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Volume 23, Number 4 (1998) reprinted by permission Legal Studies Forum HARRINGTON'S OCEANA, F. TOCQUEVILLE FLOYD, AND THE INFLUENCE OF TECHNOLOGY UPON HISTORY GERARD E. GIANNATTASIO years and said afterward that it had been the worse time he'd had in civilian life with his clothes on. You have to know our Zio. Julia said it best when describing the Z's mind. She called it quirky, very quirky, a veritable paradigm of eccentricity. Who else could run a course called "Thinking about Abominations" whose subjects are homosexuality, abortion, fetal tissue experimentation and mercy killing? The title and course description satisfies the trustees of Floyd Community College and the content satisfies the student body. Most of the gay and Lesbian students take it, the pre-med advisor recommends it, and pro-life and pro-choice students coexist in his classroom. The Zio is a former Air Force officer and claims that early training there allows him to keep a guided humanities dialog from developing the atmosphere of a tabloid TV talk show. With his Tocqueville Floyd book Zi Pasqual had been trying-and succeeding-in keeping that quirkiness in check. He had previously presented three of its chapters to the Suicide Colloquium: A Well Kissed Baby and a Well Shaken Hand: F. Tocqueville Floyd and the Transformation of New York Tort Law; A New Yorker is Still a New Yorker When the Pedal Hits the Metal: F. Tocqueville Floyd and the Long Arm of New York; and Family Members and Friends Are Not Made of Rubber: F. Tocqueville Floyd and the Fate of the Foreign Guest Statute in the Courts of New York. The Llewellyn University Colloquium on Jurisprudence, Rights Governance, and Social Thought-the formal name of the Suicide Colloquium-had found them workmanlike, but rather too exuberant in their advocacy of Senator Floyd's seminal influence as a New York State judge. Because the chapters considered legal doctrine-tort law, long arm statutes, and conflicts of law-the papers were conventional, even old-fashioned in their form. The Zio had first conceived of the project some fifteen years before, and that was how one did it then. As such the chapters were little different from the useful but pretty dull stuff that legal scholars turn out by the short ton even today. The Zio's most recent paper was called simply "The Judicial Reputation of F. Tocqueville Floyd." He had some suspicions that the Colloquium might not like it, but no idea of how badly its members would savage the piece. The chapter was all charts, graphs, and statistics. The Colloquium members probably dislike statistics almost as much as they dislike mysticism. It's the old problem of how many Tories there were in Linch Pin, New York, in 1779 and available there to dance through the eye of a needle. Does it tell you more to know there were "three" or "only a few"? Grandmother Palmerina says it does make a difference and that it is better to know there were three dancing Tories. Keep in mind, however, that she was trained as an analytic chemist. The Colloquium. raked the Zio over the coals of their disesteem for his use of statistics. Zachariah Koingberg, whose intellectual rambunc- tiousness has earned him the nickname Zack King Kong, was particu- larly zestful in his comments. His field is twelfth century canon law where he's somewhat of an enfant terrible and works hard at it. His speciality didn't stop him from tearing into a paper on a twentieth century New York judge. Zack King Kong wasn't alone, of course. Everybody got into the act. Among them was Louellen Aldo Pargiter. Her current interest is in the ethical and moral universes of Native American women as contrasted with those of the "female European invaders" portrayed in nineteenth century popular feminine fiction. Like Zachariah, she wasn't shy about saying what it was that she didn't like about our Zio's paper and had come prepared with a list. The newly minted Doctor Pargiter had just been invited to join the Llewellyn law faculty and was feeling pretty cocky. She celebrated her good fortune by ripping our uncle's face off. The Zio took it like the good sport he is. "Sometimes you cant please everyone, sometimes you can't please anyone, and sometimes, just sometimes," he told us over dinner that evening. Statistics wasn't the only problem with the Z's most recent presentation. The venerable Converse Wolmanger, founder of the Colloquium, demanded to know why anyone would want to write a biography of someone who hadn't even been dead yet for thirty years. He, personally, wouldn't write nowadays about an individual who had been born after 1800. Tocqueville Floyd's papers might be open, he reminded our Zio, but other people's might not. When those archives became available, they could have a serious impact on a biography of Senator Floyd. "Why," he asked, "would you want to write a book which could become obsolete in your own lifetime?" Arianne observed that evening at dinner that Zi Pasqual is probably Tocqueville Floyd's last chance at a biography. If there is ever another that makes his obsolete, it will only be written because the Zio pointed the way. Tanya suggested that the Z and