspire the public support that Roosevelt needed to overcome the fear, which was not limited to his conservative opponents, that he was trying, albeit by constitutional means, to unbalance the balance of powers created by the Constitution. (It didn’t help that the Nazi press praised the Court-packing plan!) And the ground on which Roosevelt sought to justify the plan set the stage for a devastating riposte by Chief Justice Hughes, who arranged to be invited by Senator Wheeler, an outspoken opponent of the Court-packing plan, to write Wheeler a letter concerning the justices’ ability to keep up with their workload. The letter, which Hughes implied spoke for the entire Court, assured Wheeler, who quickly made it public, that “The Supreme Court is fully abreast of its work.”

What finally killed the plan was an unbroken string of surprising victories for the New Deal in the Supreme Court--twelve in all, with no defeats--while the Court-packing plan was being debated, coupled with the sudden retirement of Justice Van Devanter, one of the four extreme conservatives (who accelerated his retirement in order to help defeat the plan), and topped off by the sudden death of Senate Majority Leader Joseph Robinson. Having been promised by Roosevelt appointment to the first vacancy on the Court, Robinson was at the time of his death making Herculean efforts to persuade his colleagues to vote for the Court-packing plan.

Hughes and Roberts abandoned the other conservatives in all twelve cases. They may have done so in order to defeat the Court-packing plan. It is true that the first of the decisions--which, overruling an earlier decision of the Court, upheld the federal minimum-wage law, and which is generally regarded as the turning point for the Court because it was the first decision in the string--was voted on by the justices (though not issued) before the plan was announced. But the vote came after the 1936 election, and it was believed that Roosevelt would mount some kind of serious challenge to the Court. Hughes and Roberts, especially Hughes, were less conservative than Butler, McReynolds, Sutherland, and Van Devanter--less inclined, therefore, to go down with the ship--and they may also have been influenced by an extraordinary wave of sit-down strikes and labor violence that coincided with the Court-packing controversy and made it seem that the country was coming apart at the seams (though the economy had improved a good deal). The two justices may have come to believe that to kill the New Deal would be playing with fire in the name of dubious constitutional doctrines to which neither of them was as emotionally committed as their extreme conservative colleagues. If that was their thinking, I am enough of a legal realist to withhold criticism of their “political” decision making.

When Hughes finished reading from the bench his opinions upholding the Wagner Act, “a prominent lawyer” in the audience section of the courtroom “rose from his seat, turned to a colleague, and said, ‘Chief Justice Hughes has saved the Supreme Court.’ ‘I think,’ his colleague replied, ‘he has saved the United States as well.’” As The New Yorker sarcastically observed, “the Supreme Court’s about-face was not due to outside clamor. It seems that the new [Supreme Court] building [completed in 1935] has a soundproof room, to which the Justices retire to change their minds.” And as Roosevelt remarked after the Court-packing plan went down to defeat, “We lost the battle, but we won the war.” He indeed had won, though at substantial cost to his prestige, and to his relations with Congress, whose barons he had treated with disdain.

 

I said that Shesol’s book was timely. Like Franklin Roosevelt, Barack Obama is an ambitious and charismatic liberal who took over from a discredited conservative administration and a demoralized Republican Party at a time of severe economic stress. Like Roosevelt, he is passionately hated in some quarters and the subject of vicious, groundless rumors. As with Roosevelt, the election that brought him to power created strong Democratic majorities in both the Senate and the House of Representatives, yet also like Roosevelt he faces a politically conservative Supreme Court that is more than willing to invalidate state and federal laws that it does not like.

Then as now, bankers, who “just a few years earlier had been second to no one in prestige and self-regard,” saw “the world they knew ... turned on its head.” Then as now, a liberal president was attacked from the left as well as from the right, “taking heat from liberals for the big-business orientation of the New Deal, for siding frequently with industry against the claims of labor and consumers.”

Also like Roosevelt, Obama has a three-track legislative program. The first track is recovery from depression and includes the auto and bank bailouts, and the $787 billion stimulus package, and the stress tests of the banks, and mortgage relief, and a moderate inflation--all recovery measures that resemble Roosevelt’s. The second track (illustrated in the Roosevelt administration by federal deposit insurance, the separation of commercial from investment banking, and the creation of the Securities and Exchange Commission) is financial regulatory reform designed to prevent a recurrence of the conditions that caused the depression. The third is long-term socio-economic reform.

In Obama’s administration as in Roosevelt’s, the second and third parts of the president’s program are at war with the first. Imposing new regulatory restrictions on business creates uncertainty in the business community, and uncertainty tends to freeze economic activity. The restrictions also reduce output by increasing costs. The new credit card law, for example, and the pressure that the administration is exerting on banks to modify rather than foreclose mortgages, are adding to the costs of banks and by doing so reducing their lending. And just as New Deal measures designed to increase wages and prices by reducing competition in labor and product markets retarded recovery, so the present administration’s programs of health-insurance reform and climate-change legislation are likely, if adopted, to increase the costs of businesses and, by increasing our immense federal budget deficits, push up interest rates and thereby curtail economic activity.

Despite his brilliant opening moves in the battle against the Depression, Roosevelt had little understanding of economics (but, in that, he had the company of most economists and businessmen). He probably did not sense the tension between New Deal measures that would promote recovery and the larger New Deal program of social reform that would slow down the recovery. His lack of understanding is shown by a series of disastrous moves in 1937, which included both higher taxes and reduced government spending, measures that in combination with the Federal Reserve’s pushing up interest rates to curb rising inflation brought on--within months after the Court-packing controversy ended--a second depression before the nation had fully recovered from the first one. That second depression weighs heavily on policymakers today. Our deficits are creating a risk of serious future inflation, yet measures to reduce the deficits, whether through higher taxes, cuts in government spending, or higher interest rates (which would reduce the amount of money in circulation and thus the potential for a serious inflation) would impede recovery from our current economic doldrums.

