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While the ontological state of Black social death is an important concept for resistance scholars to understand, the typical advocacy of complete societal pessimism in response to that ontological arrangement is incomplete at best. Many in Afro-Pessimism use the basis of social death to determine the question of Black political orientation in a way that is problematic. This is not to say that social death theorization is not important, but that there is a vital distinction that needs to be made both in terms of its application toward traditional political processes and ensembles of Blackness. Frank Wilderson, Associated Professor of African-American Studies and Drama at the University of California-Irvine, is quite possibly the leading Afro-Pessimist scholar. He concludes his discussion of social death by advocating for one to “embrace its disorder, its incoherence, and allow oneself to be elabo­rated by it if, indeed, ones politics are to be underwritten by a desire to take down this country” (2007). In summary, his application of social death is used as a reason why Black life cannot be oriented at any level of meaningful production within society. While Wilderson is correct that the material labor and symbolic currency born out of Blackness will always be consumed by whiteness, his conclusion is paradoxical at some level. If humanism is the grammar by which civil society determines the register of subjectivity, why then is that matrix appropriate in determining the state of Black life, if Black life is inherently the position of what is incommunicable? If social death theory’s application is one that concludes an impossibility of meaningful Black productivity, then Afro-Pessimism becomes nothing but a body of literature that echoes the same sentiments as those who would understand Black life as a state of nothingness in plain racist terms. Understanding Black ontology should definitely involve an understanding of the social deadness of the Black subject in relation to society, but it should not be used as the standard to measure internal liberation. The distinction here is important because too often Afro-Pessimists scholars like Wilderson conceptualize Black resistance as a singular orientation toward society. Indeed their work is important to understand the manner in which society operates upon Black subjects, but it is insufficient to describe an ethic that allows for the pursuit of meaning within Blackness itself. In this regard, scholars should understand Black resistance as occurring on two different levels: the ontological and the intra-ontological. The distinction being made is between the ontological state of Blackness as determined outside of humanity proper versus the life within the ontological state of Blackness as understood through social death. If social death is the state of the Black, what then speaks to the state of the Black amongst Blacks? It would be a mistake on the part of any scholar to concern themselves with one and not the other. This paper uses the term intra-ontology in reference to the varying ontologies within social death. This is the Black among Blacks. These are those spaces within Blackness that only the Black can ever understand or occupy. Though they exist outside of the production of the human (within the category of social death), there are Black affektual politics that have been with the slave since the ship. These are the emotional and spiritual ontologies within Blackness that connected slaves of different lands, languages, and religions into one community. Black intra-ontology can never achieve the plane of recognition because it can only be understood within Blackness, which by definition is the position of social death, but those affektual spirits and emotions ought not be neglected. Social death should guide Black resistance strategy in understanding the position of the Black within civil society, but it speaks not to the arrangement of Black intra-ontological questions. If this is measured by social death it only produces a cycle of endless internal psychic violence because the Black would only be met with the discovery of a violent reality of its existence through affirmations of social death. Intra-ontological resistance must not be a question of how the world understands Blackness, because the position of the slave is one that cannot be articulated in terms of hegemony. If it is so that the Black inherently experiences the world through a different ontological register, then measures of Black liberation cannot be articulated through the lens of humanist grammars. Jared Sexton, the Director of the African-American Studies School of Humanities at the University of California-Irvine, is another leading scholar in Afro-pessimism. He explains that there is indeed social life that exists within social death. There are many that condemn the invocation of social death as overly pessimistic, but “this acceptance or affirmation is active; it is a willing or willingness, in other words, to pay whatever social costs accrue to being black, to inhabiting blackness, to living a black social life under the shadow of social death. This is not an accommodation to the dictates of the antiblack world” (Sexton 2010). This is to say that it is indeed possible to both affirm the state of social death and actively pursue the social life that exists within Blackness. This is not the typical critique of social death, but rather it is a necessary specification of the social life within social death that Sexton speaks. Social death is adequate in terms of measuring the ontological state of the human versus the Black, but a different rubric is required in mapping social life within social death. One such rubric is fleshly politics. This concepts derives from the plantation in regards to the manner in which slaves would temporarily reclaim and weaponize their bodies as a site of political protest against their state of enslavement. Fleshy politics is an example of an appropriate rubric for measuring liberation within intra-ontological politics because these bodily resistances surely did not change the physical state of enslavement, but it did immeasurable good for the mental and psychological state of those in the master’s cage. Alternate orientations to the flesh “excavates the social (after)life of these categories: it represents racializing assemblages of subjection that can never annihilate the lines of flight, freedom dreams, practices of liberation, and possibilities of other worlds” (Weheliye 2014). In contrast to Wilderson’s line of flight away from bodily coding, it is important to reclaim the atrocity of the flesh as a means of agency within capture through the remapping of whiteness. The enslaved female flesh was the site of great violence, but there is a false “dichotomy between the material/political and the personal, in large measure [because even though the] body, so deeply personal, is also a political arena. Their work has demonstrated the extent to which women's bodies were unique sites of domination under slavery” (Camp 2002). Though the body was in the possession of the slave master, the enslaved found personal meaning in its temporary recapture in fleshliness which satisfied an innate desire for selfhood. The illegality of using the flesh as a site of pleasure became a political counter-investment. While conventional Afro-Pessimist would argue that this personal orientation does nothing in terms of the ontological position within Blackness, the personal victory the enslaved experiences as a result of that temporary reclamation is meaningful in both psychological and emotional terms. This is important because if there is never room for personal liberation, and Black resistance is only understood in terms of material questions within civil society, it reproduces the same sacrificial logic that social death explains. Resistance strategies that only take meaning in notions of full agency are recipes for failure because these only measure Black liberation on the register of civil society which can never grapple with the inherent confine in which Black life exists. To take the conclusion of the previous section and use the call from intra-ontological liberation as a justification for the ontological state of Blackness would be a violent imposition of whiteness. The arrangement of Blackness as an ontological question versus Blackness as an intra-ontological question is a criminalization of Black thought. The two are not mutually exclusive, nor should one be viewed as a sufficient substitute for the other. Instead, they are complimentary; they are necessary components to the assemblage of Black resistance strategy. While the importance of a conception of personal liberation is addressed above, the ontological position of Blackness within civil society is a dilemma that must be also be carefully addressed. There is a needed balance between the two because one measure can easily violate the other. At no point should the ontological state of Blackness within social death must not be affirmed in pursuit of intra-ontological freedom. This topic is one of great complexity. If the Black isolates a subject position that is not a subject position, is political liberation possible? This is where the theorization of social death should primarily direct Black political strategy as understood through the lens of conventional Afro-Pessimism.

