My panel addressed “The Digital Future of Scholarly Publishing,” and consisted of Yochai Benkler, David Gelernter, Michael Heller, and myself, moderated by Harvard University Library Director Robert Darnton. (If you’re counting, that’s 3 law profs and a computer scientist among the presenters, a strange ratio for a discipline that has only in the past decade embraced book publishing. In [...]]]> Yale University Press recently celebrated its centennial with a conference, “Why Books Still Matter.” The theme of the event – and the fact that YUP Director John Donatich opened by acknowledging the unasked question, “Do books still matter?” – reflects the troubled state of both university and trade publishing. Champions of the book arrived from all corners, however, with a variety of ideas.

My panel addressed “The Digital Future of Scholarly Publishing,” and consisted of Yochai Benkler, David Gelernter, Michael Heller, and myself, moderated by Harvard University Library Director Robert Darnton. (If you’re counting, that’s 3 law profs and a computer scientist among the presenters, a strange ratio for a discipline that has only in the past decade embraced book publishing. In fact, when I was writing my first book, I experienced substantial resistance from both my tenure committee and senior scholars elsewhere – a reaction that now seems laughable – but that’s a story for another day.) While we ranged from enthusiastic to somewhat resistant to the possibilities of digital rather than paper-and-ink publishing, there was general agreement that traditional books have great value.

Much of the defense of the paper-and-ink book revolved around its technical excellence. While some people love their Kindles, and digital technology will no doubt continue to improve, nothing has yet beaten the book.

For my part, I confess to having called books “the scented candles of the 21st century” –

– but I meant it nicely. A candle was once about as romantic as a lightbulb, but today candles are exchanged as gifts, used to create atmosphere, and treated as small amenities. And yes, they provide light. Books are still terrific information delivery devices, but even as the digital reading experience improves, books will still serve as identity-bearing goods (offering information about their owners), have totemic value (physically connecting readers with authors, a link strengthened in cases like signed copy), and exist as personal luxuries. While reference tomes or extremely specialized scholarly works that will be used by only a few people probably don’t need to have a tangible existence, printing amplifies both the value and the roles of many other works. (Why else would I be in the process of turning my own blog into a real live book, rather than simply a longer digital file?)

But the question that remained uppermost in my mind, after much additional discussion of the book and of the relationship between a university, its press, and the mission of a university press, was exactly what constitutes scholarship or academic publishing and what constitutes trade publishing. Most large university presses do both, the latter ostensibly to subsidize the former, but in today’s information society I’m not sure that the difference is quite so clear – though Yochai disagreed with me on this point.

In my view, universities and scholars no longer have a near-monopoly on the production of information and extended analysis. Journalists, corporate consultants, and independent researchers write tremendously thoughtful and thought-provoking works; among my favorite books published in the past year is Rob Walker’s Buying In, to offer just one example. At the same time, more professional academics are writing books that appeal to not only our colleagues but also to the general public. Sure, there’s a difference between a John Grisham novel and a Ph.D. dissertation, but in my mind there’s a continuum, not two poles.

Where does scholarship end and the popular press begin? Why the shift among legal academics to writing books, with both university presses and trade presses? A new-media outlet run by professors seems a perfect place to discuss these and related questions.

This is one question that I’ve never been able to answer comfortably, whether asked years ago by a college admissions officer or recently by a documentary filmmaker. The problem with picking a public or private hero these days is that everyone comes as a package – and history is all too eager to reveal the rotten bits, from Thomas Jefferson’s ownership of slaves to Coco Chanel’s liaison with a Nazi officer. Sure, it’s possible to choose a fictional character or someone so far obscured by the mists of time and legend that any tragic flaws have disappeared. That seems a bit too easy, though, and it certainly doesn’t speak to previously anointed communal heroes who have lost their luster. [...]]]> “Who are your heroes?”

This is one question that I’ve never been able to answer comfortably, whether asked years ago by a college admissions officer or recently by a documentary filmmaker. The problem with picking a public or private hero these days is that everyone comes as a package – and history is all too eager to reveal the rotten bits, from Thomas Jefferson’s ownership of slaves to Coco Chanel’s liaison with a Nazi officer. Sure, it’s possible to choose a fictional character or someone so far obscured by the mists of time and legend that any tragic flaws have disappeared. That seems a bit too easy, though, and it certainly doesn’t speak to previously anointed communal heroes who have lost their luster.

Take Columbus Day, a federal holiday in such disrepute among the chattering classes that none of the 3 newspapers that appeared outside my door this morning even mentioned it. (One of Saturday’s papers did note in passing that today would be a “partial holiday,” with the bond market closed but the stock market open.) Can we celebrate a guy who took a bold navigational risk — but then sanctioned the enslavement and/or massacre of those he encountered? Like Chief Justice John Marshall, we’re embarrassed to acknowledge the events following the “discovery” of America but unwilling or unable to disown the intervening centuries.

