Subjective art; Objective law

Notre Dame Law Review

Volumn 85, Issue 4, 2010, Pages 1663-1686

  Wilkinson III, J Harvie ^a  

^a NONE

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EID: 77956357308     PISSN: 07453515     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (85)

1. OLIVER WENDELL HOLMES, JR., THE COMMON LAW 1 (Am. Bar Ass'n 2009) (1881).
2. See Jonathan Turley, Art and the Constitution: The Supreme Court and the Rise of the Impressionist School of Constitutional Interpretation, 2003-2004 CATO SUP. CT. REV. 69, 70 (discussing the Supreme Court's recent national security decisions in Hamdi v.umsfeld, 542 U.S. 507 (2004), Rasul v. Bush, 542 U.S. 466 (2004), and Rumsfeld v. Padilla, 542 U.S. 426 (2004)).
3. See E.H. GOMBRICH, THE STORY OF ART 506 (16th ed. rev. 1995) (discussing technique in Delacroix's paintings of Arabic and North African nomads).
4. Id.
5. Id. at 504 (describing Paris as the artistic capital of Europe).
6. See JOHN REWALD, THE HISTORY OF IMPRESSIONISM 79 (4th rev. ed. 1973). The influence of the Acadfimie was so strong that some patrons returned paintings and forced artists to refund the purchase price if the artwork subsequently was rejected. Id.
7. See id. Of some five thousand paintings submitted, three thousand were rejected. As Rewald notes, "Nobody could remember a similar proportion of refusals." Id.
8. See id. at 80-81.
9. Id. at 82-85 (discussing negative popular opinion about the "Salon des Refuses" at the time).
10. See id. at 82.
11. See H.W. JANSON & ANTHONY F. JANSON, HISTORY OF ART 740 (6th ed. rev. 2004) ("[Luncheon on the Grass] offended the morality of the day by placing the nude and nattily attired figures in an outdoor setting without allegorical overtones. Even worse, the neutral title offered no 'higher' significance.").
12. Napoleon III himself pronounced the painting "immodest"-an irony coming from a prince not noted as a paragon of morality in his own life. REWALD, supra note 6, at 85.
13. JANSON & JANSON, supra note 11, at 742 ("Painting needed to be rescued from competition with the camera.").
14. Id. (discussing the work of Édouard anet).
15. Id.
16. See REWALD, supra note 6, at 318.
17. Id. at 318-24 (printing the sarcastic critique of the Impressionists' style in its entirety); see also GOMBRICH, supra note 3, at 519 ("[The 1874 exhibition] contained a] picture by Monet which the catalogue described as 'Impression: sunrise'-it was the picture of a harbour seen through the morning mists. One of the critics found this title particularly ridiculous, and he referred to the whole group of artists as 'The Impressionists.' He wanted to convey that these painters did not proceed by sound knowledge, and thought that the impression of a moment was sufficient to be called a picture. The label stuck.").
18. GOMBRICH, supra note 3, at 522.
19. See JANSoN & JANSON, supra note 11, at 811-12.
20. Id. at 812.
21. ROBERT ROSENBLUM, CUBISM AND TWENTIETH-CENTURY ART 14 (2001).
22. Id. at 13.
23. See id. at 13-14 (describing the early development of Cubism).
24. JANSON & JANSON, supra note 11, at 668 (describing modernism).
25. See generally MANFRED F. BUKOFZER, MUSIC IN THE BAROQUE ERA (1947) (discussing the evolution of music from the early to late Baroque periods); DONALD JAY
26. GROUT & CLAUDE V. PALISCA, A HISTORY OF WESTERN MUSIC 807-08 (5th ed. 1996) (defining the Baroque period as 1580-1730 and the Classical period as 1730-1820).
27. See generally ALFRED EINSTEIN, MUSIC IN THE ROMANTIC ERA (1947) (providing an overview of music's Romantic period); GROUT & PAUSCA, supra note 25, at 818 (defining the Romantic period as 1810-1890).
28. See generally WILLIAM W. AUSTIN, MUSIC IN THE 20TH CENTURY (1966) (providing an overview of the developments in twentieth-century music).
29. BUKOFZER, supra note 25, at 17.
30. See, e.g., GERALD ABRAHAM, THE CONCISE OXFORD HISTORY OF MUSIC 523 (1979) (discussing large collections of sonatas by Clementi, C.P.E. Bach, Haydn, Beethoven, and a number of lesser-known composers); id. at 498 (discussing several Mozart sonatas for pianoforte, a prototype of the piano); id. at 618 (discussing Beethoven's cello sonatas, Op. 5, and his violin sonatas, Op. 12); GROUT & PAUSCA, supra note 25, at 471 ("Most instrumental music of Haydn, Mozart, Beethoven, and their contemporaries, whether called sonata, trio, string quartet, or symphony, is written in three or four movements of contrasting mood and tempo.").