“To the university I’ll steal, and there I’ll steal,” to borrow from Pistol at the end of Henry V, as he would surely borrow from us. This is the only possible relationship to the American university today. This may be true of universities everywhere. It may have to be true of the university in general. But certainly, this much is true in the United States: it cannot be denied that the university is a place of refuge, and it cannot be accepted that the university is a place of enlightenment. In the face of these conditions one can only sneak into the university and steal what one can. To abuse its hospitality, to spite its mission, to join its refugee colony, its gypsy encampment, to be in but not of – this is the path of the subversive intellectual in the modern university. Worry about the university. This is the injunction today in the United States, one with a long history. Call for its restoration like Harold Bloom or Stanley Fish or Gerald Graff. Call for its reform like Derek Bok or Bill Readings or Cary Nelson. Call out to it as it calls to you. But for the subversive intellectual, all of this goes on upstairs, in polite company, among the rational men. After all, the subversive intellectual came under false pretenses, with bad documents, out of love. Her labor is as necessary as it is unwelcome. The university needs what she bears but cannot bear what she brings. And on top of all that, she disappears. She disappears into the underground, the downlow lowdown maroon community of the university, into the undercommons of enlightenment, where the work gets done, where the work gets subverted, where the revolution is still black, still strong. What is that work and what is its social capacity for both reproducing the university and producing fugitivity? If one were to say teaching, one would be performing the work of the university. Teaching is merely a profession and an operation of that onto-/auto-encyclopedic circle of the state” that Jacques Derrida calls the Universitas. But it is useful to invoke this operation to glimpse the hole in the fence where labor enters, to glimpse its hiring hall, its night quarters. The university needs teaching labor, despite itself, or as itself, self-identical with and thereby erased by it. It is not teaching that holds this social capacity, but something that produces the not visible other side of teaching, a thinking through the skin of teaching toward a collective orientation to the knowledge object as future project, and a commitment to what we want to call the prophetic organization. But it is teaching that brings us in. Before there are grants, research, conferences, books, and journals there is the experience of being taught and of teaching. Before the research post with no teaching, before the graduate students to mark the exams, before the string of sabbaticals, before the permanent reduction in teaching load, the appointment to run the Center, the consignment of pedagogy to a discipline called education, before the course designed to be a new book, teaching happened. The moment of teaching for food is therefore often mistakenly taken to be a stage, as if eventually one should not teach for food. If the stage persists, there is a social pathology in the university. But if the teaching is successfully passed on, the stage is surpassed, and teaching is consigned to those who are known to remain in the stage, the sociopathological labor of the university. Kant interestingly calls such a stage “self-incurred minority.” He tries to contrast it with having the “determination and courage to use one’s intelligence without being guided by another.” “Have the courage to use your own intelligence.” But what would it mean if teaching or rather what we might call “the beyond of teaching” is precisely what one is asked to get beyond, to stop taking sustenance? And what of those minorities who refuse, the tribe of moles who will not come back from beyond (that which is beyond “the beyond of teaching”), as if they will not be subjects, as if they want to think as objects, as minority? Certainly, the perfect subjects of communication, those successfully beyond teaching, will see them as waste. But their collective labor will always call into question who truly is taking the orders of the enlightenment. The waste lives for those moments beyond teaching when you give away the unexpected beautiful phrase – unexpected, no one has asked, beautiful, it will never come back. Is being the biopower of the enlightenment truly better than this? Perhaps the biopower of the enlightenment knows this, or perhaps it is just reacting to the objecthood of this labor as it must. But even as it depends on these moles, these refugees, it will call them uncollegial, impractical, naive, unprofessional. And one may be given one last chance to be pragmatic – why steal when one can have it all, they will ask. But if one hides from this interpellation, neither agrees nor disagrees but goes with hands full into the underground of the university, into the Undercommons – this will be regarded as theft, as a criminal act. And it is at the same time, the only possible act. In that undercommons of the university one can see that it is not a matter of teaching versus research or even the beyond of teaching versus the individualisation of research. To enter this space is to inhabit the ruptural and enraptured disclosure of the commons that fugitive enlightenment enacts, the criminal, matricidal, queer, in the cistern, on the stroll of the stolen life, the life stolen by enlightenment and stolen back, where the commons give refuge, where the refuge gives commons. What the beyond of teaching is really about is not finishing oneself, not passing, not completing; it’s about allowing subjectivity to be unlawfully overcome by others, a radical passion and passivity such that one becomes unfit for subjection, because one does not possess the kind of agency that can hold the regulatory forces of subjecthood, and one cannot initiate the auto-interpellative torque that biopower subjection requires and rewards. It is not so much the teaching as it is the prophecy in the organization of the act of teaching. The prophecy that predicts its own organization and has therefore passed, as commons, and the prophecy that exceeds its own organization and therefore as yet can only be organized. Against the prophetic organization of the undercommons is arrayed its own deadening labor for the university, and beyond that, the negligence of professionalization, and the professionalization of the critical academic. The undercommons is therefore always an unsafe neighborhood.

