RIP Ian Macneil: a lawyer, law professor, landlord, and mensch.

From the Times of London, the obituary of Ian Macneil, a lawyer, law professor, and landlord who embodied the ideal that ownership may be more about proprietorship than about sucking every last dollar (or pound) out of your property:

Ian Macneil, 46th chief of the Clan Macneil and 26th Macneil of Barra, was a much-respected American-born contract lawyer who gave his tenants and neighbours on the Outer Hebridean island of Barra security of tenure on the most favourable contract terms imaginable.

As one of the world’s leading scholars in the field of contract law Macneil was particularly associated with the invention, development and exposition of “relational contract theory”, which posits that all contracts belong in the context of complex webs of exchange relations.

As laird of Barra, though, he was so popular a landlord that when he first offered the islanders part of his island estate for a nominal sum in 1981 they declined, saying they were quite happy and saw no need for change.

In 2003 he did transfer his 9,000 acres in the southern half of Barra into public ownership on condition that the islanders could choose, at any time, to take over the land themselves without cost. Macneil, who was at that time 74, said he was giving up the property because running a crofting estate was a time-consuming business and he was “beginning to slow down”.

He expressed confidence that the Scottish Executive’s Rural Affairs Department would run the property in the crofters’ best interests, but ensured that if the islanders, many of them Gaelic-speaking, ever chose to take over the islands they would be given both Barra and its neighbour, Vatersay, without charge. The islands were, in effect, put in trust for their inhabitants. . . .

One other incident stands out from his professional career: in 1988, while on a visiting professorship at Harvard, Macneil taught the young Barack Obama, and was so impressed that he told his wife he thought he might have America’s first black President in his class. Macneil was invited to President Obama’s inauguration in Washingtonlast year but was unable to attend because of failing health.

From his father’s death in 1970 Macneil was much involved in Barra, running the estate, arguing for the interests of the island’s fishermen and crofters, and protecting the island’s air service from proposed cuts. His father had restored the ruined family seat, Kisimul Castle in Barra, but in 2000 Macneil, who had a home in Edinburgh and occupied a croft on Barra, donated the castle, which is now run by Historic Scotland, to the nation for a peppercorn rent of a bottle of malt whisky and £1 a year. It was a typically practical gesture by a notably kind and learned man

Rhetoric, hot air, and powerful speech

Charlotte Higgins in the Guardian writes about Barak Obama’s power as a speaker and its connections to ancient oratory, Obama’s training as a lawyer, and the connections between writing and speaking:

There have been many controversial aspects to this presidential election, but one thing is uncontroversial: that Obama’s skill as an orator has been one of the most important factors – perhaps the most important factor – in his victory. The sheer numbers of people who have heard him speak live set him apart from his rivals – and, indeed, recall the politics of ancient Athens, where the public speech given to ordinary voters was the motor of politics, and where the art of rhetoric matured alongside democracy.

Obama has bucked the trend of recent presidents – not excluding Bill Clinton – for dumbing down speeches. . . .Though he has speechwriters, he does much of the work himself. (Jon Favreau, the 27-year-old who heads Obama’s speechwriting team, has said that his job is like being “Ted Williams’s batting coach.”) . . .

More than once, the adjective that has been deployed to describe Obama’s oratorical skill is “Ciceronian”. Cicero, the outstanding Roman politician of the late republic, was certainly the greatest orator of his time, and one of the greatest in history. A fierce defender of the republican constitution, his criticism of Mark Antony got him murdered in 43BC.

During the Roman republic (and in ancient Athens) politics was oratory. In Athens, questions such as whether or not to declare war on an enemy state were decided by the entire electorate (or however many bothered to turn up) in open debate. Oratory was the supreme political skill, on whose mastery power depended. Unsurprisingly, then, oratory was highly organised and rigorously analysed. The Greeks and Romans, in short, knew all the rhetorical tricks, and they put a name to most of them.

It turns out that Obama knows them, too. One of the best known of Cicero’s techniques is his use of series of three to emphasise points: the tricolon. (The most enduring example of a Latin tricolon is not Cicero’s, but Caesar’s “Veni, vidi, vici” – I came, I saw, I conquered.) Obama uses tricola freely. Here’s an example: “Tonight, we gather to affirm the greatness of our nation, not because of the height of our skyscrapers, or the power of our military, or the size of our economy …” In this passage, from the 2004 Democratic convention speech, Obama is also using the technique of “praeteritio” – drawing attention to a subject by not discussing it. (He is discounting the height of America’s skyscrapers etc, but in so doing reminds us of their importance.)