31. GROUT & PALISCA, supra note 25, at 471-72.
32. See, e.g., EINSTEIN, supra note 26, at 142.
33. Id.
34. Id.
35. Id. (quoting composer Richard Wagner's enthusiastic comments about Liszt's piece).
36. GROUT & PAUSCA, supra note 25, at 563-64.
37. Id. at 564.
38. See id. at 598 (discussing Schumann's musicial compositions and style).
39. Id.
40. Id. at 733 ("Much late Romantic music, especially in Germany, had been tend ing toward atonality. Chromatic melody lines and chord progressions-in the music of Wagner, for example-had resulted in passages in which no tonal center could be perceived; but these passages, relatively short and exceptional, were anchored in a tonal context."); see also ALEX Ross, THE REST Is NOISE 39-45 (2007) (discussing Debussy's flirtations with atonality in his works).
41. GROUT & PALISCA, supra note 25, at 733 (discussing Schoenberg's decision to "treat all twelve notes of the octave as equal instead of regarding some of them as chromatically altered tones of a diatonic scale"); Ross, supra note 39, at 55-61 (analyzing Schoenberg's life and his use of atonality).
42. See AUSTIN, supra note 27, at 194-222 ("Disagreeing about the meanings and values of [Schoenberg's] principles, [musicians] had to agree that Schoenberg somehow contributed as much as any one man to the musical culture of the 20th century ... .").
43. See GROUT & PALISCA, supra note 25, at 751; cf. Ross, supra note 39, at 41 ("Musicians and listeners had long agreed that certain intervals, or pairs of notes, were 'clear,' and that others were 'unclear.' The quoted words can be found on a cuneiform tablet from the Sumerian city of Ur.").
44. GROUT & PALISCA, supra note 25, at 751-52 (discussing examples).
45. See id. at 751 (discussing the use of "a continuum, an unbroken range of sound from the lowest to the highest audible frequencies, without distinguishing separate tones of fixed pitch").
46. Id. at 753-54.
47. Ross, supra note 39, at 368-69.
48. Id. at 369.
49. Compare, e.g., WILLIAM SHAKESPEARE, Sonnet 18, in SHAKESPEARE'S SONNETS 19 (Stephen Booth ed., 2000), with E.E. CUMMINGS, anyone lived in a pretty how town, in SELECTED POEMS 109 (Richard S. Kennedy ed., 1994). Cummings's name has frequently been written in lowercase letters in a nod to his unique style, although the writer himself did not expressly approve.
50. See CHRISTOPHER SAWYER-LAUCANNO, E.E. CUMMINGS, at ix (2004).
51. See, e.g., E.E. CUMMINGS, r-p-o-p-h-e-s-s-a-gr, in SELECTED POEMS, supra note 48, at 42.
52. For an example from a different artistic discipline, see Alastair Macaulay, Ballroom: More Sexily, Less Strictly, N.Y. TIMES, Aug. 13, 2009, at CI (explaining that, from a dance critic's perspective, professional ballroom dancing "has grown unrecognizable in recent decades" due to loosening of the art form).
53. See Turley, supra note 2, at 73 ("New scientific theories, particularly atomic physics, had freed artists of the hold of the objects they painted. As Wassily Kandinsky said, '[a]ll things become flimsy, with no strength or certainty.'" (alteration in original) (quoting SAM HUNTER & JOHN JACOBUS, MODERN ART 10 (1985)).
54. See id. at 70.
55. Id. at 71.
56. ROSENBLUM, supra note 21, at 43.
57. Id.
58. GOMBRICH, supra note 3, at 416.
59. William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, 27 S. TEX. L. REV. 433, 436 (1986).
60. Barack Obama, Speech at the Planned Parenthood Conference in Washington, D.C. (July 17, 2007).
61. See, e.g., Charlie Savage, A Judge's View of Judging Is on the Record, N.Y. TIMES, May 15, 2009, at A21 (compiling statements by Justice Sotomayor).
62. See, e.g., Theodore Roosevelt, State of the Union Address (Dec. 8, 1908), reprinted in 43 CONG. REC. 21 (1908) ("The chief lawmakers in our country may be, and often are, the judges, because they are the final seat of authority. . . . The decisions of the courts on economic and social questions depend upon their economic and social philosophy ....").