While the ABB would soon be absorbed by the CPUSA, as of 1919 its program still represented the blend of black nationalism, anticolonialism, and economic radicalism that marks the classic black synthesis of the third path. Note that the African Blood Brotherhood’s program and synthetic ideology predates Du Bois and other mid-twentieth-century black radical leftists. They, along with Hubert Harrison and the Liberty League, were early pioneers in developing the third path. Like the Liberty League, which in its “Declaration of Princi- ples” called for “the securing of absolutely equal rights” (Perry 2009, 291), the ABB emphasized at the beginning of its program the need for both black liberation (“a liberated race”) and full equality (“absolute race equality”). In Briggs’s view black libera- tion was the only feasible alternative, especially at a time when the social democrats of the Socialist Party had abandoned their work on race and had a leadership who swore to maintain, in their own words, “white supremacy.” As Solomon argues, Briggs was also deeply committed to the principle of self-determination for peoples of African descent. Like Garvey, he believed that Africans, both in Africa and throughout the diaspora, had not only the right but the duty to govern themselves (Solomon 1997). Briggs was suspicious of the Socialist Party and more generally of the social democracy of the Second International; as late as 1921 the ABB still was promoting a program that had elements of black national- ism even as the organization’s leadership was moving closer to the representatives of Lenin’s revolution within the United States (Solomon 1997). Eventually Briggs joined the Communist Party for reasons similar to Haywood’s. As Briggs himself put it: “I en- tered simply because the party had a program, even [though] not written, . . . on the Negro field; because of the solution of the na- tional question in the Soviet Union, and because I was confident that the American party in time would take its lead on that ques- tion from its Soviet party, which is what it eventually did” (Dawson 2001, 182). A significant aspect of Briggs’s comment, one borne out by the historical record, is his lack of confidence in the Ameri- can communists. He knew well that American socialism, whether of the Socialist Party type or the Leninist variety, was at best skep- tical of how important the struggle for racial justice, let alone black liberation, would be to radical organizing in the United States. Briggs was counting on the international communist movement to force the American party to treat blacks’ struggle as one with revo- lutionary potential in its own right. As noted earlier, during this period some of the most savage pogroms ever launched were directed against black communities. Many blacks were extraordinarily angry—including black veter- ans of World War I—and were at a point at which militant action seemed preferable to doing nothing. Blacks were also looking for an organizational base and allies. The only two games in town for black radicals (besides the small ABB) were the CPUSA and Gar- vey’s UNIA. As would happen to a later generation, many of these early and critical black Marxists eventually would be pushed out of the organizational mainstream of the left precisely because of their views on black liberation and the national question, and spe- cifically their belief that the black struggle represented a revolu- tionary effort in its own right. Richard Rorty argued, “The Communist Party of the United States (CPUSA) was of very little importance to the political life of our country” (Rorty 1998, 44). That is certainly a plausible argument for American politics as a whole from 1930 on, but it does not capture the reality of black politics between the 1920s and 1940—until the CPUSA decided to sacrifice much of its good- will among African Americans and its hard-won gains to the Soviet- mandated false unity that emphasized working with racist and liberal whites who were offended by the occasionally racially militant practices of the CPUSA. Even though black leftists were increasingly at odds with the party over its stance toward orga- nizing blacks, the CPUSA remained the main organizational form that black leftists worked within during this period. While not the only Marxist influence on black radicalism, the CPUSA did have hegemonic organizational influence on the black left before World War II. The third path was not followed, and the Socialist Party (and social democrats more generally) provided little real competition for black support even during the early years of the CPUSA. Communist Party work among blacks had stagnated during the 1920s due to the CPUSA’s white-dominated leadership crack-ing down on organizing aimed at blacks. The dominant faction of the white leadership furiously opposed special status for Afri- can Americans or work among African Americans. Many in the leadership did not see the black movement as central to leftist or- ganizing, let alone as a revolutionary movement in its own right. Black cadres argued about the best way to raise the prominence of work among blacks, with Haywood and Briggs embracing a “black nation” thesis, and others, including Haywood’s brother, disagreeing. In 1922 black communists were attacked by the head of the Workers Party (the CPUSA’s precursor) for protesting separate seating for black delegates to a Farmer-Labor Party con- vention in Chicago. Indeed, some Virginia blacks were purged for lacking the “qualifications” to be communists—they were consid- ered too petty bourgeois, since they kept raising the question of racism within working-class organizations and meetings, and there- fore were guilty of dividing the working class. It was even rec- ommended that the entire “colored branch be dismissed” (Harris 1989, 148). As early as 1924, just as the party was taking its mod- ern form, the main leadership faction refused to publicly demand that its members support full equality for blacks within the labor movement (Solomon 1997). Further, the Harlem branch was con- sidered to be a den of nationalists—much the way the Socialist Party’s Harlem branch had been viewed by its leadership. Not surprisingly, given this view of the black struggle and suspicion of at least some of the leading black cadres, black cadres’ advice about how to organize the American Negro Labor Congress—particularly their advice that whites should not play the leading organizing role—was ignored. The result was the disaster that the black cad- res had predicted, because blacks were suspicious toward whites after the great wave of antiblack pogroms that occurred between 1919 and 1923 and were understandably reluctant to join an orga- nization dominated by whites. Finally, the dominant faction, led by Jay Lovestone, rejected organizing in the South—where the great majority of African Americans still resided—labeling the region as backward and not fit for organizing (Solomon 1997). Before 1923 there was a seemingly viable and vibrant nationalist alternative in the Universal Negro Improvement Association, but after the decline of the Garvey movement organizational options for black radicals were limited throughout much of the 1920s. By the late 1920s, however, black cadres in Moscow working with the Communist International, the Comintern, were able to win a mandate for a resolution on a black nation. Ironically, the first version of the resolution, in 1928, was close to the formula- tions of many black-power-era groups such as the Black Panthers, as well as individuals such as Malcolm X. It called for support for self-determination for African Americans—the ability for blacks to be able to collectively determine their political relationship to the United States–without necessarily arguing for the existence of a black nation. The 1932 resolution was much closer to the posi- tion eventually embraced by hard-core black nationalists such as the Nation of Islam and black-power-era groups such as the Republic of New Africa, which specified a black nation based in the South.