John Maynard Keynes warned Roosevelt about the dangers of trying to combine recovery with reform--he urged that reform be postponed until the economy recovered. Roosevelt rejected Keynes’s advice. I don’t know whether Obama’s economic advisers have given him similar advice; but if they have, he, like Roosevelt, has rejected it, whether out of political calculation or ideological commitment.

 

The defeat of the Court-packing plan holds three specific lessons for today. One is the role of passion in the political process. Votes in political elections are not weighted by intensity; a vote cast with lesser-of-two-evils tepidness has the same weight as one cast with passionate conviction. Conservatives took a tremendous shellacking in the 1936 election, yet within a few months they were able to mount a powerful and, in the end, successful campaign against Roosevelt’s first post-election initiative, because their emotional intensity far exceeded that of the plan’s supporters. This disparity in commitment weighed with politicians thinking about the next election. For passion would affect turnout and campaign contributions. We are seeing this today: the opponents of Obama’s legislative program are far more excited than its supporters.

Second, and again observed today, are the limits of congressional party loyalty to the President, even among members of Congress who rode into office on his coattails. Members of Congress are more concerned with their prerogatives and their prospects for re-election than with “their” president’s achieving his legislative goals. A president may actually have an easier time when the opposing party controls Congress. That is illustrated by the improvement in Clinton’s political fortunes and policy accomplishments after the Republicans won majorities in both houses of Congress in the 1994 election, until the Lewinsky scandal tempted the Republicans to try to bring him down. When the executive and legislative branches are in different hands, both have an interest in compromise and the president’s party accepts that he must govern from the middle, which is where a president can expect maximum popular support. The current Democratic Congress designed a stimulus program poorly, as a result of which it is widely regarded (unfairly, I think) as a giant pork barrel, and it has made a mess of the president’s health insurance initiative, and it is fighting with the president over financial regulatory reform.

And third, there is the mystique of the Supreme Court, a source of formidable political power because it makes the Court seem to be “above” politics. (Judges like to refer to the legislative and executive branches of government as “the political branches,” as if the judiciary were not a political branch as well.) Even though political considerations figure significantly and often decisively in federal judicial appointments, especially at the Supreme Court level, and even though the vagueness, complexity, occasional antiquity, and frequent internal inconsistency of American law combine to vest our judges with enormous discretion--above all in constitutional cases that touch on political issues--a sense persists that judges are different from politicians and should be immune from political retaliation for unpopular decisions. Judges are different from other senior officials. They are on average more professional, less partisan, much less subject to interest-group pressures, abler to take the long view of issues, and more decorous and restrained than elected politicians. The Constitution is venerated by Americans--one of the founders of the American Liberty League, the New Deal’s fiercest antagonist, said that the League’s “first appeal should be to the effect that the Constitution is perfect”--and the Supreme Court likes to think of itself as the custodian of the Constitution, its faithful oracle. As Shesol points out, “the more aggressive [the Supreme Court justices in the 1930s] grew in overruling legislatures, the more they assumed a posture of humility and passivity.” The Wall Street Journal’s comment on the decision invalidating the National Industrial Recovery Act was that “the Constitution has survived the depression.” Constitutional idolatry is a platform of today’s right wing as well; it is the sophisticated version of biblical inerrancy.

The conservative justices of the 1930s were on notably weak ground in invalidating New Deal laws for supposed inconsistency with the constitutional text. The text did not speak to such issues as whether agriculture is a part of interstate commerce and thus can be regulated by the federal government, or whether legislative power can be delegated by the legislature to federal agencies or, as in the case of the National Industrial Recovery Act, to trade associations whose exercise of delegated power is subject to review by a federal agency.

Like Roosevelt, Obama is trying to shift the line between government and business leftward. He already has done so to a degree, in the auto bailouts, the banker pay caps, the credit card law, the stimulus law, and the mortgage-relief law. He wants to go further. Will he at some point collide with the Supreme Court? It is not impossible, though I think it unlikely. The current Court, the most conservative since 1937, with four very conservative justices, four liberal ones, and a moderate conservative (Kennedy) occupying the Hughes-Roberts swing position, has backtracked on the broad New Deal understanding of federal power to regulate interstate commerce and has invalidated federal statutes with something approaching abandon--forty between 1991 and 2009, compared to only twenty-nine between 1918 and 1936.

I would be giving a misleading impression of Shesol’s book if I did not remark his striking portrait of Roosevelt. Few question the greatness of Roosevelt as a president, but there has been a tendency to question his intelligence, or at least his intellectual energy. He had not been a good student, or a good lawyer. He was an impatient reader, who preferred oral briefings. His legislative program lacked coherence. He was shrewd, politically astute, charismatic, courageous, buoyant, and humane. But Shesol shows that he was also a keenly engaged, intellectually resourceful student of the Constitution and the Supreme Court. He had speechwriters, but he shaped and altered their drafts. His State of the Union speech of January 6, 1937, delivered just a month before he sent his Court-packing plan to Congress, articulated a more sophisticated constitutional philosophy than that of his opponents when he said that the Constitution’s framers “were fully aware that civilization would raise problems for the proposed new Federal Government, which they themselves could not even surmise; and ... it was their definite intent and expectation that a liberal interpretation in the years to come would give to the Congress the same relative powers over new national problems as they themselves gave to the Congress over the national problems so their day.... Means must be found to adapt our legal and our judicial interpretation to the actual present needs of the largest progressive democracy in the modern world.”