One of my favourites among Obama’s tricks was his use of the phrase “a young preacher from Georgia”, when accepting the Democratic nomination this August; he did not name Martin Luther King. The term for the technique is “antonomasia”. One example from Cicero is the way he refers to Phoenix, Achilles’ mentor in the Iliad, as “senior magister” – “the aged teacher”. In both cases, it sets up an intimacy between speaker and audience, the flattering idea that we all know what we are talking about without need for further exposition. It humanises the character – King was just an ordinary young man, once. Referring to Georgia by name localises the reference – Obama likes to use the specifics to American place to ground the winged sweep of his rhetoric – just as in his November 4 speech: “Our campaign … began in the backyards of Des Moines and the living rooms of Concord and the front porches of Charleston”, which, of course, is also another tricolon. . . .

It is not just in the intricacies of speechifying that Obama recalls Cicero. Like Cicero, Obama is a lawyer. Like Cicero, Obama is a writer of enormous accomplishment – Dreams From My Father, Obama’s first book, will surely enter the American literary canon. Like Cicero, Obama is a “novus homo” – the Latin phrase means “new man” in the sense of self-made. Like Cicero, Obama entered politics without family backing (compare Clinton) or a military record (compare John McCain). Roman tradition dictated you had both. The compensatory talent Obama shares with Cicero, says Catherine Steel, professor of classics at the University of Glasgow, is a skill at “setting up a genealogy of forebears – not biological forebears but intellectual forebears. For Cicero it was Licinius Crassus, Scipio Aemilianus and Cato the Elder. For Obama it is Lincoln, Roosevelt and King.”

Steel also points out how Obama’s oratory conforms to the tripartite ideal laid down by Aristotle, who stated that good rhetoric should consist of pathos, logos and ethos – emotion, argument and character. . . .

In English, when we use the word “rhetoric”, it is generally preceded by the word “empty”. Rhetoric has a bad reputation. McCain warned lest an electorate be “deceived by an eloquent but empty call for change”. Waspishly, Clinton noted, “You campaign in poetry, you govern in prose.” The Athenians, too, knew the dangers of a populace’s being swept along by a persuasive but unscrupulous demagogue (and they invented the word). And it was the Roman politician Cato – though it could have been McCain – who said “Rem tene, verba sequentur”. If you hold on to the facts, the words will follow.

Cicero was well aware of the problem. In his book On The Orator, he argues that real eloquence can be acquired only if the speaker has attained the highest state of knowledge – “otherwise what he says is just an empty and ridiculous swirl of verbiage”. The true orator is one whose practice of citizenship embodies a civic ideal – whose rhetoric, far from empty, is the deliberate, rational, careful organiser of ideas and argument that propels the state forward safely and wisely. This is clearly what Obama, too, is aiming to embody: his project is to unite rhetoric, thought and action in a new politics that eschews narrow bipartisanship. Can Obama’s words translate into deeds? The presidency of George Bush provided plenty of evidence that a man who has problems with his prepositions may also struggle to govern well. We can only hope that Obama’s presidency proves that opposite.

One of the most impressive and useful things to me about Obama’s speeches is his ability to unite his rhetorical moves (like the use of anaphora and epiphora noted in the Higgins’ article) to very powerful themes.

The most notable example of this to me was his 2004 Convention speech — the part about there not being a “Red or Blue America,” but, rather, “a United States of America,” etc. That speech, in addition to employing numerous rhetorical flourishes, employed them all to further the idea we who grew up in the U.S. have all grown up with: e pluribus unum; out of many, one. To me, that idea — that we are a united country precisely because we recognize and respect our vast differences — has always been one of the best things of what it means to be a U.S. citizen.

Sometimes I think that when we talk about rhetoric we focus on the devices at the price of the content we mean them to convey. I always think the primary task is to identify a theme or themes the speaker/writer wants to convey — then one can use the devices to further that theme. Without the theme, the devices really are just empty rhetoric.

