The following is Part II in a guest essay by Kurt Newman. (Part I: On Oliver Wendell Holmes, Jr. and Copyright Jurisprudence)
At the conclusion of the first installment of this essay, I promised that in this second part I would take up the question of Justice Holmes’s pragmatism in light of the work of James Livingston, and then contextualize the class politics of Bleistein with the tools provided by Jacques Rancière’s writing on the politics of aesthetics. I had hoped to attend to both Livingston and Rancière in this installment, but space considerations compel me to focus on the former below and leave discussion of the latter for a final section or sections.
On one level, to argue for the significance of pragmatism to the development of Oliver Wendell Holmes’s copyright jurisprudence is to commit a pleonastic fallacy. Holmes is a well-known pragmatist. To say that “pragmatism matters” in his legal thinking risks summoning in the reader the great linguistic innovation of the American adolescent: “duh.”
Such an emphasis is necessary, however, for two reasons. On the one hand, as we saw in the case of William Fisher, legal scholars do not, by and large, regard pragmatism as an important source of new ideas in Progressive Era intellectual property jurisprudence, choosing instead to focus upon a hazily defined “liberalism” (if they accept in the first place that a significant change demanding historical explanation even took place). On the other hand, intellectual historians of pragmatism have not been particularly interested in Holmes-as-pragmatist .
Here, we turn to the work of James Livingston. What makes James Livingston’s reading of pragmatism so appealing–despite the fact that Livingston does not engage much with legal history–is its relentless conjugation of conceptual developments across the social field. Livingston identifies resonances between practices as varied as marginalist economics, new theories of the corporation and the political economy of corporate capitalism, literary naturalism, feminism, African American aesthetic culture, and, of course, the lucubrations of William James, John Dewey, Charles Peirce, George Herbert Mead, et al. It does not seem much of a stretch, then, to throw Oliver Wendell Holmes, Jr. into the mix.
Fundamental to Livingston’s argument is the contention (building on arguments ultimately consolidated by his mentor Martin Sklar in the classic work The Corporate Reconstruction of American Capitalism) that historians have misrepresented the contours of Gilded Age class struggle. Skilled workers in the 1880s and 1890s were winning, not losing. They refused to be driven to increase productivity, and economic trends resulted in the transfer of increasing shares of profits from capital to labor. Communities often supported strikes, and the national vernacular still venerated the dignity of labor while casting aspersions on capital ownership as parasitic. Such trends motivated vocal protests from businessmen and capitalist ideologues, and in fact set in motion much of the fervid intellectual activity that resulted in the rise of the “corporate liberal” regime.
For Livingston, pragmatist philosophy was but one strand of a complex intellectual response to these new realities. Charles Peirce and William James (and, I would argue, Oliver Wendell Holmes, Jr.), were co-conspirators with policy intellectuals Arthur Hadley, Jeremiah Jenks, and Charles A. Conant, and marginalist economists like John Bates Clark, in a collective effort to come to terms with the shifting terrain of class struggle. We will attend to Peirce and James below; first, we should review Livingston’s take on the conceptual revolution in economics, treating Conant and Clark as exemplary thinkers.
What was most important about late nineteenth century political economy was the end of laissez-faire, despite what still gets taught in intro survey courses. Hadley, Jenks, and Conant renounced allegiance to the idea of the unregulated market and scuttled Jean-Baptiste Say’s law of market equilibrium. At the same time, these thinkers came to accept that horizontal and vertical integration of industry under the aegis of large corporations was an inevitable consequence of mature capitalism.
Conant, for example, advocated for a central bank and prefigured the Federal Reserve system, and theorized the relationship between economic crises and the business cycle in a manner closer to Keynes or Minsky than to the vulgar Smithians we tend to associate with nineteenth century capitalism.
John Bates Clark, the leading nineteenth-century marginalist economist in the US, also registers as a more appealing thinker than one might expect: he took seriously the popular appeal of socialism (unlike so many other proponents of capitalism), and developed marginalism as both an ethical defense of the new corporate order and a map to a utopian future of socialized production . At the core of both tasks was the refutation of the analysis of political economy put forward by the agrarian republicans. Clark was particularly driven to answer their charge that capitalism was inherently exploitative, and that the managers, owners, analysts, and brokers who oversaw production and distribution were parasites. If this charge was true, Clark admitted, then “every right-minded man should become a socialist”. In works like The Philosophy of Wealth (1887), Clark therefore attempted to demonstrate that capitalism’s white-collar and green-eyeshade salariat were not vampires siphoning off value from underpaid workers, but were rather “mental laborers.”