Arianne collaborate on a juvenile biography of Tocqueville Floyd after he finishes his big one. Julia proposed that the junior edition go out first. The only worthwhile biographic treatment that we have of the first John Marshall Harlan, she observed, is Frank B. Latham's The Great Dissenter, a 1970 YA book. There's some worth to Julia's proposal. Converse Wolmanger is one of the greatest of living American jurisprudents, but his books only sell about 3,000 copies each. Even Davy Jones Boscawen's seminal modrn legal classic Militia Law in the Colony of New Wales and Cornwall (1977) didn't sell much over 5,000 copies. The trick, of course, is who you can get to read those few thousand copies. Tocqueville Floyd lived a life of public service and frequent adventure, having been only briefly a judge-perhaps the dullest of occupations, with nothing to do all day but sit and listen to the brilliant arguments of counsel like us. But Tocqueville Floyd did just about everything a common lawyer can be called to do in America, doing it well and with never a hint of scandal. We all agreed we wouldn't mind seeing his biography in the hands of even a thousand school children. The Zio told us that Friday night at dinner that he understood Professor Wolmanger's position. We made Zi Pasqual explain it for us in some detail. We're all common lawyers ourselves. Some of us are country lawyers and some of us are Wall Street lawyers and we drew it out of him by degrees. Professor Wolmanger, Zi Pasqual reminded us, has spent his entire life working in an area of the history of ideas where the intellectual dust has long since settled. This did not mean-he explained with some haste after Amelia Amanda (who is very quick) called Wolmanger a philosophical archaeologist-that there wasn't room for new analysis and interpretation, but that if you are very good, and Wolmanger is, you never have to worry about anything in the jungle of ideas ever turning around and biting you on your philosophical rump. In order to do definitive work that would live on, the good professor has resolutely refused over the decades to align himself with any group of scholars, mainstream or splinter, espousing an agenda. "Agendas," Wolmanger is fond of saying, "are the death of work that lasts because, won or lost, the work dies with the cause." For Converse Wolmanger, the Zio explained, human intellect came to a fine point in 1783. He has to do on a daily basis with the thoughts of Harrington and Hobbes, Wilkes and Burke, Jefferson and Paine. His projects rarely take him beyond the year 1800, except for occasional forays to Roy Rogers with his grandchildren, where he speaks with great animation, delighting them with tales of the badmen and lawmen of the Old West. Indeed, he is the author of a small study, long out of print, entitled Benjamin O'Clerk and the Law Along the Sangre de Vaca. It was the judge's well marked copy of Harrington's Oceana, found in the stacks of Llewellyn University's Melancton Library in the future theorist's sophomore year, that sparked the epiphany which has guided Wolmanger since. We remained unconvinced that Converse Wolmanger's position was necessarily sound. Surely, we noted to Zi Pasqual, someone has to tackle ideas when they're still new. Amelia Amanda summed it up with a particularly apt metaphor, saying that if someone wasn't first on the scene to take the constitutional body count, draw chalk lines around the spent notions, and bury the dead ideas, scholars like Professor Wolmanger wouldn't have their harmless philosophic fossils to disinter and play around with centuries later. Amelia Amanda was just getting warmed up and was about to do something really stunning by way of improvisation on Hamlet's "Be This the Skull of a Lawyer" soliloquy when Tanya kicked her hard under the table and executed her train of thought. It was just two weeks later that some of the virtues of Converse Wolmanger's position were made clear to us and in the most readily understandable manner. To a certain extent we even suddenly found ourselves sharing the old jurisprudent's views. We are, after all, simply common lawyers here. If that means we tend to few flights of fancy, it also means we are sharp, tough minded, and adaptable. Even if we came up with the notion ourselves, we're willing to junk it if it doesn't work. Each year Zi Pasqual judges at the National History Day competition held at William Floyd University. His old mentor Professor Ritrovato has been chief judge on the county level for going on two decades now. That year the Zio led the three person team that judged the group project category, junior division. The winter had been a bad one for illnesses on Long Island-ask our cousin Dr. Sam, a pediatrician. Even adults that year, ones who never got sick, came down with one bug after another. Eight of the judges called in sick, and late the night before the judging Professor Rit called our uncle and asked him to bring his own team. Julia and Tanya said they would go. Amelia Amanda tagged along to see if she might be needed. She gave campus tours and filled out award certificates. The judges weren't the only people calling in sick. Professor Wolmanger's revenge