Over at The Atlantic, Ta-Nehisi Coates has been exploring the intersection of race and public policy, with a focus on white supremacy as a driving force in political decisions at all levels of government. This has led him to two conclusions: First, that anti-black racism as we understand it is a creation of explicit policy choices—the decision to exclude, marginalize, and stigmatize Africans and their descendants has as much to do with racial prejudice as does any intrinsic tribalism. And second, that it's possible to dismantle this prejudice using public policy. Here is Coates in his own words: Last night I had the luxury of sitting and talking with the brilliant historian Barbara Fields. One point she makes that very few Americans understand is that racism is a creation. You read Edmund Morgan’s work and actually see racism being inscribed in the law and the country changing as a result. If we accept that racism is a creation, then we must then accept that it can be destroyed. And if we accept that it can be destroyed, we must then accept that it can be destroyed by us and that it likely must be destroyed by methods kin to creation. Racism was created by policy. It will likely only be ultimately destroyed by policy. Over at his blog, Andrew Sullivan offers a reply: I don’t believe the law created racism any more than it can create lust or greed or envy or hatred. It can encourage or mitigate these profound aspects of human psychology – it can create racist structures as in the Jim Crow South or Greater Israel. But it can no more end these things that it can create them. A complementary strategy is finding ways for the targets of such hatred to become inured to them, to let the slurs sting less until they sting not at all. Not easy. But a more manageable goal than TNC’s utopianism. I can appreciate the point Sullivan is making, but I'm not sure it's relevant to Coates' argument. It is absolutely true that "Group loyalty is deep in our DNA," as Sullivan writes. And if you define racism as an overly aggressive form of group loyalty—basically just prejudice—then Sullivan is right to throw water on the idea that the law can "create racism any more than it can create lust or greed or envy or hatred." But Coates is making a more precise claim: That there's nothing natural about the black/white divide that has defined American history. White Europeans had contact with black Africans well before the trans-Atlantic slave trade without the emergence of an anti-black racism. It took particular choices made by particular people—in this case, plantation owners in colonial Virginia—to make black skin a stigma, to make the "one drop rule" a defining feature of American life for more than a hundred years. By enslaving African indentured servants and allowing their white counterparts a chance for upward mobility, colonial landowners began the process that would make white supremacy the ideology of America. The position of slavery generated a stigma that then justified continued enslavement—blacks are lowly, therefore we must keep them as slaves. Slavery (and later, Jim Crow) wasn't built to reflect racism as much as it was built in tandem with it. And later policy, in the late 19th and 20th centuries, further entrenched white supremacist attitudes. Block black people from owning homes, and they're forced to reside in crowded slums. Onlookers then use the reality of slums to deny homeownership to blacks, under the view that they're unfit for suburbs. In other words, create a prohibition preventing a marginalized group from engaging in socially sanctioned behavior—owning a home, getting married—and then blame them for the adverse consequences. Indeed, in arguing for gay marriage and responding to conservative critics, Sullivan has taken note of this exact dynamic. Here he is twelve years ago, in a column for The New Republic that builds on earlier ideas: Gay men--not because they're gay but because they are men in an all-male subculture--are almost certainly more sexually active with more partners than most straight men. (Straight men would be far more promiscuous, I think, if they could get away with it the way gay guys can.) Many gay men value this sexual freedom more than the stresses and strains of monogamous marriage (and I don't blame them). But this is not true of all gay men. Many actually yearn for social stability, for anchors for their relationships, for the family support and financial security that come with marriage. To deny this is surely to engage in the "soft bigotry of low expectations." They may be a minority at the moment. But with legal marriage, their numbers would surely grow. And they would function as emblems in gay culture of a sexual life linked to stability and love. [Emphasis added] What else is this but a variation on Coates' core argument, that society can create stigmas by using law to force particular kinds of behavior? Insofar as gay men were viewed as unusually promiscuous, it almost certainly had something to do with the fact that society refused to recognize their humanity and sanction their relationships. The absence of any institution to mediate love and desire encouraged behavior that led this same culture to say "these people are too degenerate to participate in this institution." If the prohibition against gay marriage helped create an anti-gay stigma, then lifting it—as we've seen over the last decade—has helped destroy it. There's no reason racism can't work the same way.

As a result, there is a growing realization that, without tangible alternativity, critical theory risks losing its normative impetus and its ethical and emancipatory commitment, potentially becoming a post-epistemological vocation without politics. Critical knowledge without a dose of alternativity may examine the causes and consequences of subject matters but could fall short of reaching out to the wider policy community and the affected subjects where power relations reside, thus missing the opportunity to transform the structural, discursive, and performative practices that reproduce violence, inequality, and injustice on human and nonhuman ecology. To bridge this epistemological gap, the analysis in the second part of this article examined how alternativity features in peace and conflict studies, a disciplinary field known for adding normative, empirical, and practical substance to critical IR debates. The analysis offered a conceptual scoping of three modes of critique and alternativity in peace and conflict studies. The three modes of critique showed that a conjunction between criticality and alternativity is possible and that it is necessary to renew the practical and emancipatory potential of critical theory in IR. The three modes of alternativity in peace and conflict studies expose a spectrum of different critiques, ranging from those perspectives that disengage completely from conceptual and empirical alternatives, to more pragmatic and prescriptive approaches.

Critique-without-alternative represents one strand, which tends to avoid offering normative and practical alternatives to their critical reflections aimed at maintaining the conservative and radical impetus of critical theory and dissociating from problem-solving and policy-relevant methods of inquiry. This mode of critique is committed to revealing the weaknesses of peacebuilding interventions but refuses to offer any emancipatory and practical alternative on how to build sustainable peace after violent conflict. If the end goal of critical perspectives is achieving emancipation, then critique should not only be directed toward problematizing dominant discourses, practices, and policies but also needs to envisage political and practical alternatives rooted in ideational and material elements. In turn, the lack of an explicit emancipatory agenda limits their social and political impact and unintentionally validates the existing order. In response to this challenge, a new mode of critique has emerged, namely, critique-as-alternative, which exemplifies the optimal approach. Proponents of critique-as-alternative have remained committee to critical analysis, but most importantly, they have taken up the challenge of offering emancipatory knowledge that has practical relevance for vulnerable societies in global politics. Their main flaw, however, has been their inability to elaborate sufficiently their practical and emancipatory alternatives—a flaw that has opened up space for epistemic contestation and policy co-optation. Finally, the third mode of critique—critique-with-alternative—which is embedded in a positivist, problem-solving, and policy-driven logic of inquiry, offers alternatives that seek either to verify existing knowledge and the existing interventionary order or to reject other critical alternatives.