In this interpretive gesture, Clark overturned the longstanding distinction between productive and unproductive labor, and repudiated, for all intents and purposes, the labor theory of value”. Bourgeois “mental laborers” were not parasites but the very “condition of labor’s productivity.” In the most optimistic version of this intellectual event, the extension of “productivity” to capitalists might end “class conflict,” serving as a source of organic solidarity . As we will explore below, this conceptual innovation dovetailed with the new theories of Peirce and James on the nature of cognition, and—importantly, for our purposes––pointed towards new ways of rationalizing the democratization of authorial labor in Progressive Era copyright jurisprudence.
Livingston highlights the powerful cultural implications of the new theory of utility: if wealth was now understood as an indicia of “relative well-being” with no conceivable objective or transhistorical measure,” new understandings of personhood and virtue would inevitably result. The marginalist model was not simply a way of justifying capitalists’ share of national income: economists were able to use it to “examine, to explain, to justify” the emergence of mass consumption and corporate enterprise .
In a pragmatist key, Livingston urges a less deterministic vision of the relation between persons and property, and a recognition that the “development of capitalism enables an active, experimental attitude towards truth, which demands purposeful production and manipulation of objects as the condition of certainty in knowledge” .
Historians have been unable to properly come to terms with pragmatism as the name for an expansive and in many ways emancipatory intellectual and cultural movement, Livingston argues, because of the tenacious survival of a Populist reading of the history of US capitalism. Commitments to Populism end up secretly imposing the values of a backward-looking creed, rooted in earlier nineteenth-century verities of Lockean labor theory and the Jeffersonian romance of the smallholder, onto evolving political, economic, and intellectual formations. Curiously enough, this Lockean republicanism often goes by the name of “Marxism.” Livingston suggests that by reading Marx carefully, and taking seriously the contributions of Marx’s most sophisticated American legatees (in particular Kenneth Burke and Martin Sklar), we come face to face with the fact that historical materialism provides little warrant for such nostalgic attachments.
Bargaining, Depression, Acceptance
To understand Livingston’s reading of pragmatism, it is useful to attend to the themes he distills in particular from Burke. Burke is a constant presence in Livingston’s work, providing a link, as it were, between William James and Hayden White . Like James, Burke seeks to adjourn the unanswerable questions of the speculative philosophy of history in favor of addressing those aspects of researching and narrating the events of the past that have a “cash value.” At the same time, Burke foreshadows White’s reduction of historical writing to strategies of narration (or “emplotment”) and politically meaningful rhetoric and allegory (or “tropism”). Consider the following passage from Attitudes Toward History:
Our philosophers, poets, and scientists act in the code of names by which they simplify or interpret reality. These names shape our relations with our fellows. They prepare us for some functions and against others, for or against the persons representing those functions. These names go further: they suggest how you shall be for or against .
Burke calls the various ways of organizing reality “frames of acceptance”: “the more or less organized system of meanings by which a thinking man gauges the historical situation and adopts a role with relation to it”. “Frames of acceptance,” Burke insists, are not the same as passivity; rather, they “fix attitudes that prepare for combat.”
In some ways foreshadowing the uses to which Gilles Deleuze would later put William James’s radical empiricism, Burke develops a philosophy of affirmation . The committed intellectual, Burke suggests, should above all be interested in the most effective means of spurring on and supporting positive social change, and in this regard negative, cynical, or morbid mindsets are of little use.
This becomes especially clear as Burke matches dominant tendencies in our “attitudes toward history” to the various literary categories familiar with the tradition of categorization of texts that stretches back to Aristotle’s Poetics (the obvious model here is Hegel’s Phenomenology of Spirit). For Burke, the main categories of “frames of acceptance” are the epic, the tragic, and the comic .
The epic and the tragic, Burke notes, are “frames of acceptance” rooted in the attitude of resignation, with causality not vested in superhuman hands, and the proper role of humans the acceptance of their place in the universe. The comic, on the other hand, which rises in periods of intense class stratification, reverses the attitude towards causality: whereas in tragedy, events find their causes in hubristic fights by humans against their preordained fates, in comedy, events are set in motion not by an excess of pride, but by the inevitability of human stupidity. Calamity results from the corruptibility of human intelligence, not the violation of a natural order. For Burke, this renders comedy a uniquely revolutionary tool: “humane enlightenment” can go no further than shifting the frame from a belief in the inherent viciousness of some or all people, to a sense that our political problems stem from widespread mistakenness, and thus much more amenable to human correctives .
Burke models a comic “frame of acceptance” for his readers in his adumbration of Livingston’s brief for corporate capitalism as a transitional stage on the road to socialism. Burke points out that in a political economy characterized by ample material resources, highly developed productive plant, and profitability rooted in “selling goods (i.e., distributing goods) to the people,” the pressure for transformative reform is great .