Would it really have been so terrible had the Court-packing bill passed? I am not so sure. It would have increased turnover on the Court, reduced the average age of justices, made an appointment to the Court less prestigious, and made the justices more cautious about bucking strong political forces, because they would have learned that Congress was willing as well as able to rein them in. We would probably have been spared the excesses of the Warren Court, which turned Roosevelt’s idea of the “living Constitution” on its head: where Roosevelt wanted the Court to stand aside so that the government could deal with the distinctive problems of modernity, the Warren Court responded to the surging crime rates of the 1950s and 1960s by increasing the rights of criminals.

Richard A. Posner is a judge on the U.S. Court of Appeals for the Seventh Circuit and a senior lecturer at the University of Chicago Law School.

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The Original of Laura

By Vladimir Nabokov

Edited by Dmitri Nabokov

(Knopf, 304 pp., $35)

 

So this is what we’ve all been waiting for? The last, lost work of the great master, all but complete, so rumor had it, at the time of his death, sequestered for decades in a Swiss vault, “brilliant, original, and potentially totally radical,” according to his son and heir, “the most concentrated distillation of [my father’s] creativity”--and all that it amounts to, we now learn, is a handful of crumbs, a bit of lint, a few coins. Well, print it in a scholarly journal, sell it to The New Yorker, put it in a catchall collection of unpublished work. I was not for burning, as Nabokov decreed, but after dithering for two decades, after Ron Rosenbaum’s Web-based worldwide plebiscite, after all the prefatory gestures of a small-time conjurer building up to the culminating bunny, is this really what Dmitri Nabokov proposes to foist on us? Scarcely thirty pages worth of text, packaged into a brick of a book (curb weight 2.4 pounds) and modestly priced at, ahem, thirty-five bucks.

In early 2002, the filmmaker Grace Guggenheim--the daughter of the late Charles Guggenheim, one of America’s greatest documentarians, and the sister of the filmmaker Davis Guggenheim, who made An Inconvenient Truth-decided to do something that might strike most of us as common sense. Her father had directed or produced more than a hundred documentaries. Some of these were quite famous (Nine from Little Rock). Some were well-known even if not known to be by him (Monument to a Dream, the film that plays at the St. Louis arch). Some were forgotten but incredibly important for understanding American history in the twentieth century (A Time for Justice). And some were just remarkably beautiful (D-Day Remembered). So, as curator of his work, Grace Guggenheim decided to remaster the collection and make it all available on DVD, which was then the emerging platform for film.

Her project faced two challenges, one obvious, one not. The obvious challenge was technical: gathering fifty years of film and restoring it digitally. The non-obvious challenge was legal: clearing the rights to move this creative work onto this new platform for distribution. Most people might be puzzled about just why there would be any legal issue with a child restoring her father’s life’s work. After all, when we decide to repaint our grandfather’s old desk, or sell it to a neighbor, or use it as a workbench or a kitchen table, no one thinks to call a lawyer first. But the property that Grace Guggenheim curates is of a special kind. It is protected by copyright law.

Documentaries in particular are property of a special kind. The copyright and contract claims that burden these compilations of creativity are impossibly complex. The reason is not hard to see. A part of it is the ordinary complexity of copyright in any film. A film is made up of many different creative elements--music, plot, characters, images, and so on. Once the film is made, any effort at remaking it--moving it to DVD, for example--could require clearing permissions for each of these original elements. But documentaries add another layer of complexity to this already healthy thicket, as they typically also include quotations, in the sense of film clips. So just as a book about Franklin Delano Roosevelt by Jonathan Alter might have quotes from famous people talking about its subject, a film about civil rights produced in the 1960s would include quotations--clips from news stations--from famous people of the time talking about the issue of the day. Unlike a book, however, these quotations are in film--typically, news footage from CBS or NBC.

Whenever a documentarian wanted to include these clips in his film, he would ask CBS or NBC for permission. Most of the time, at least for a healthy fee, CBS and NBC and everyone else was happy to give permission so as to be included. Sometimes they wanted to see first just how the clip would be used. Sometimes they would veto a particular use in a particular context. But in the main there was a healthy market for securing permission to quote. The lawyers flocked to this market for permission. (That’s their nature.) They drafted agreements to define the rights that the quoter would get.

I suspect that most filmmakers never thought for a second about how odd this “permission to quote” was. After all, does an author need to get permission from The New York Times when she quotes an article in a book about the Depression? Indeed, does anyone need permission from anyone when quoting public statements, at least in a work talking about those statements? Ordinarily, one would think that this sort of “use” is “fair,” under the rules of copyright at least. But most documentarians--indeed, most filmmakers--did not care to work through the complexity and the uncertainty of a doctrine such as “fair use.” Instead they agreed to licenses that govern--exclusively, as they typically asserted--the rights to use the quotes that were in the film. So, for example, the license would insist that the only right to use the film came from the license itself (not fair use). And it would then specify the scope and term of the right--five years, North American distribution, for educational use.

