Creativity and Individuality

In “Navigating Nairobi: Artists in a Workshop System,” another of the chapters of African Art and Agency in the Workshop, Jessica Gerschultz describes the entire Nairobi art scene as, in effect, a permanent floating workshop. In this system, she writes, “[a]n artist builds his or her career through contacts with other artists—who provide leads within the system and share materials, expertise, and space…. It is the reliance on this social network, and the skills gained therein, that outweighs dependency on any one institution or individual.” (221)

At first blush, all this is surprising. Aren’t artists thought to be engaged in deeply solitary exploration of their own creative resources? If that picture of creativity is accurate, then the artist’s skillful maneuvering through the many levels of the Nairobi workshop seems more likely to interfere with his or her art than to enhance it.

But I’m realizing that the idea of the artist as deeply solitary is at best misleading. The artist may indeed be drawing on deep interior sources, but that’s not all he or she draws on. If it were, we wouldn’t all recognize, indeed take for granted, the existence of artistic schools and eras. Those shared esthetics don’t arise by accident; they’re the result of artists’ encountering each other’s work, and each other. As Till Förster, another contributor (and co-editor) of this volume says, a workshop “is often the place where artists become familiar with the aesthetic perceptions and normative expectations of others—be they fellow artists, teachers, or critics.” (“Work and Workshop: The Iteration of Style and Genre in Two Workshop Settings, Côte d’Ivoire and Cameroon,” at 326). In the world of twentieth-century English literature, my father, Richard Ellmann, once wrote a book, Eminent Domain: Yeats among Wilde, Joyce, Pound, Eliot, and Auden (1967), about the ways great writers engage with each other, which begins (at 3): "'Influence' is a term which conceals and mitigates the guilty acquisitiveness of talent." 

But there can be too much of a good thing, or rather too much social communication for the fostering of creative variation. As a general proposition, it seems safe to say that the more all-encompassing one’s social environment, the more one will conform to it. So in an Egba Yoruba family workshop, described by the anthropologist Norma H. Wolff in another chapter of this volume, “the imagination that fueled creativity imposed boundaries on innovation so that iteration of the family style was predictable.” (“‘A Matter of Must’: Continuities and Change in the Adugbologe Woodcarving Workshop in Abeokuta, Nigeria,” at 310). Förster also reports, by the way, that among the Senufo of northern Côte d’Ivoire, the carvers’ community is so significantly culturally differentiated from the larger group as to reasonably be described as a “tiny ethnic group living among the farming majority.” (Förster at 330.)

In that light, the Nairobi floating workshop begins to look like a very good way to foster fresh invention. Artists there, as everywhere, exist in a social situation – but in Nairobi there may be so many groupings and subgroupings, and so much freedom to move among them, that the artist is free, in fact obliged, to find the subgrouping of his or her choice. And even then the Brownian motion of the many component parts of this scene may guarantee that change is constant.

In today’s world, “what fosters change” is almost equivalent to “what is good.” It is worth remembering, though, that the striking works of African traditional art often seem to have been the product of cultures where much of what was to be admired was the faithful reproduction of the models handed down from the past. In the world in which that art was made, creativity was not absent; perhaps it flowed more slowly from generation to generation and yet very deeply.

Two days ago the Supreme Court decided, in Association for Molecular Pathology v. Myriad Genetics, Inc. (No. 12-398, decided June 13, 2013), that human genes can’t be patented. I’m glad the Court reached this decision, mainly for the nonlegal reason that it seems wrong, and creepy, for anybody to be able to own part of the human genome.

I’m also inclined to think that what people apparently can own is enough to encourage the genetic research we hope will bring us many benefits, without the symbolic or moral problems of making our own genes patentable. The Court decides that something called “complementary DNA” (cDNA), which essentially is DNA minus those components (“nucleotides”) that don’t contribute to the production of proteins in the body, is patentable because it’s a new thing rather than the original human gene. The Court also suggests that valid “method claims” could be made for ways to solve the scientific involved in finding particular human genes (we have about 22,000 in all, according to the Court’s opinion), as well as valid “application” claims for the use of knowledge about these genes, and – the Court explicitly doesn’t rule on this one – that perhaps it would be permissible to patent genes that scientists have altered.  It’s worth adding, though, that if all of this can be owned, the symbolic force of the statement that the human genome can’t be patented is somewhat diminished.