While private property is treated as a personal right and has been recognized, in different forms, for millennia, intellectual property is a much more recent legal creation, whose existence is justified by a set of arguments that ultimately hinge on the balance. This is not the balance with empty pans held by Lady Justice, but a balance whose contents are dictated by the specific goals and justification of the law: balancing the interests of inventors with those of the public. Far from being construed metaphorically, this is a balance that ought to weigh evidence to find a just equilibrium. Should we think of it as a kind of instrument? And, if so, can it perform the balancing act that the law expects and requires?

The works of authors and inventors are of an unusual nature. The economists call them “public goods,” goods that are expensive to make but easy to copy, making them unlikely to be produced under normal market conditions unless special measures are introduced to make their copying illegal. Intellectual property law provides that. At the same time, while inventions and works of authorship are easy to appropriate, their appropriation, unlike theft, does not produce a loss of the original. Consequently, the law does not give inventors the same rights in their innovations that landowners have in their estates. As indicated by the limited length of patent and copyright protection, authors and inventors “own” their work in a significantly qualified sense, and to an extent that is limited by the opposing rights of the public. In Thomas Jefferson’s words: “[I]nventions […] cannot in nature be a subject of property. Society may give an exclusive right to the profits arising from them as an encouragement to men to pursue ideas which may produce utility. But this may, or may not be done, according to the will and convenience of the society, without claim or complaint from any body.”

In even stronger terms, Raymond Williams challenged the class-based arrogance of scriptocentrism, pointing to the “error” and “delusion” of “highly educated” people who are “so driven in on their reading” that “they fail to notice that there are other forms of skilled, intelligent, creative activity” such as “theatre” and “active politics.” This error “resembles that of the narrow reformer who supposes that farm labourers and village craftsmen were once uneducated, merely because they could not read.” He argued that “the contempt” for performance and practical activity, “which is always latent in the highly literate, is a mark of the observer’s limits, not those of the activities themselves” ([1958] 1983:309). Williams critiqued scholars for limiting their sources to written materials; I agree with Burke that scholarship is so skewed toward texts that even when researchers do attend to extralinguistic human action and embodied events they construe them as texts to be read. According to de Certeau, this scriptocentrism is a hallmark of Western imperialism. Posted above the gates of modernity, this sign: “‘Here only what is written is understood.’ Such is the internal law of that which has constituted itself as ‘Western’ [and ‘white’]” (1984:161). Only middle-class academics could blithely assume that all the world is a text because reading and writing are central to their everyday lives and occupational security. For many people throughout the world, however, particularly subaltern groups, texts are often inaccessible, or threatening, charged with the regulatory powers of the state. More often than not, subordinate people experience texts and the bureaucracy of literacy as instruments of control and displacement, e.g., green cards, passports, arrest warrants, deportation orders—what de Certeau calls “intextuation”: “Every power, including the power of law, is written Ž rst of all on the backs of its subjects” (1984:140). Among the most oppressed people in the United States today are the “undocumented” immigrants, the so-called “illegal aliens,” known in the vernacular as the people “sin papeles,” the people without papers, indocumentado/as. They are illegal because they are not legible, they trouble “the writing machine of the law” (de Certeau 1984:141). The hegemony of textualism needs to be exposed and undermined. Transcription is not a transparent or politically innocent model for conceptualizing or engaging the world. The root metaphor of the text underpins the supremacy of Western knowledge systems by erasing the vast realm of human knowledge and meaningful action that is unlettered, “a history of the tacit and the habitual” (Jackson 2000:29). In their multivolume historical ethnography of colonialism/ evangelism in South Africa, John and Jean Comaroff pay careful attention to the way Tswana people argued with their white interlocutors “both verbally and nonverbally” (1997:47; see also 1991). They excavate spaces of agency and struggle from everyday performance practices—clothing, gardening, healing, trading, worshipping, architecture, and homemaking—to reveal an impressive repertoire of conscious, creative, critical, contrapuntal responses to the imperialist project that exceeded the verbal. The Comaroffs intervene in an academically fashionable textual fundamentalism and fetish of the (verbal) archive where “text—a sad proxy for life—becomes all” (1992:26). “In this day and age,” they ask, “do we still have to remind ourselves that many of the players on any historical stage cannot speak at all? Or, under greater or lesser duress, opt not to do so” (1997:48; see also Scott 1990)? There are many ethnographic examples of how nonelite people recognize the opacity of the text and critique its dense occlusions and implications in historical processes of political economic privilege and systematic exclusion. In Belize, for 148 Dwight Conquergood example, Garifuna people, an African-descended minority group, use the word gapencillitin, which means “people with pencil,” to refer to middle- and upperclass members of the professional-managerial class, elites who approach life from an intellectual perspective. They use the word mapencillitin, literally “people without pencil,” to refer to rural and working-class people, “real folks” who approach life from a practitioner’s point of view.2 What is interesting about the Garifuna example is that class stratiŽ cation, related to differential knowledges, is articulated in terms of access to literacy. The pencil draws the line between the haves and the have-nots. For Garifuna people, the pencil is not a neutral instrument; it functions metonymically as the operative technology of a complex political econ- omy of knowledge, power, and the exclusions upon which privilege is based. In his study of the oppositional politics of black musical performance, Paul Gilroy argues that critical scholars need to move beyond this “idea and ideology of the text and of textuality as a mode of communicative practice which provides a model for all other forms of cognitive exchange and social interaction” (1994:77). Oppressed people everywhere must watch their backs, cover their tracks, suck up their feelings, and veil their meanings. The state of emergency under which many people live demands that we pay attention to messages that are coded and encrypted; to indirect, nonverbal, and extralinguistic modes of communication where subversive meanings and utopian yearnings can be sheltered and shielded from surveillance.