What that agreement means is that if the filmmaker wanted to continue to distribute the film after five years, he would have to go back to the original rights holder and ask for permission again. That task may not sound so difficult if you think about one clip in one documentary. But what about twenty, thirty, or more? And even assuming that you can find the original holders of the rights, they now have you over a barrel--as the owners of the famous series Eyes on the Prize discovered. Jon Else, the producer and cinematographer for the series, described the problem in 2004 (extraordinary efforts have now resolved it):

[The series] is no longer available for purchase. It is virtually the only audiovisual purveyor of the history of the civil rights movement in America. What happened was the series was done cheaply and had a terrible fundraising problem. There was barely enough to purchase a minimum five-year rights on the archive-heavy footage. Each episode in the series is fifty percent archival. And most of the archive shots are derived from commercial sources. The five-year licenses expired and the company that made the film also expired. And now we have a situation where we have this series for which there are no rights licenses. Eyes on the Prize cannot be broadcast on any TV venue anywhere, nor can it be sold. Whatever threadbare copies are available in universities around the country are the only ones that will ever exist. It will cost five hundred thousand dollars to re-up all the rights for this film.

As American University’s Center for Social Media concluded, “rights clearance costs are high, and have escalated dramatically in the last two decades,” and “limit the public’s access” to documentary film. The consequence of this ecology of creativity is that the vast majority of documentaries from the twentieth century cannot legally be restored or redistributed. They sit on film library shelves, many of them dissolving, since they were produced on nitrate-based film, and most of them forgotten, since no content company or anyone else can do anything with them. In this sense, most of these works have been made orphans by a set of agreements concluded at their birth, which--like lead in gasoline--were introduced without any public recognition of their inevitable toxicity.

Except of course for those with a devoted heir, such as Grace Guggenheim. She was not willing to accept defeat. Instead she set herself the extraordinary task of clearing all of the rights necessary to permit her father’s films to be shown. Eight years later, she is largely done. About ten major works remain. Just last year, her father’s most famous documentary--Robert Kennedy Remembered, made in 1968 in the two months between Kennedy’s assassination and the Democratic National Convention, and broadcast only once--was cleared for DVD release through the Robert F. Kennedy Memorial Center.

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I entered the rare book room at the Harvard law library for the first time last fall. At the end of the main reading room, the Elihu Root Room, there are bookcases filled with old books, some of them older even than the Republic. I had come to see just what it would take to have a look at the oldest published works that were available at this, one of America’s premier libraries. Not much, it turned out. The librarians directed me to a table. I was free to page through the ancient text, carefully.

Books--physical books, and the copyrighted work that gets carried in them--are an extraordinarily robust cultural artifact. We have access to practically every book ever published anywhere. You do not need to be a Harvard professor to enter the rare book room at the law library. You do not need to touch rare books to read the work those books hold. Older works--before 1923, in the United States--are in the public domain, which means that anyone, including any publisher, can copy and reprint that work without any permission from anyone else. There is no Shakespeare estate that reviews requests for new editions of Hamlet. The same is true for every nineteenth-century author in America. These works are freely and widely available, because no law restricts access to these works.

And just about the same is effectively true for any book still under copyright. No doubt, publishers are not free to take the latest Grisham novel and print a knockoff. But through the extraordinary efforts of libraries (and they are Herculean, no doubt) and used bookstores, you can get access to basically anything, and for practically nothing. Your library can get it, and share it with you almost for free. Your used bookstore can find it and sell it to you for less than the cost of a night at the movies.

So notice, then, how different our access to books is from our access to documentary films. After a limited time, almost all published books (but not all: put aside picture books, poetry, and, for reasons that will become obvious, an increasing range of relatively modern work) can be republished and redistributed. No heir of a long-dead author will stop us from accessing her published work (or at least the heart of it--some would say that the cover, the foreword, the index might all have to go). But the vast majority of documentary films from the twentieth century will be forever buried in a lawyer’s thicket, inaccessible (legally) because of a set of permissions built into these films at their creation.

Things could have been different. Documentary films could have been created the way books were, with writers using clips the way historians use quotations (that is, with no permission at all). And likewise, books could have been created differently: with each quotation licensed by the original author, with the promise to use the quote only according to the terms of a license. All books could thus be today as documentary films are today--inaccessible. Or all documentary films today could be as almost all books are today--accessible.

But it is the accident of our cultural history, created by lawyers not thinking about, as Duke law professor Jamie Boyle puts it, the “cultural environmental consequences” of their contracts, that we can always legally read, even if we cannot legally watch. In this contrast between books and documentaries, there is a warning about our future. What are the rules that will govern culture for the next hundred years? Are we building an ecology of access that demands a lawyer at every turn of the page? Or have we learned something from the mess of the documentary-film past, and will we create instead an ecology of access that assures copyright owners the incentive they need, while also guaranteeing culture a future?

 

II.

There has been a rage of attention to the recently revised proposal for a settlement by Google of a lawsuit brought against it by the Authors Guild of America and the Association of American Publishers (AAP). In 2004, Google launched the sort of project that only Internet idealists such as the entrepreneur and archivist Brewster Kahle had imagined: to scan eighteen million books, and make those books accessible on the Internet. How accessible depended upon the type of book. If the book was in the public domain, then Google would give you full access, and even permit you to download a digital copy of the book for free. If the book was presumptively under copyright, then at a minimum Google would grant “snippet access” to the work, meaning you could see a few lines around the words you searched, and then would be given information about where you could buy or borrow the book. But if the work was still in print, then publishers could authorize Google to make available as much of the book (beyond the snippets) as the publishers wanted.