But what strikes me most about this decision is that although it purports to be an interpretation of the patent statute, the methods of interpretation applied to the statute are quite odd. The Patent Act’s Section 101, 35 U.S.C. § 101, as quoted by Justice Thomas in his opinion for the Court, says that:

Whoever invents or discovers any new and useful … composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.

What Myriad Genetics did was to locate two genes – the BRCA1 and BRCA2 genes, which when they mutate can drastically increase women’s vulnerability to breast and ovarian cancer. There was an argument that Myriad had created a new chemical molecule consisting of just the elements of these genes, but the Court firmly rejects this argument, saying that it’s clear that what Myriad is trying to patent is not a new molecule but the identity of these genes.

Is a newly identified gene a "new and useful ... composition of matter, or any new and useful improvement thereof," as the statute requires? Arguably, yes. If matter is transformed from incomprehensible to comprehensible, one might say that it has been improved - from the point of view of us comprehenders. So, too, if a radio signal distorted by static is separated into meaningful and meaningless components, it has been "improved" - somewhat as the immense body of DNA molecular information has been broken apart so as to tease out these grimly meaningful genes. The statutory language doesn't easily fit this reading, I’d say, but it doesn't preclude it either.

But what drives the opinion isn’t, as least as the Court presents its reasoning, that kind of syntactic analysis. Rather, the Court follows its quotation from the Patent Act immediately with the observation that “we have ‘long held that this provision contains an important implicit exception[:] Laws of nature, natural phenomena, and abstract ideas are not patentable” (slip opinion at 11; emphasis added; bracketed colon in the original). I added the italics precisely to emphasize the point that this exception is not in the text.

The court then observes that this limit is itself limited, "for 'all inventions at some level embody, use, reflect, rest upon, or apply laws of nature, natural phenomena, or abstract ideas.'" So the Court sees its task as applying a "well-established standard" - the delicate balance between encouraging innovation and stifling the flow of knowledge - to determine whether Myriad has or has not created a "new and useful ... composition of matter." All this seems quite reasonable, but none of these propositions is explicitly stated in the statute.

But here's the last oddity. Having declared that the ultimate, not textually declared, issue is the proper balance between incentives to invent and freedom of information, the Court doesn't seem to undertake that weighing directly. Instead, it focuses on arguing that Myriad's discovery, which everyone agrees revealed information about the body rather than creating new physical processes or things, simply isn't a "new ... composition of matter." In contrast, cDNA, which is made based on DNA and so arguably "dictated by nature," is not the same as nature. "[I]t is distinct from the DNA from which it was derived," and therefore patentable.

I find myself rather sympathetic to Justice Scalia, who filed a very brief concurrence in the result but not the reasoning of the case. He doesn't complain about the court's seeming assertion of and then disregard for broad atextual principles. He does say, however, that the Court has waded too far into biology as a basis for decision, and that for him the case turns simply on whether what Myriad wants to patent is or is not "identical ... To the natural state." That standard one can get, pretty straightforwardly, from the text's requirement that whatever is patented be "new."

So what’s startling about this case is that it asserts that the interpretive task is defined in terms that the statute by no means spells out – a somewhat unorthodox interpretive stance in many other fields of today’s legal world, and certainly unorthodox for Justice Thomas – but then it seems to go back to the text to do the work of decision. Apparently the language the court uses to describe its role is conventional in the field of patent law (a field on which I’m no expert!). Still, it’s often observed that judges cloak their innovations in the language of orthodoxy. This case almost seems to cloak orthodoxy in the language of innovation.