maxims of political morality, which derive whatever strength they possess from being formally inscribed in the constitution, and from the resulting support of public opinion.”3 Even if courts are not empowered to protect them (and, indeed, even if courts are so empowered), constitutionally entrenched human rights – qua “maxims of political morality” – can serve as shared, fundamental grounds of political-moral judgment in a political community.4 Nonetheless, contemporary liberal democracies typically empower their courts to protect constitutionally entrenched human rights.5 Is it appropriate – is it a good idea, all things considered – for liberal democracies to do so?6 I have argued elsewhere that the answer is yes; there is no need to rehearse my argument here.7 The more serious – and more difficult – question is this: How great should the courts’ power to protect constitutionally entrenched human rights be; in particular, should it be the power to have the last word when the courts conclude that the law in question violates an entrenched human right (the last word, that is, short of an extremely improbable event: a successful, supermajoritarian effort to amend or repeal the entrenched provision on which the court based its decision)? I have argued elsewhere that the courts’ power should not be so great; the judicial power to protect constitutionally entrenched human rights should be the power of judicial “penultimacy,” not the power of judicial “ultimacy”: the power to have, not the last word, but only the penultimate word – for example, a word that may be overruled by ordinary legislation.8 Canada, in 1982, and the United Kingdom, in 1998, each opted for a system (each for a different system) of judicial penultimacy.9 In the United States, however, the Supreme Court exercises the power of judicial ultimacy: No state legislature, nor even Congress, may overrule by ordinary legislation a decision by the Court that a law is unconstitutional; such a decision may be overruled only (later) by the Court itself or by extraordinary, supermajoritarian lawmaking, in the form of constitutional amendment.10 This important question therefore arises: Given that the Supreme Court of the United States exercises the power of judicial ultimacy, should the Court, in protecting constitutionally entrenched human rights, exercise the power deferentially? That is, in a case in which it is claimed that a law violates a constitutionally entrenched human right, should the Supreme Court inquire merely whether the counterclaim that the law does not violate the right is reasonable – and if the Court answers yes, uphold the law? Or, instead, should the Court exercise its power nondeferentially; should it determine for itself whether the law violates the right – and if it answers yes, strike down the law? A claim that a law does not violate a right is reasonable if rational, well-informed, and thoughtful persons could affirm the claim. As James Bradley Thayer put it: “The reasonable doubt... of which our judges speak is that reasonable doubt which lingers in the mind of a competent and duly instructed person who has carefully applied his faculties to the question. The rationally permissible opinion of which we have been talking is the opinion reasonably allowable to such a person as this.”11 The choice here is best understood as a choice between two different judicial attitudes or orientations. For a judge to adopt a deferential attitude – for her to be oriented deferentially – is for her to be prepared to rule that a challenged law does not violate a constitutionally entrenched human right if the claim that the law does not violate the right is reasonable.12 By contrast, for a judge to adopt a nondeferential attitude is for her to be prepared to rule that a challenged law violates a human right if in the judge’s own view the law violates the right – even if the claim that the law does not violate the right is reasonable. The most famous and influential argument for the sort of judicial deference I have in mind was made by James Bradley Thayer in the final decade of the nineteenth century, in an essay in the Harvard Law Review: “The Origin and Scope of the American Doctrine of Constitutional Law.”13 Even now, in the first decade of the twenty-first century, Thayer’s essay remains the locus classicus of the argument that in the exercise of their great power to protect constitutional norms, the courts – including the Supreme Court – should proceed deferentially: [The court] can only disregard the [challenged] Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one – so clear that it is not open to rational question. That is the standard of duty to which the courts bring legislative Acts; that is the test which they apply – not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the constitution has charged with the duty of making it. This rule recognizes that, having regard to the great, complex, ever unfolding exigencies of government, much which will seem unconstitutional to one man, or body of men, may reasonably not seem so to another; that the constitution often admits of different interpretations; that there is often a range of choice and judgment; that in such cases the constitution does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and that whatever choice is rational is constitutional.14

It’s Supreme Court nomination time again, which means that it will soon be nomination hearing time, which means that Elena Kagan will soon be asked how she believes the Constitution should be interpreted. But just in time comes a new book — “The Living Constitution,” by David A. Strauss — that tells us not to bother about that question because, odd though it might seem, the Constitution does not play a central role in constitutional interpretation. In the majority of instances, Strauss argues, “the text of the Constitution will play, at most, a ceremonial role.” Even “when a case involves the Constitution, the text routinely gets no attention,” for “on a day-to-day basis, American constitutional law is about precedents, and when precedents leave off, it is about commonsense notions of fairness and good policy.” Although rhetorically we have a constitutional legal system — one constrained by a command given in the past and embodied in a sacred text — in fact, Strauss contends, we have a common-law legal system “built not on an authoritative, foundational . . . text,” but out of “precedents and traditions that accumulate over time” and serve as a constraint on “transient public opinion.” To some extent, Strauss is right. Day to day the courts view (and configure) the facts and issues of a case in the light of previously established “landmark” decisions; the words of the Constitution are often not invoked. At least descriptively, the history of constitutional interpretation would seem to proceed as Strauss says it does, by a process of “evolutionary accretion” and not by an act of fidelity to an original intention, that is, to an intelligent design.