The Authors Guild and AAP claimed that this plan violated copyright law. Their argument was simple and obvious--at least in the autistic sort of way that copyright law thinks about digital technology: when Google scanned the eighteen million books to build its index, it made a “copy” of them. For works still under copyright, the plaintiffs argued, this meant that Google needed permission from the copyright owner before that scan could occur. Never mind that Google scanned the works simply to index them; and never mind that it would never--without permission--distribute whole or even usable copies of the copyrighted works (except to the original libraries as replacements for lost physical copies). According to the plaintiffs, permission was vital, legally. Without it, Google was a pirate.

For 16 percent of the eighteen million books, the plaintiffs’ charges were no problem: these were works in the public domain. The law assured Google the free right to copy them. Likewise for the 9 percent that were still in print: for these too, it was relatively easy to identify who to ask before scanning was to happen. Publishers were delighted to assure this simple and cheap marketing for published works (practically all had signed up for the service before Google announced Google Book Search). But for 75 percent of the eighteen million books in our libraries, the rule of the plaintiffs would have been a digital death sentence. For these works--presumptively under copyright but no longer in print--to require permission first is to guarantee invisibility. These works are, practically speaking, orphans. It is effectively impossible--at least at the wholesale level--to secure permission for any use that triggers copyright law.

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Google maintained--rightly, in my view--that its “use” of these copyrighted works (copying them so as to index them, and then simply enabling a search on that index) was “fair use.” That meant it needed no one’s permission before it scanned them, so long as its use was sufficiently transformative. But had Google lost the argument--and courts have been known to reach the wrong conclusion in copyright cases--then the company faced crippling liability.

So when it was given a chance to settle, it is no surprise Google took it (though Google insiders insist that fear of liability was not a motive). To its great credit, Google did not back off its claim that its use would have been a “fair use.” And even better, it secured from the plaintiffs and for the public a better deal than what “fair use” would have given it and the public. Under the settlement, Google would pay for the right to make up to 20 percent of copyrighted books whose author could not be found available to the public for free; and beyond 20 percent, the public could pay to access the full book, with the funds given over to a new non-profit charged with getting these royalties to the authors who want them. We get one-fifth of all the orphans (or one-fifth of each orphan) for free. And Google got the chance to build an eighteen-million-book digital library.

There is much to praise in this settlement. Lawsuits are expensive and uncertain. They take years to resolve. The deal Google struck guaranteed the public more free access to free content than “fair use” would have done. Twenty percent is better than snippets, and a system that channels money to authors is going to be liked much more than a system that does not. (Not to mention that the deal is elegant and clever in ways that a contracts professor can only envy.)

Yet a wide range of companies, and a band of good souls, have now joined together to attack the Google settlement. Some charge antitrust violations. Some fear that Google will collect information about who reads what--violating reader privacy. And some just love the chance to battle this decade’s digital giant (including last decade’s digital giant, Microsoft). The main thrust in almost all of these attacks, however, misses the real reason to be concerned about the future that this settlement will build. For the problem here is not just antitrust; it is not just privacy; it is not even the power that this (enormously burdensome) free library will give this already dominant Internet company. Indeed, the problem with the Google settlement is not the settlement. It is the environment for culture that the settlement will cement. For it practically guarantees that we will repeat the cultural-environmental errors of our past, by now turning books into documentary film.

 

To grasp the problem, you must actually open up the 165-page-long settlement and read a bit of the language. (The first twenty or so pages are definitions, so skim those.) Very quickly, one sees that the Twitter version of this settlement sounds better than the actual document reads. For rather than a relatively simple rule about how much of a book you get for free, and when you have to pay, the actual terms are enormously complex. Whether a book is “free” depends upon the kind of book it is. Journals have a different rule from regular books. Books with pictures have a different rule again.

The deal constructs a world in which control can be exercised at the level of a page, and maybe even a quote. It is a world in which every bit, every published word, could be licensed. It is the opposite of the old slogan about nuclear power: every bit gets metered, because metering is so cheap. We begin to sell access to knowledge the way we sell access to a movie theater, or a candy store, or a baseball stadium. We create not digital libraries, but digital bookstores: a Barnes & Noble without the Starbucks.

I had been thinking about this issue as a theoretical matter for some time. But then, a few months ago, it hit me quite directly. My wife had just given birth to our third child. On the morning of the child’s third day, doctors were worried about jaundice. By the evening, the child had fallen into a state of severe lethargy. We called the doctor. He wanted a report in two hours. If she did not improve, he wanted her taken to the emergency room. By midnight she had not improved, and so I bundled her into the car seat and raced to nearby Children’s Hospital.

As I sat waiting for the doctor, I began reading an article I had found through Google about jaundice and its dangers. Fortunately, the piece was published by the American Family Physician, which makes its articles available freely on the Internet. And so with an increasing feeling of panic, I read about the condition--hyperbilirubinemia--that the doctor feared our child had developed.

I reached a critical part of the article. It referred to a table. I turned the page to see the table. The table was missing. In its place was a notice: “The rightsholder did not grant rights to reproduce this item in electronic media.” No one had licensed the table for free distribution. Distribution was thus blocked. “Have your lawyer call my lawyer,” the article seemingly urged. “We’ll work something out.”

I sat in that waiting room chair staring in disbelief. It was a relief of sorts, to fear for the future of our culture rather than the future of my daughter. But I was astonished. I could not believe that we were this far down the path to insanity already. And that experience spurs me to ask some urgent questions. (The kid is fine, by the way.) Before we continue any further down this culturally asphyxiating road, can we think about it a little more? Before we release a gaggle of lawyers to police every quotation appearing in any book, can we stop for a moment to consider whether this way of organizing access to culture makes sense? Does this complexity get us something we would not get under the older system? Does this innovation in obsessive control produce any new understanding? Is it really progress?