Must a court order be precise? Well, no, clearly not. To name what’s probably the most prominent US example of imprecision, the Supreme Court in Brown v. Board of Education II ultimately ordered that the school segregation cases before it “be remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.” Whether "all deliberate speed" was a wisely chosen (as well as imprecise) directive has been the subject of a great deal of debate. 

But in any event it’s one thing for a court to order the implementation of a profound constitutional mandate, and another for it to order the payment of a sum of money. For the latter, we might think, precision is simply essential – so essential that if it’s not possible for the court to specify the exact amount to be paid, then the court just can’t grant a remedy in the matter at all.

South Africa’s Constitutional Court, however, has recently disagreed, though on a closely divided vote (6-4). The Court concluded, in In the matter between Kwazulu-Natal Joint LiaisonCommittee and Members of the Executive Council, Department of Education,KwaZulu-Natal and Others (decided on April 25, 2013), that the provincial government of KwaZulu-Natal, by sending a notice to private schools stating the approximate subsidies it would pay them in 2009, had made an undertaking to pay those amounts, and that after the date for that first quarterly payment of the subsidy had come and gone, it was too late for the government to revoke its commitment as to the first quarter’s amount due. (¶ 48) That in itself was quite a bold decision, since it might have been argued that the government’s initial notice was a guide to expectations but not a binding commitment.

What’s most striking, however, is that the Court agreed that the government’s commitment was not to an exact sum. Instead, the circular in question had promised a subsidy at the “approximate funding levels” it stated (bold font and underlining in the original). (¶ 3) Having decided that that promise was binding for the first quarter of the year, the Court next faced the question of exactly how much the promise promised. The court answered, and ordered, that the province was obliged to pay “the approximate amounts specified in the notice.” (¶ 78)

Justice Zondo, in dissent (¶¶ 161-80), vigorously argued that that order was unacceptably imprecise. Certainly he was right that the order was imprecise, and the Court didn’t disagree. What the Court did say was that the province was obliged to pay “the approximate amounts,” and that the province was “obliged to engage with the schools” to agree on what the approximate amounts actually would be. What if they couldn’t reach agreement? Then the schools could return to court to litigate further. (¶ 75) I imagine the Court felt quite confident that the parties in fact would not feel it worth their while to return to court to fight over some presumably small area of difference between them. Surely the Court also hoped that the process of engaging with each other over the meaning of “approximately” would help the contesting parties to bridge their differences and to work together more fruitfully in the future.

The Constitutional Court has urged parties to engage with each other in other contexts as well, in particular in the fraught conflicts over housing that are a major area of legal struggle in South Africa today. In extending that approach to the field of school funding, the Court has in effect said that precision is a notch less integral to law than it might previously have appeared. And the Court is right that not all law is precise (though some of it is), and further right that no landmark identifies the exact boundaries between the precise and imprecise elements of a legal system. Whether this particular extension of the domain of the imprecise will ultimately prove workable is something only experience will answer.

Creativity and condescension in the rebirth of Zimbabwean sculpture

Back in the world of African art, I’ve just read another fascinating chapter from African Art andAgency in the Workshop (Sidney Littlefield Kasfir & Till Förstereds., Indiana University Press 2013). This one is by Elizabeth Morton, an art curator and art historian, and is a study of “Frank McEwen and Joram Mariga: Patron and Artist in the Rhodesian Workshop School Setting, Zimbabwe.”

There’s a lot to the story she tells, and I’ll only focus on one part of it. But the broad narrative is that Frank McEwen left Europe in the 1950s because he was “disillusioned with newer trends in Western art, such as abstraction” (275), and came to Zimbabwe – Rhodesia at the time – where he sought to train artists who were more in touch with the collective unconscious than the over-schooled artists of Europe had become.