began in the William Floyd Student Center's multipurpose room at one of the long tables midway through the junior projects. The year's theme for History Day was "Technology in History." Zi Pasqual, Tanya, and Julia found themselves confronted by four seventh grade boys in dark suits standing by their project: "The Satellite Transponder in History." Julia locked the wheels of her chair and tried to keep from laughing. She, Tanya, and Amelia Amanda, as young associates on Wall Street, had handled the financing for some of the first commercial trans- ponders. It had only been a dozen or so years before, but the seventh graders had been in diapers then. There had been interesting legal aspects, since resolved, revolving around the difficulty of finding a jurisdiction in which to file a security interest. Orbital property had not been covered by the Uniform Commercial Code as then in effect. There had also been the question of a remedy in case of a default: you couldn't just send the local sheriff or a federal marshal to seize the transponder. Enforcing your security interest would have been a job for Starfleet's Enterprise. The Zio has always been good with children. That's how he got his nickname, which means uncle in dialect. He's really just our older cousin, except to Tanya, who is younger but happens to be our aunt. The four seventh graders got off considerably lighter at the hands of Zi Pasqual and his henchpersons than Zi Pasqual himself had at the hands of Converse Wolmanger and the intellects of the Suicide Colloquium. The students would receive a filled out scoring sheet with judge's comments at the end of the day, but the Zio always gives immediate personal feedback heavy on constructive criticism because, although the winners at county level go on to Albany, he wants the losers back the following year for another shot at the title. The Z gave the four boys a number of ways to increase the historical depth of their presentation. Among other things, he pointed out the wisdom of starting off with Arthur C. Clarke, the writer, who first came up with the notion of hanging satellites in a geosynchronous orbit back around the time of World War II. At the next station they found three eight grade girls and "Microwave Cooking and Its Effects." The Zio ran his fingers through his beard and looked over at an extremely solemn Tanya and Julia. He suggested the young women begin with the birth of radar to give their subject a deeper historical sense. He told them how, "during the Cold War," air police guards stationed in the far north at Distant Early Warning radar sites had discovered that, if they stood in the path of the radar waves, they were able to warm up. Learning this, and knowing that they couldn't stop the practice, Air Force brass put time limits on how long the airmen on guard could expose themselves to the DEW line's microwaves. Julia and Tanya made suggestions having to do with the addition of pictures of cavemen barbecuing mammoth and cowboys gathered around the chuck wagon. The girls thanked them gravely, and the judges moved on. The history of microwave cookery was immediately followed by another foursome of seventh grade boys. They were from Jasper Walker Middle School in Newhold. Their project was "The Satellite Dish: History in the Making." It detailed, with photographs and models, the erection and shrubbing in, as per local village ordinance, of a rather large receiving antenna. The Newholders were given various hints to help them inject more history into their presentation. They also learned about Arthur C. Clarke from the Zio. Zi Pasqual said nothing as one of the three eighth grade girls waiting at the next project handed him and his team each a copy of the required bibliography and description of why they had chosen their subject: "The Cellular Phone: Furthering the American Dream." At that point Julia mentioned that she needed a break to visit the ladies'room. Tanya said immediately that she would push, this despite the fact that Julia's chair is motorized. Tanya said later it was the first thing that came into her head as an excuse. The two of them got out of the multipurpose room and most of the way to the rest rooms by the Student Center Theatre before giving way to laughter. They weren't laughing at the children. As we rode home in Julia's van, Zi Pasqual told us that the four projects had given him a deeper insight into Converse Wolmanger's feelings about not working with material more recent than 1800. "Of course," the Zio said, "he can do that because he's really an intellectual historian working with the development of jurisprudence over time." He was silent for a moment. "Anyhow," he said finally, "while I don't intend to desert Tocqueville Floyd, I do see Wolmanger's point more clearly now. Tanya shook her head. "Well," she said, "you'll never convince me you didn't give microwave cookery first place out of spite." Julia smiled, not taking her eyes from the traffic on the parkway. "I think they won because all three of them are Dr. Sam's little patients. The Buchbinder girl was fit to burst." We laughed at that. It's always fun to get back to our alma mater and it's amazing what you learn there. |