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Whatever your view of it, notice first just how different this future promises to be. In real libraries, in real space, access is not metered at the level of the page (or the image on the page). Access is metered at the level of books (or magazines, or CDs, or DVDs). You get to browse through the whole of the library, for free. You get to check out the books you want to read, for free. The real-space library is a den protected from the metering of the market. It is of course created within a market; but like kids in a playroom, we let the life inside the library ignore the market outside.

This freedom gave us something real. It gave us the freedom to research, regardless of our wealth; the freedom to read, widely and technically, beyond our means. It was a way to assure that all of our culture was available and reachable--not just that part that happens to be profitable to stock. It is a guarantee that we have the opportunity to learn about our past, even if we lack the will to do so. The architecture of access that we have in real space created an important and valuable balance between the part of culture that is effectively and meaningfully regulated by copyright and the part of culture that is not. The world of our real-space past was a world in which copyright intruded only rarely, and when it did, its relationship to the objectives of copyright was relatively clear.

We forget all this today. With all the attention that copyright law gets, we forget that there was a time when it just didn’t matter that much to the way ordinary people accessed and used culture. I don’t mean that it did not matter to authors and publishers. Of course it did. I mean that it did not matter to most people as they went about their life using, enjoying, building upon, and critiquing culture. As Michigan law professor Jessica Litman put it:

At the turn of the century, U.S. copyright law was technical, inconsistent, and difficult to understand, but it didn’t apply to very many people or very many things. If one were an author or publisher of books, maps, charts, paintings, sculpture, photographs or sheet music, a playwright or producer of plays, or a printer, the copyright law bore on one’s business. Booksellers, piano-roll and phonograph record publishers, motion picture producers, musicians, scholars, members of Congress, and ordinary consumers could go about their business without ever encountering a copyright problem.

Ninety years later, U.S. copyright law is even more technical, inconsistent and difficult to understand--but more importantly, it touches everyone and everything. In the intervening years, copyright has reached out to embrace much of the paraphernalia of modern society. The current copyright statute weighs in at 142 pages. Technology, heedless of law, has developed modes that insert multiple acts of reproduction and transmission--potentially actionable events under the copyright statute--into commonplace daily transactions. Most of us can no longer spend even an hour without colliding with the copyright law.

 

Copyright did not even matter much, as a practical matter, to most authors. If you are lucky as an author, your work has two vibrant lives. In its first life, the exclusive right of copyright is relevant. In its second life, it is not. Copyright is relevant in the first because, while a work is in print, the publisher needs (or so publishers believe) the exclusive right to publish it. But once the work passes out of print, it has become, from the author’s perspective at least, essentially free. To be sure, used bookstores make money (not much) if they sell a copy of the book, and libraries charge fees to move books from one part of the country to another. But when a used book gets sold, the author gets nothing, and when a patron in a library (in America) checks out a book, the author also gets nothing. The commercial activity of used bookstores and the non-commercial activity of libraries all happens without the permission of an author (or her lawyer), and without any emolument to an author, because none of the activities involved in selling a used book, or in lending a book in a library, triggers the law of copyright. No copy is made. No new work is derived. No performance is done in public. None of the exclusive rights of copyright reach these commercial and non-commercial uses. So the holders of that exclusive right--sometimes authors--get nothing.

Authors may not be terribly happy about this. I have heard writers in other countries brag about the $2.50 they receive each year from the tax that is imposed on libraries whenever they let people read books for free. But whether authors are happy or not, it is critical to recognize that the free access that this world created was an essential part of how we passed our culture along. When you send your children to a library to write a research paper, you do not want them to have access to just 20 percent of each book they need to read. You want them to be able to read all of the book. And you do not want them to read just the books they think they would be willing to pay to access. You want them to browse: to explore, to wonder, to ask questions--the way, for example, people explore and wonder and ask questions using Google or Wikipedia. We had a culture where an enormous chunk of cultural life was proliferated and shared without most of us ever calling a copyright lawyer. Whether authors (or more likely, publishers) liked it or not, that was our fortunate past.

We are about to change that past, radically. And the premise for that change is an accidental feature of the architecture of copyright law: that it regulates copies. In the physical world, this architecture means that the law regulates a small set of the possible uses of a copyrighted work. In the digital world, this architecture means that the law regulates everything. For every single use of creative work in digital space makes a copy. Thus--the lawyer insists--every single use must in some sense be licensed. Even the scanning of a book for the purpose of generating an index--the action at the core of the Google book case--triggers the law of copyright, because that scanning, again, produces a copy.

And what this means, or so I fear, is that we are about to transform books into documentary films. The legal structure that we now contemplate for the accessing of books is even more complex than the legal structure that we have in place for the accessing of films. Or more simply still: we are about to make every access to our culture a legally regulated event, rich in its demand for lawyers and licenses, certain to burden even relatively popular work. Or again: we are about to make a catastrophic cultural mistake.

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III.

How might we do better? What would a solution to this mess look like, a solution that would not bury our culture in a morass of legal and technical code? The core problem here is not one of Google’s creation. It is not a problem that we should expect Google, or any other private company, to solve. Indeed, Google has gone a great distance in the settlement to mitigate the problems that the law (given digital technology) imports: the settlement has a special deal for libraries and universities, and it has the potential to offer a special deal for researchers. Google and the plaintiffs have tried to grant special favors of access, no doubt to avoid precisely the kind of concern I am raising here. And no doubt the settlement as a whole is an experiment that could teach us a great deal about how culture is demanded, and what access we need to secure.