Were it not for a cultural gloss on the significance of Columbus Day, not to mention the desire for a federal holiday between Labor Day and Thanksgiving, Cristoforo Colombo might have faded to the same obscurity as many of his fellow explorers. Italian-American immigrants starting in the mid-nineteenth-century, however, saw an opportunity to legitimize their presence by adopting as one of their own a predecessor on the same journey, a man who was already recognized by mainstream Americans. Never mind that “Italy” didn’t exist in 1492, or that Columbus sailed under the Spanish flag. Columbus Day became less about the historical figure and more about ethnic pride, and woe to the urban politician who failed to march in the local parade.

Fast-forward to 2008, and Columbus Day is also el Dia de la Raza, among other designations; it is a day not only of parades, but also of protests. The clever p.r. move of the nineteenth century is now met with silence by much of the media, though tomorrow’s papers will surely include a red, white, and green photograph or two. Would that my vowel-ended forebears had chosen to rally around a historically vague hero like Saint Patrick and advocate nothing more polarizing than the excessive consumption of green beer. Still, the federal government has enshrined Columbus and his day as a celebration of both his voyages and of Italian-American culture – so whether or not you’re willing to leave the gun, you may as well take the cannoli.

Deconsecrating a civil holiday is a tricky business, even if the day is observed primarily through used-car sales and out-of-step marching bands. As Tyson Foods learned recently when it agreed to replace Labor Day with Eid al-Fitr as a paid day off at a Tennessee facility, holidays are a cultural battleground. While Columbus Day may eventually transform into something more inclusive, or be combined with another observance like the joining of Washington’s and Lincoln’s birthdays to form Presidents Day, many of us do in fact have a federally sanctioned day off. One that, media silence notwithstanding, requires at least a moment of reflection.

Take a close look at this sandal from John Galliano’s runway show for Christian Dior. The carved statuette that forms the heel is reportedly a Masai fertility symbol.

Even setting aside the awkward juxtaposition of a curvy, pregnant woman with teenage fashion models so thin that they may not even be capable of conceiving (a legal issue for [...]]]> Many thanks for the invitation to join you all in blogging at Concurring Opinions! During my visit I’m looking forward to writing about things that are not necessarily part of my law-and-fashion beat over at Counterfeit Chic, but to start off I can’t resist sharing an image from Paris Fashion Week that touches upon – or, rather, walks all over – both fashion and cultural property.

Take a close look at this sandal from John Galliano’s runway show for Christian Dior. The carved statuette that forms the heel is reportedly a Masai fertility symbol.

Even setting aside the awkward juxtaposition of a curvy, pregnant woman with teenage fashion models so thin that they may not even be capable of conceiving (a legal issue for another day), the colonialist image is a disturbing one. Galliano, like many other Western designers, is known to “ransack the world’s closets for inspiration,” as I put it in my first book. Many of the resulting cultural hybrids (to use Naomi Mezey’s term) are extraordinarily beautiful expressions of human creativity that few would wish out of existence, even if greater norms of attribution to source communities should be developed and encouraged. Some uses of others’ cultural products, however, are simply inappropriate. Placing an African religious symbol literally under the heels of predominantly white women on a European runway is one such offensive use. Selling those same shoes to wealthy women around the globe is another.

I’m reminded of an Australian case that I’ve written about and taught, along with Christine Haight Farley and a number of other scholars. Milpurrurru v. Indofurn Pty. Ltd., (1994) F.C.R. 240, involved a rug merchant who appropriated a series of sacred Aboriginal images for his carpets. It happened that in this case the theft was so literal that copyright law provided a remedy. But what about damages for the desecration of the sacred images that had been trodden underfoot? Or the fact that, lengthy as copyright terms are, religious beliefs are likely to outlast them? Or the potential appropriation of religious images that are not the work of a specific living artist but are instead iconic forms, repeated and passed down over time?

To be fair, maybe the admittedly brilliant Galliano or the august fashion house for which he designs consulted authorized Masai representatives and female elders, who freely and without the pressure of economic or other coercion licensed the use of the fertility figure. It could even be their gift to the reproductively challenged pale populations to their north. But I doubt it.

Perhaps the most peaceful resolution of an issue like this one is a demand for mutual inquiry and respect, rather than protective legislation. Moreover, bearing in mind the violent response to Danish editorial cartoons of Mohammed several years ago and the resulting tension between religious demands and freedom of speech, any such legislation would require extraordinarily careful drafting. But if the cultural “owners” of this fertility symbol object to its commercialization, there should be some forum for their concern.