In a bold argumentative turn, Burke produces a model of transition from capitalism to socialism within the shell of modern corporate culture. “In our liberal democracies,” Burke writes, “the processes of political mediation have been leading towards socialism, via a policy which has been named (accuracy making for irony) the ‘socialization of losses.’” Only within a comic “frame of acceptance,” of course, could the “socialization of losses” appear as an opportunity for a reversal of positions that would take advantage of the move towards socialization but redirect it in the interests of ordinary citizens. Yet, it was undeniable, for Burke, that each successive depression brought an “increased demand for the ‘socialization of losses’” on the part of business, “as the resources of the national credit are drawn upon to cushion the deflation of private properties.” Cyclical depressions seemed to be “bringing capitalism progressively closer to socialism,” via “the back door”. These passages could not be more relevant to Livingston’s work. In our recent history of 1920s-style privatization and 1930s-style financial crisis, Livingston discerns, like Burke of the late 1930s, the contours of an immanent socialism.
In Pragmatism, Feminism, and Democracy, Livingston writes: “I believe that we still have a great deal to learn from this (Burkean/comic) attitude toward history.” Such an attitude teaches us that neither “principled abstention from corporate bureaucracy,” nor “simple opposition to corporate capitalism” is the “equivalent” or “the condition of progress toward social democracy”.
To sum up the ground we have covered so far, it might be most helpful to suggest that what Livingston is working out in his various treatments of pragmatism is the creation of a history of capitalism that is not, in some fundamental sense, conservative. This interpretive project necessarily scrambles our conventional sense of left and right: in particular, it paints most of left-wing historiography as fundamentally conservative, and positions Richard Hofstadter, for example, a thinker often excluded from the left history canon, as one of the only authentic progressive historians of the twentieth century.
For Livingston, the condition for a non-conservative history of capitalism is a serious acceptance of pragmatism’s gamble that an experimental, testing, exploratory attitude to life and experience could be widely embraced without fear of losing valuable inheritances from the past or worrying too much about ushering in an age of monsters, freaks, and mutants.
Livingston finds evidence for this faith in “living on credit” across the disciplines. In philosophy, this was the project of James and Dewey. In economics, this was the momentous break with Say’s Law, the wages fund theory, “buying cheap and selling dear”; the overthrow of the cult of specie currency and rejection of the call to verify that the abstract tokens in circulation really corresponded to a given stock of bullion. In feminism, this was the rejection of separate spheres and the political weaponization of the wager that gender and sexuality could be unmoored from patriarchy without inviting social disaster. In African American culture, this was the glorious range of aesthetic practices based on open texts and collective improvisation. In literature, Dreiser and Sister Carrie’s problematization of “reality” and “realism.”
Building on Livingston’s argument, we might describe the pragmatist break as an epistemological revolution, with two separate implications. First, pragmatism meant the move towards a semiotic theory of meaning. In Peirce’s “pragmaticism,” philosophy advanced toward Saussure’s notion of signification as lacking any positive content, with language and aesthetic communication functioning as a network of pure difference, analyzable as binary code so long as one had first reduced the text or object to its properly atomic level of differentiation.
Working through this shift to semiosis as we did with the preceding example of the move to a credit-based epistemology: in economics this was the shift to mass production, commodification and fungibility, the division of labor and Taylorism. It was also the shift to a consumer-driven economy, the end of production for use, and hence the arrival of Simon Patten’s “pleasure economy” divorced from the satisfaction of immediate needs (which also generated a certain anxiety about entropy, questions about what all of this production was in fact for, the arrival of a popular understanding of Freud’s “death drive,” or the acknowledgement that humans are motivated by a kind of persistent aggression that made a mockery of the utilitarians’ “hedonic calculus,” the problem that James tried to solve with his “moral equivalent of war”). In feminism, the rise of semiosis was paralleled in incipient theories of gender difference as a formal division rather than an expression of real embodied maleness and femaleness, an adumbration, that is, of the theory of gender-as-construction. In African American culture, this was reflected in critical inquiry into the origins of the idea of embodied racial difference, the comic treatment of the absurdities of Jim Crow binary segregation, and skepticism towards the capacity of racial science to describe reality, especially evident in the literature on “passing.” In literature, pragmatism’s semiotic revolution is most manifest in Poe’s “Purloined Letter,” the rise of the American detective story, and the innovations of Gertrude Stein.