But we cannot rely upon special favors granted by private companies (and quasi-monopoly collecting societies) to define our access to culture, even if the favors are generous, at least at the start. Instead our focus should be on the underlying quandary that gives rise to the need for this elaborate scheme to regulate access to culture. However clever the settlement, however elegant the technology, we should keep Peter Drucker’s words clear in our head: “There is nothing so useless as doing efficiently that which should not be done at all.”

The problem that we are confronting is the result of a law that has been rendered hopelessly out-of-date by new technologies. The solution is a re-crafting of that law to achieve its estimable objective--incentives to authors--without becoming a wholly destructive burden to culture. The details of such a re-crafting are impossible to sketch just yet. We have all wasted too much time waging the copyright wars to know enough what a sensible peace would look like. Still, the contours of some first steps are clear enough. There are two obvious changes that the law should make, plus a third, which, though requiring a difficult choice of values, the law will have to confront.

 

The first is to make this property system more efficient. Governments establish property systems. The minimal obligation on a government is that it make its system efficient. Copyright is a property system established by the federal government. Yet that government has failed in its minimal obligation toward this property system. Copyright is among the least efficient property systems known to man. It is practically impossible--that is, without projectdefeating costs--to identify who owns what for the vast majority of work regulated by our copyright system.

The Google settlement tries to solve this problem in part. The regime that it would establish calls for the creation of a voluntary copyright registry. But as there is no obligation on anyone to participate in this registry, there is no way to be certain about who owns what. A better solution would be to shift to the copyright owners some of the burden of keeping the copyright system up to date, by establishing an absolute obligation to register their work, at least after a limited time. Thus, for example, five years after a work is published, a domestic copyright owner should be required to maintain her copyright by registering the work. Failure to register would mean that the work would pass into the public domain. Successful registration would mean a simple way to identify who owned what. (For complicated reasons having to do with international obligations, this requirement could only apply to domestic copyright owners. But the same rule could be adopted by every nation within this international regime.)

The government should not run these registries. They are the sort of thing that the Googles and Microsofts of the world should do. Rather, the government should establish the minimal protocols for these registries, and permit registrars to compete to service that registry. As with the domain name system for the Internet (and the companies that sell TNR.com and the like), these competing registrars would keep the cost low, and have a constant incentive to innovate to make the value they add better than their competitors.

This maintenance requirement should apply to books alone--for now. There are different, and enormously complicated, problems with other forms of creative work, photographs in particular, especially after a generation of law telling creators that they need do nothing to secure complete protection for their work. But the objective should be to include these other works as soon as it is feasible, so that this first and most basic obligation of a property system could be met: that it tell the world who owns what.

 

The second obvious change is to build legal-thicket weed whackers. The vast majority of the problems that we now face in preserving and securing access to our cultural past are caused by the failure of the past to anticipate the radical potential of technology in the future. The past can be forgiven for this. Even the designers of the Internet did not foresee its size or its significance. But our response to this complexity should not be simply to suffer through. The thicket of legal obligations that buries film, music, and every other form of creative work (save books) should be re-made using a rule that gives current owners the ability to secure value for those rights, but through a clearinghouse that would shift us away from a world of endless negotiation to a world where simple property rules function simply.

The details of this system are beyond the scope of an essay, but the basic idea is simple enough to sketch. For any compiled work--like a film, or a recording--more than fourteen years old (a nod to our Framers’ copyright term), the law should secure an absolute right to preserve the work without burden to the current owner. That means that Grace Guggenheim and others like her--as well as film archives and film studios--should be free to preserve film without worrying about rights clearance of any sort. Whether copying happens or not, the act of preservation should be free of legal restriction.

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Beyond preservation, however, the rule will have to be more complex. The law should enable a simple way for the compiled work to clear perpetual rights to that work alone, so that it can be made available, even commercially, forever. And this requires progress in how we think about copyright. It requires giving up the idea that the elements in a compiled work--the music in a film, for example--have a continuing power to block access to, or distribution of, that work. Once a work is made, rather, we need to recognize that it has its own claim within our culture. And so long as the necessary permissions to make the work were secured originally, then at some point in the future (again, say fourteen years after its creation), the parts lose the power to control the whole.

No doubt, a composer has the right to decide whether her song appears in J.J. Abrams’s next film. But we need to move away from a system in which that composer also has the right to block the distribution of Abrams’s film thirty years after it was made. Such a system of rights is wildly too complex, and it serves no public good, and the law should not support it. Instead, after some period, the copyright owner of the compiled work needs the simple ability to secure the right to distribute the original work in whatever platform for distribution then makes sense.

 

Of course, the Constitution limits the ability of Congress to “sport away vested rights.” But that limit is itself limited. Congress cannot simply declare that rights in creative work do not exist anymore. Yet there is a long tradition in property law recognizing the right of governments to establish simple mechanisms for clearing rights. Thus a rule that permitted copyright owners of film--for example, to opt into a regime that reserved 20 percent of royalties for a collecting rights society to distribute to affected rights holders-would be one system that would cut through the present thicket while permitting compensation to the rights holders, who in theory at least are entitled to revenues.

But why should copyright owners not be permitted to agree to whatever complicated system of access they want? It’s their property, isn’t it? Here we come back to Property 101. The law has always set limits on the freedom of property owners to allocate their property as they want. Families in Britain wanted to control how estates passed down the family line. At a certain point, their wants became way too complicated. The response was rules--such as the Rule Against Perpetuities--designed to enhance the efficiency of the market by limiting the freedom of property owners to place conditions on their property, thus making it possible for property to move more simply. That is precisely the impulse I wish to recommend here: that we limit the freedom of lawyers to craft infinitely complicated agreements governing culture, so that access to our culture can be preserved.