McEwen’s notions today seem only a step away from other Western fantasies of the noble savage. But in Rhodesia at that time, the opportunity he offered to African artists was evidently unique and attractive, and for offering it McEwen was reviled by most Rhodesian whites. Moreover, McEwen was apparently a tremendously effective operator in the international art world. And he fostered Zimbabwean art. It seems fair to say that there was no extant tradition of Zimbabwean sculpture when McEwen arrived. McEwen played a crucial role in helping African artists (among them, Joram Mariga, the other person named in the title of Morton’s chapter, and the person who actually rediscovered Rhodesia’s deposits of soapstone, which became a primary medium for the new sculptors) to invent this tradition. Within 15 years of his arrival in Rhodesia, McEwen had “mount[ed] … triumphal sculpture-only exhibitions at MoMA (1968), the Musée d’art modern in Paris (1970), and the Rodin Museum (1971).” (282-83)

Morton writes that “[i]n his catalogs and publicity for these successful shows McEwen asserted that the sculpture dealt largely with the supernatural and that it could be explained primarily in Jungian terms.” (283) One might think, at this point, that McEwen’s notions amounted to a harmless overlay on a creative movement that proceeded freely because of his help and despite his characterizations. But that isn’t true, particularly in one very important respect. McEwen, who had worked closely with the sculptor Joram Mariga, betrayed him (the word “betray” is Morton’s, and appears just). Morton thinks the fundamental reason was that Mariga, who was both a Christian and the child of a traditional healer, was “a didactic, forceful intellectual” who could have “disrupt[ed] the flow of the supernatural and mystical carvings that were becoming increasingly lucrative.” (287) Mariga’s career was blighted for almost two decades, though happily it eventually recovered, and he ultimately forgave McEwen as well.

Given how seriously McEwen pursued his notions of African art, we might now think that McEwen would have blighted careers in another way – by denying admission to his world (and, more specifically, admission to the Workshop School at McEwen’s Rhodesian National Gallery, though as a site of regular classes the Workshop only lasted till 1964) to those who had the taint of formal art training. In fact he tried to do exactly that. Morton writes: “His preference was for illiterate, pagan Africans untainted by exposure to Western schooling or religion and who were potentially capable of expressing the collective unconscious. As a result, he tried hard to keep trained artists out of his workshop.” (276)

But he failed. The African artist whom McEwen “entrusted … to act as the workshop’s gatekeeper,” a man named Thomas Mukarobgwa, had himself “been taught to paint by a local missionary.” (276) With Mukarobgwa playing this role, “[t]he end result … was not the exclusion of mission-trained artists from McEwen’s workshop. Instead, they simply hid the facts from him.” (276-77) So McEwen’s fantasies were undercut by the very person he relied upon to implement them.

One can’t help but feel that justice was served – both in Mariga’s eventual return to international art success and in Mukarobgwa’s subversion of McEwen’s patronizing admission rules. But it seems, at the same time, that McEwen was a tremendously powerful and positive force in the development of what’s now Zimbabwean sculpture. The artists and the patron were interconnected in ways that aren’t easily summed up as all good or all bad, all agency or all domination.

Perhaps the clearest lesson is that people given the chance to work creatively will do so, despite whatever obstacles or presuppositions may still constrain them.

Law school clinics and American law, continued

Just a note: I'm in the process of keeping a tally of all Supreme Court cases from the 2012-13 term (the one that's coming to an end in the next few weeks) in which a law school clinic helped represent one of the parties to the case. I'm also going to start listing Supreme Court cases in which clinics contributed to amicus curiae (friend of the court) briefs.

All of these will be listed here, in a gradually expanding version of my original post on this subject. But from time to time I'll add new posts like this one, just to report that new cases have been added to the list.

So far, by the way, I know of 5 cases from this term in which clinics represented a party. Two of them, remarkably, are from a single clinic, the Stanford Law School Supreme Court Litigation Clinic, whose record for wins is 2 for 2! 5 cases may not seem like a huge number, but the Supreme Court, according to its FAQ page, "grants and hears oral arguments in about 75-80 cases" a year -- so 5 cases is actually about 6 % of all the cases the Supreme Court will have given its fullest consideration to during this entire term.  

UPDATE: My count is now 6 cases, three of them from the Stanford Law School Supreme Court Litigation Clinic, whose record overall is 2 for 3. For the latest addition to the list, see the link above.