63. U.S. CONST, pmbl.
64. Sherman Antitrust Act, 15 U.S.C. §§ 1-7 (2006).
65. Bipartisan Campaign Reform Act of 2002, Pub. L. 107-155, 116 Stat. 81 (2002) (codified as amended primarily in scattered sections of 2 & 47 U.S.C).
66. See BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 166 (1921) ("As the years have gone by, and as I have reflected more and more upon the nature of the judicial process, I have become reconciled to the uncertainty, because I have grown to see it as inevitable. I have grown to see that the process in its highest reaches is not discovery, but creation ....").
67. 410 U.S. 113 (1973).
68. 128 S. Ct. 2783 (2008).
69. Marcel Duchamp's famous work, L.H.O.O.Q., is effective as an attack on high art precisely because it is a bearded and mustached parody of the Mona Lisa.
70. See WILLIAM S. RUBIN, DADA AND SURREALIST ART 37 (1968). If the letters of the tide are pronounced quickly in French, the result is an off-color remark about the Mona Lisa.
71. WILLIAM S. RUBIN, DADA AND SURREALIST ART 37 (1968), Id.
72. See, e.g., THE FEDERALIST NO. 37, at 228-29 (James Madison) (Clinton Rossiter ed., 1961) (discussing the challenges of ambiguity inherent in all legal documents);
73. Philip A. Hamburger, The Constitution's Accommodation of Social Change, 88 MICH. L. REV. 239, 304 (1989) ("According to Locke and now Madison, political principles are complex ideas that are liable to be indistincdy conceived, and the indistinctness of these complex ideas inevitably produces obscurity.").
74. Judiciary Act of 1789, ch. 20,§ 8, 1 Stat. 73, 76
75. current version at 28 U.S.C. § 453 (2006).
76. See GOODWIN LIU ET AL., KEEPING FAITH WITH THE CONSTITUTION 2 (2009).
77. Indeed, as Michael McConnell has written: If the Constitution is authoritative only to the extent that it accords with our independent judgments about political morality and structure, then the Constitution itself is only a makeweight: what gives force to our conclusions is simply our beliefs about what is good, just, and efficient. Taken to its logical conclusion, this line of argument does not provide a reason for treating the Constitution as authoritative; it instructs us to disregard the Constitution whenever we disagree with it.
78. Michael W. McConnell, Textualism and the Dead Hand of the Past, 66 GEO. WASH. L. REV. 1127, 1129 (1998).
79. Liu ET AL., supra note 70, at 26.
80. Jack M. Balkin, Fidelity to Text and Principle, in THE CONSTITUTION IN 2020, at 11, 23 (Jack M. Balkin & Reva B. Siegel eds., 2009).
81. See U.S. SENTENCING GUIDEUNES MANUAL ch. 1, pt. A, at 1-14 (2009), available at http://www.ussc.gov/2009guid/GL2009.pdf (discussing the history and goals of the U.S. Sentencing Guidelines, specifically the desire to constrain judicial discretion while still retaining the flexibility necessary to respond to specific cases).
82. Cf. Joseph Raz, Legal Principles and the Limits of Law, 81 YALE LJ. 823, 848 (1972) ("When discretion is denied the law dictates which standards should be applied by all the judges. When discretion is allowed each judge is entitled to follow different reasons but he must believe that they are the best. Otherwise, discretion can be equated only with arbitrariness, whim, and caprice.").
83. Jules L. Coleman & Brian Leiter, Determinacy, Objectivity, and Authority, 142 U. PA. L. REV. 549, 582 (1993).
84. See, e.g., David E. Van Zandt, Commonsense Reasoning Social Change, and the Law, 81 Nw. U. L. REV. 894, 938 (1987) ("In some cases, law is an attempt to alter common- sense ideas of the world in specific areas. Law can be in tension with commonsense theories about the world; it can be an attempt by the legislature or the courts to alter such theories. In this form, law is an ideology imposed from without that seeks to raise the costs of nonadherence so that individuals will alter their pictures of the world and comply.").
85. See Darryl Lorenzo Wellington, Uncle Tom's Shadow, THE NATION, Dec. 25, 2006, at 26 (recognizing Uncle Tom's Cabin as "a social phenomenon and, arguably, the most influential novel in American history").