Barack Obama, law professor

A former student’s account of the President-Elect as a law professor.

Richard Epstein is considered one of the most brilliant people in legal academia, but I genuinely hope my Contracts students don’t feel at the end of the year the way this student felt about Epstein’s Contracts class:

You don’t actually learn the law in law school, at least not at a school like Chicago. Law school is for training you to think through arguments like a lawyer would, and to give you a lay of the land in various fundamental legal areas. Put another way: after spending two quarters studying Contracts with Richard Epstein, I had no idea how to actually draft a contract.

The confusion (and, often, anxiety) that inevitably arises when confronting new and difficult problems

To allay anxiety caused by their inevitable confusion, I regularly explain to my students that any problem worthy of their professional expertise will require a period during which they do not have a clue how to solve the problem, when they feel completely confused.  I have to confess utter confusion regarding how this election will turn out.  On the one hand, a Democrat victory seems inevitable.  There is no one I know well who isn’t hurting these days.  The economy is in a shambles, prices on necessities are skyrocketing, we haven’t yet captured or killed Osama Bin Laden, Afghanistan is in chaos, what “victory” realistically constitutes in Iraq remains a mystery (do we really expect to walk out of their with a strong and democratic ally?) . . . I could go on.

At the same time, I would’ve been astounded during most of my life to think the U.S. would elect a black as President unless he happened to be a conservative Republican.  And my belief that a majority of U.S. voters would choose a Democrat this year runs up against that unshakeable feeling.  There are certainly people who will say their vote is based on race (and anyone who says otherwise really is out of touch with certain segments of the U.S.), but they are in a minority.  Others claim astonishment that people think their intentions are based on race even when all indications are otherwise.  Representative Lynn Westmoreland claims he is astonished that calling Barack and Michelle Obama “uppity” would be taken as a racist comment.

Others speak in a code maybe they themselves don’t realize is racist.  As reported in last week’s Cleveland Jewish News, a Cleveland mental health counselor, for example, is “’concerned not so much about Obama the man, but the influences he might be subjected to from Muslims. I know he was brought up as a Christian, but both his father and stepfather were Muslim, and there has to be some influence there,’ she maintains.  Although she also has serious reservations about McCain, she is ‘haunted’ by her concerns about Obama.’”

And then there are the people who’s financial motivations are difficult to separate from other motivations.  My son’s doctor yesterday asked me what I thought of Wednesday night’s Republican convention.  I said I thought it was “ugly.” He told me he thought it was excellent and that he doesn’t like “the people around Obama.”  Then he turned to my son and said, “You’re father’s a liberal.  He wants to make a lot of money and give it all away.”

I bit my tongue and stopped myself from saying, “Your doctor’s a conservative.  He wants to make a lot of money and keep it all for himself.”  But what do I expect from a loyalist to that a party that fraudulently claims Obama will will impose “painful tax increases on working American families” when in fact, as reported accurately by FactCheck.org, “Obama proposes to cut taxes for most individuals (81.3 percent of all households would get a tax cut), while raising them only for a relative few at the top”?

It’s difficult to separate people’s economic motivations from their more visceral motivations.  I can almost understand the people who make a lot of money and do not want to shoulder a fair burden of paying for the infrastructure, services, and schools necessary to a society that allows them and others to do so, but I cannot understand people like Mitt Romney (“It’s time for the party of big ideas, not the party of Big Brother!“) and Rudy Giuliani, the former mayor of New York City (“I’m sorry that Barack Obama feels that her hometown isn’t cosmopolitan enough. I’m sorry, Barack, that it’s not flashy enough.”). Check that — I can understand Rudy.  I once worked with Rudy.  I remember sitting across a desk from him and his eyes glazing over as I explained the results of legal research I had done for him.  His chief assistant was in the room, furiously taking notes.  I knew the assistant was the person I was reporting to while we were all pretending I was reporting to Rudy.  Rudy is a mediocre person wrapped in a remarkable amount of ambition.  I suspect Romney must simply be the same.  

The Republicans are, undeniably The Party in Power, Running as if it Weren’t.

Where will all of this leave us in November?  I don’t have a clue.  I need to follow the advice that I give to my students and not let this utter confusion cause me too much anxiety.