 

The third change is the most difficult, since it involves not just old work, but also new work--and not just the battles of lawyers, but decisions about how culture gets created. Yet this question, too, must soon be resolved.

The law of copyright is shot through with balances struck to protect markets and to limit markets. Two hundred years of legislation shows a constant effort to identify and to secure the places where commercial values should reign and the places where they should be constrained. Sometimes that limit was an unavoidable by-product of the technology of copyrighted works. No one planned that reading a book would be free of copyright; it just couldn’t, in the physical world at least, be any different. Sometimes that limit was the express intention of Congress--as in the explicitly favorable terms granted to public broadcasting, for example.

We need a renewed effort to strike this balance through interests that recognize the good in both sides. It would be a mistake to destroy new markets by eliminating copyright protection where it would do good. It would also be a mistake to assume that all access to culture should be governed by markets, regardless of the effect it has on access to our past. In the most abstract sense, we need to decide what kinds of access should be free. And we need to craft the law to assure that freedom.

Some of this might be thought of as simple translation. Public radio was granted significant benefits under the Copyright Act of 1976, securing the right to use music, for example, under extremely favorable terms. But that right does not on its face extend to the new forms of Internet distribution that increasingly define how we access culture. The simplest response would be to update these earlier freedoms to take account of new media. At a minimum, we could translate the regime that existed into this new technological environment.

But translation presumes that the original meaning was intended. Sometimes it was not. Maybe the free access of libraries was planned, a decision of policy makers, or maybe it was just the unavoidable by-product of the limits of the law in an inefficient environment for enforcing the law. Though the original meaning is ambiguous, the ambiguity was latent. But now that it has been made manifest, we need to decide how far free access should reach.

I have no clear view. I only know that the two extremes that are before us would, each of them, if operating alone, be awful for our culture. The one extreme, pushed by copyright abolitionists, that forces free access on every form of culture, would shrink the range and the diversity of culture. I am against abolitionism. And I see no reason to support the other extreme either--pushed by the content industry--that seeks to license every single use of culture, in whatever context. That extreme would radically shrink access to our past.

Instead we need an approach that recognizes the errors in both extremes, and that crafts the balance that any culture needs: incentives to support a diverse range of creativity, with an assurance that the creativity inspired remains for generations to access and understand. This may be too much to ask. The idea of balanced public policy in this area will strike many as oxymoronic. It is thus no wonder, perhaps, that the likes of Google sought progress not through better legislation, but through a clever kludge, enabled by genius technologists. But this is too important a matter to be left to private enterprises and private deals. Private deals and outdated law are what got us into this mess. Whether or not a sensible public policy is possible, it is urgently needed.

Lawrence Lessig is a professor of law at Harvard Law School. His latest book, Remix (Penguin), was published in paperback last year.

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The Beatles: Rock Band

Guitar Hero

When smug old children of the 1970s such as my friends and I get together, we play a game. We talk about the bands we loved when we were kids; we trade grumbles about the fact that music no longer seems to dominate youth culture, as we nostalgically recall the role that rock had in our past; and we try to guess what happened. I call this a game and not a discussion, because really it is diverting silliness that boils down to a competition to reach an agreed-upon goal--that is, to prove our generation’s superiority to our successors. The winning answers are invariably ones that reinforce an idealized conception of the classic-rock era more than they illuminate the present. They reiterate the dubious truism that rock was so magnificent in the 1960s and 1970s that it demanded attention in a way that no music that followed it could. And they cast as revelations the perfectly obvious point that contemporary pastimes such as video games and digital networking have taken up the social function of music.

Famine: A Short History

By Cormac Ó Gráda

(Princeton University Press, 327 pp., $27.95)

The earliest recorded famines, according to Cormac Ó Gráda in his brief but masterful book, are mentioned on Egyptian stelae from the third millennium B.C.E. In that time--and to an extent, even today, above the Aswan dam in Sudan--farmers along the Nile were dependent on the river flooding to irrigate their fields. But one flood out of five, Ó Gráda tells us, was either too high or too low. The result was often starvation. The stelae commemorate the philanthropy of the aristocracy in providing food to the hungry. Other records of famine in the ancient world can be found in texts as various as Gilgamesh, the Joseph narrative in Genesis, Nehemiah, Cicero, and the Book of Revelation, in which the figure of famine is the third of the four horsemen of the apocalypse. 

Charles Dickens

Michael Slater

Yale University Press, 696 pp., $35

I.

For a long time, everyone has known that Paris was the capital of the nineteenth century, the city where the modern was invented: the society of the spectacular. But everyone was wrong. The capital of the nineteenth century was London. Think about it. Walter Benjamin’s symbol of the Parisian modern was the arcade. The arcade! In London-according to the social campaigner Henry Mayhew, there were 300,000 dustbins, 300,000 cesspools, and three million chimneys. It was there that the truly modern was invented: industrial, overpopulated dirt. Its symbol was the slum. London was managed by a majority of minority trades, all in the business of garbage: bone-pickers, rag-gatherers, pure-finders, dredgermen, toshers. And London’s greatest describer, who converted the ghostly industrial city into a new world of words, was a novelist who could taxonomically and poetically enumerate, say, the varieties of polluted fog: “Even in the surrounding country it was a foggy day, but there the fog was grey, whereas in London it was, at about the boundary line, dark yellow, and a little within it brown, and then browner, and then browner, until at the heart of the City--which call Saint Mary Axe--it was rusty-black.”