American Moral Rights statutes will not pose a challenge to the conventional, purely economic, account of American intellectual property law if a satisfactory account of those statutes can be given based solely upon economic considerations. Providing such an account has been tried, most prominently in a thorough and rigorous paper by Henry Hansmann and Marina Santilli, who acknowledge that non-economic considerations may have provided some motivation for these laws, but suggest that “much of the incentive for adopting moral rights legislation derives from other considerations,”49 primarily externality concerns familiar in law-and-economics analyses. This Part explains why, in light of the logic of the economic argument and the actual provisions that we observe in Moral Rights statutes, any attempt at economic reduction of these statutes is unlikely to succeed. We can begin by noting, with Hansmann and Santilli, that if granting artists a right of integrity is in fact an economically “reasonable exception” to property law’s “general prohibition on servitudes in chattels,” that must be because current owners “can seriously affect the interests of the artists who created those works or of other persons.”50 We also can borrow Hansmann and Santilli’s succinct enumeration of the three relevant interests that current owners of an artwork can seriously affect: First is the artist’s own “pecuniary interests” in the sales price that his or her future works might bring. Because “each of an artist’s works is an advertisement for all of the others,” harm that an owner does to one of an artist’s works decreases market demand for that artist’s future work.51 The resulting decrease in the prices at which the artist could sell future work would diminish both the artist’s potential wealth and the artist’s incentives for producing new work. Second is the pecuniary interest of previous purchasers of the artist’s work. Diminishing the artist’s reputation by altering one of the artist’s existing works lowers the price that collectors could get by reselling the artist’s other already completed works.52 Third is the public-at-large’s non-pecuniary interest in preserving works intact as “important elements in a community’s culture” or as “the embodiment of an idea.”53 Altering works necessarily sets back this interest. Because a current owner who decided to alter a work in his or her possession would personally bear only a small fraction of these costs—that is, because the alteration would have few or no negative effects on the current owner, but could have substantial negative externalities—owners might make such alterations more frequently than is socially optimal.54 Since concerns about externalities are a staple of economic analyses of law, an economic explanation for Moral Rights laws might therefore seem natural: giving artists the right to prevent post-sale alterations of their works promotes efficiency by limiting undesirable externalities.55 Thus, for example, VARA prohibits both reputation-harming alterations and the destruction of visual artworks that are culturally significant.56 If we examine this line of reasoning more closely, however, its persuasiveness vanishes. There are several general concerns with the plausibility of any account, such as Hansmann and Santilli’s, based on reputational externalities, and several specific concerns arise when we consider how well the account matches the principal features that we actually observe in Moral Rights laws. Let us start by considering the general concerns. If a key aim of Moral Rights law really is to maximize the aggregate market value of an artist’s artworks by elevating the artist’s reputation, thereby protecting the pecuniary interests of both the artist and owners of the artist’s works, logical symmetry would suggest that just as artists are permitted to prevent alterations that owners would like, so too they should be permitted to make changes to their own artworks even after selling them, whether or not the owners approved, provided only that the changes increase the value of the artist’s reputation more than they inconvenience the owner. (A tacit assumption of this economic account is that artists are always the best judges of what effect alterations will have on their reputation; thus, artists alone can decide what changes to prevent or allow.) Yet, of course, giving artists such a right to make changes would be quite startling.57 Such a right is not a standard element of “Moral Rights,” and no American law gives artists that right. In fact, I am aware of no law anywhere in the world that gives artists such a right.

Another reason for focusing on a broad and complex integrity framework (rather than the narrower spectrum of corruption) relates to the diversity of the phenomena under study. There seems to be a need for differentiation and nuance when researchers reflect in research and policy on the causes of integrity violations (including types of corruption) and the effectiveness of anti-corruption and integrity policies. Phenomena such as bribery; patronage and favoritism; private time misbehavior; fraud; intimidation and discrimination; and so forth might be caused by different characteristics of the involved individuals, the organization (culture and structure), and the environment (De Graaf, von Maravic, & Wagenaar, Citation2010).

A broader framework also is relevant for reflection on what helps to protect integrity and prevent integrity violations, including corruption.

THE CASE FOR AN INDEPENDENT RIGHT OF ATTRIBUTION The discussion in the foregoing parts of this Article focuses on the applicable case law in the areas of both copyright and section 43(a), and demonstrates the inherent difficulties with applying both the copyright and section 43(a) models to safeguard the interests protected by the right of attribution. An author can be deprived of attribution in a variety of circumstances even though no copyright or section 43(a) violations exist. Based on the foregoing analysis, it is clear that the authorial interests that are the focus of the right of attribution are protected only coincidentally through the invocation of alternate legal theories. Thus, if the United States truly is concerned with protecting authorial interests, it must contemplate enacting an explicit right of attribution. In many of the cases discussed in the foregoing parts, plaintiffs asserted both copyright infringement and section 43(a) causes of action. Batiste v. Island Records, Inc., [FN228] discussed in Part IB, is illustrative. There, the plaintiff songwriters could not prevail on their copyright claim because of the existence of a valid copyright assignment, and the defendant had secured the permission of the assignee prior to the release of the infringing album. [FN229] The plaintiffs in that case also raised a section 43(a) claim, based on the defendant's conduct of digitally sampling the plaintiffs' song and including it in the album, without attributing co-authorship of the defendant's song to all three plaintiffs. [FN230] The Fifth Circuit denied the application of section 43(a) as a means of enforcing the attribution interest in this instance because there was no evidence that consumers were confused or deceived by either the *1026 defendant's use of plaintiff's work or the incomplete authorship attribution. [FN231] The court further observed that the plaintiffs' claim that two of the brothers were improperly excluded from the liner notes accompanying the defendant's album also failed to suggest consumer confusion, especially because the liner notes did credit the band in which the omitted brothers performed. [FN232] The law's failure to provide authors with a right of attribution independent of both copyright infringement and section 43(a) is tellingly illustrated by the facts of Batiste. Copyright law in this country safeguards economic interests, rather than the authorial interests protected by the right of attribution. Section 43(a) of the Lanham Act can be used to safeguard the right of attribution in reverse passing off cases only where the court is satisfied that consumer confusion exists. Yet, consumer confusion is a concept totally unrelated to the authorial interests violated by a defendant's failure to attribute authorship. The Batiste court frames the attribution inquiry improperly because it is forced to determine attribution rights within legal frameworks ill-suited for the application of this important right. Whether consumers are confused by the defendant's actions, or whether the defendant has violated the plaintiff's economically based copyrights, are separate inquiries from whether the defendant has failed to attribute authorship of a work to someone entitled to such attribution. Moreover, the question whether the defendant's actual attribution in the liner notes would satisfy an independent right of attribution is a separate issue relating to the appropriate scope of the right of attribution. [FN233] In light of the current status of the law, this is not an issue the Batiste court even could address. Clearly, the crafting and application of an independent right of attribution can only be tackled by Congress or the judiciary, once the need for such an explicit right is accepted. Legal commentators often manifest skepticism regarding the benefits for the American legal system of adopting moral rights. [FN234] Of particular concern is the perceived conflict between adequate moral rights protection and the first amendment freedoms of authors desiring to build *1027 upon, and interpret, the creative works of others. [FN235] Moreover, powerful entertainment and publishing industries fear that their commercial practices may be disturbed if the United States were to adopt legislation more protective of authorial interests. [FN236] Notwithstanding these concerns, I have argued elsewhere that the United States' legal system is woefully inadequate in its protections of authors' interests, and that a comprehensive moral rights package is necessary to validate and safeguard authors' personality and spiritually based interests. [FN237]