Pragmatism also ushered in a new attentional economy. Peirce and James were particularly interested in the nature of attention. In a cinematic vision of consciousness—which we will find is not irrelevant to Holmes’s copyright jurisprudence––that drew on nineteenth century theories of the persistence of vision and marveled at the capacity of the mind to synthesize sequential images as movement, pragmatists came to view reality as a “stream of experience” fixated in provisional forms by the subject. Film, telegraphy, piano rolls, and early phonographs all served as machinic mirrors of these new models of cognition and perception. Static elements, strung together in time, seemed to produce illusions of continuity and forward motion. Flow, flux, fixation: these metaphors shattered correspondence theories of truth and registered, as with the new embrace of living on credit and the rise of semiosis, the advent of a pragmatic understanding of attention could be felt across US culture.
James, of course, embodied this view in philosophy, echoed in the works of Henri Bergson and Hugo Munsterberg. Commodity flows, as in William Cronon’s description of the evolution of meatpacking within the circuits encircling Chicago’s stock exchange, and in the rise of mail-order stores, began to seem central to capitalism. The use of photography in scientific management also speaks to the new importance of a conceptual image system based on the analysis of flows in labor systems, and the new managerial interest in the deconstruction of seemingly fluid motions into their component parts as a means to maximize efficiency and hence productivity. In feminism, a Jamesian theory of consciousness pointed to the variability of subjectivity and the foundationlessness of patriarchal ways of seeing; it also pointed towards the analysis of social reproduction in processual terms, freed from the ideés fixes of Victorian sentimentality. In African American popular culture, the clearest manifestation of this new sense of temporal flux can be found in ragtime music’s “ragged time” and the beginnings of the cult of swing in early jazz, as well as in new dance forms like the Charleston and cakewalk that seemed to operate simultaneously in multiple temporalities, in the poetics of blues, with its cosmic time consciousness (“minutes seem like hours, hours seem like days”), appreciation of the sacred character of collective enjoyment and survival in conditions of extreme precarity, and the increasingly central imagery (and experience) of migration (as Farah Jasmine Griffin highlights in her wonderful study of African American migration narratives, Who Set You Flowin’?). In literature, of course, this was the corollary of the famous “stream of consciousness” technique that could be found in Charlotte Perkins Gilman, Henry James, Poe and Eliot, and through to the early works of the Objectivists.
With this articulation of the meaning of pragmatism in mind, we are in a good position to return to Holmes and Bleistein, and then to conclude with some questions provoked by Jacques Rancière.
 The essays in Morris Dickstein’s The Revival of Pragmatism, for example, ignore Holmes or take him up in purely formal and theoretical terms. The index to The Cambridge Companion to Pragmatism has but a single entry on Holmes, relating to his participation in the nineteenth century Metaphysical Club. James Kloppenberg barely mentions Holmes in Uncertain Victory; Louis Menand makes Holmes a central figure in The Metaphysical Club, but is interested primarily in Holmes’s reflection on his Civil War experience and his role in the intellectual debates of the immediate postbellum era. The wider literature may occasionally engage with Holmes, but primarily as the author of The Common Law. It is rare, indeed, to ever see serious engagement with a Holmes opinion (outside of the occasional reference to a particularly pithy, witty, or scandalous formulation) in the intellectual history literature on pragmatism.
 Livingston, Pragmatism and the Political Economy, 53.
 Livingston, Pragmatism and the Political Economy, 55-56.
 Livingston, Pragmatism and the Political Economy, 53-54.
 Livingston, Pragmatism and the Political Economy, 56.
 Livingston, Pragmatism and the Political Economy, 62.
 Livingston, Pragmatism and the Political Economy, 64.
 Livingston, Pragmatism and the Political Economy, 65.
 See Fredric R. Jameson, “The Symbolic Inference; Or, Kenneth Burke and Ideological Analysis,” Critical Inquiry, Vol. 4, No. 3. (Spring, 1978), 507-23.
 Kenneth Burke, Attitudes Toward History, 3rd edition (Berkeley: University of California Press, 1984 ), 4. Hayden White, Metahistory: The Historical Imagination in Nineteenth-Century Europe (Baltimore: The Johns Hopkins University Press, 1975)
 Burke, Attitudes, 5.
 On the affirmative character of pragmatism, see Louis Menand, The Metaphysical Club: A Story of Ideas in America (New York: Farrar, Straus, and Giroux, 2002), and James Kloppenberg, Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870-1920 (Oxford: Oxford University Press, 1988).
 Burke, Attitudes, 35-41.
 Burke, Attitudes, 41.
 Burke, Attitudes, 42.
 Burke, Attitudes, 94.
 Burke, Attitudes, 95. We might note parenthetically that this analysis is diametrically opposed to that of Theodor Adorno and Max Horkheimer’s Dialectic of Enlightenment (New York: Continuum, 1989).
 Burke, Attitudes, 95-96.
 Burke, Attitudes, 161
 Livingston, Pragmatism, Feminism, Democracy, 11.