As Lord Bridge has said, defining the term ‘jurisdiction’ is difficult, because it has many shades of meaning in different contexts, with new meanings being acquired as the law develops.45 A venerable working test is to examine three questions: in what actions does the court have jurisdiction; to what places is that jurisdiction confined; and to what persons does the jurisdiction extend?46 In Singapore, jurisdiction has been defined as meaning the court’s authority to hear and determine a dispute brought before it.47 For Professor Dockray, at its root jurisdiction means power, or the source of a court’s powers.48

This similarity in meaning between jurisdiction and power has resulted in the terms being used almost interchangeably in this context. For example, adjacent headings in Master Jacob’s article are ‘Powers of the court under the inherent jurisdiction’ and ‘Inherent powers exercisable by summary process’.49 In Singapore it has been held that the term inherent jurisdiction is a misnomer, with a better expression being simply that a court has certain inherent powers.50 This view was expressed by the Singapore Court of Appeal, whose jurisdiction is defined by statute, so it is perfectly understandable that it would prefer the innate nature theory, which would enable it to exercise inherent powers. Under the vesting theory a court that is the creature of statute has no inherent jurisdiction.

A new study conducted by the World Health Organization (WHO) in 36 countries found that two-thirds of sexually active women who wished to delay or limit childbearing stopped using contraception for fear of side effects, health concerns and underestimation of the likelihood of conception. This led to one in four pregnancies being unintended.

Whilst unintended pregnancies do not necessarily equate to pregnancies that are unwanted, they may lead to a wide range of health risks for the mother and child, such as malnutrition, illness, abuse and neglect, and even death. Unintended pregnancies can further lead to cycles of high fertility, as well as lower educational and employment potential and poverty – challenges which can span generations.

Over the past half century, Roe v. Wade has been a bedrock of constitutional rights extending beyond abortion. The Supreme Court decision overturning this ruling, issued Friday, makes clear that those other rights founded on the same principle of privacy, including gay sex, same-sex marriage, interracial marriage, and the freedom to use contraception, are now also called into question.

Writing for the majority in Dobbs v. Jackson, Justice Samuel Alito states that “​​nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” ​​But, in a solo concurring opinion, Justice Clarence Thomas explicitly calls on the Court to overturn other such constitutional rights.

Since it began, the Movement for Black Lives, a coalition of 50 groups that includes the Black Lives Matter network, has not only attracted international media attention, it also garnered government scrutiny. In 2017, a leaked FBI report outlined what the bureau described as a growing threat of “black identity extremism” as a result of “perceptions of police brutality against African Americans.”

At least one black activist was designated a black identity extremist and arrested after he posted on Facebook expressing solidarity with a person suspected in the killing of a police officer. The charges were later dropped. News organizations also reported cases of FBI and local police surveillance and infiltration of black activist networks, including Black Lives Matter.

We must finally ask whether African Americans can rely on a totalizing ideology to shape our visions of black justice and our future in America. My answer is no. I believe we need a more flexible approach than ideologies such as black Marxism, black nationalism, and at least the Cold War version of liberalism have allowed. We need a black critical theory that draws on and combines liberalism’s concern with individual rights and autonomy, republican concerns with community, socialist concern with an egalitarian society and economic justice for all, feminist traditions such as resistance to suppressing intragroup differences in the name of a false and oppressive unity, and blends these with recognition of the need for autonomous organization and cultural pride. No single world view or ideology comfortably accommodates all of these. But a critical theory can—and such a theory must be political. We’ve had a black aesthetic, black power, and a plethora of black public policy pronouncements. But a black political theory has to embody a theory of the state, power, human nature, and the good life. And such a theory must be based on the hope for and potential of the improvement of human nature while recognizing the wickedness of the world. Kantian pronouncements about systems that can be governed by devils have led us to a world where ethnic strife and nuclear and other horrors proliferate. We must strive for something better, something democratic, something cosmopolitan, not in the elite sense but in the sense that, since homogeneity is a thing of the past, even within states, we must fall back on our basic humanness. It is no coincidence that within American political thought this perspective appears most often in the black traditions and in black political thought, at least in the contemporary period—most often in the black feminist tradition. Thus the best legacy of black political ideologies for America is a tough, activist, inclusive democracy willing to challenge privileges of power and resources in the name of a grander vision which asserts that we are more than the mere aggregation of our individual preferences. Its morality, while democratic, would not be based on the latest consumer fad nor use the return to stockholders as the final arbiter of the public good. That we often fail in living up to our standards of justice within black activism as well as within America—that we are imperfect as individuals and as communities—does not mean, as King so eloquently demonstrated, that the vision itself is not a worthy goal. What black critical theory and each black ideology have demonstrated is that the doable, the mundane, incremental reform of the workings of American society is not enough; only the full promise of America has the potential to be truly liberating. Any other solution is not only unsatisfactory—it is likely to provoke the kind of deadly conflict most clearly seen in the Civil War but also seen today in the rapid upward spiral of political and personal violence which results as people measure their circumstances against what they see as the lies that fester at the center of the American Dream. A new, black, critical theory needs to retain one aspect of black ideological visions. At the heart of all of the black visions is a sense of pragmatic optimism combined with a steadfast determination to gain black justice. Both the optimism and the determination are needed now as ever to sustain the political projects and new visions of African Americans.

However, by expanding the concepts of what constitutes a valid copyright, Star Athletica now provides the framework to hold KTZ liable for infringement upon a showing that the motifs could be separated from the parka's utilitarian functions and protected on their own. 105 Despite the parka itself representing a copyrightable object, the Copyright Act remains restrictive when considered in light of customary law and traditional notions of communal authorship. Thus, it presents hurdles to the protection of analogous Indigenous designs. Star Athletica exemplifies the benefits of utilizing broad legislative interpretation as a tool to provide for greater protections and lays the groundwork for preventing cultural appropriation by incorporating customary laws within the existing legislative framework by recognizing notions of communal authorship and strengthening moral rights.

The Supreme Court ruled unanimously last Monday in Fourth Estate v. Wall-Street.com, a copyright case that hinged on whether the “registration” of a work—which, by statute, must precede most kinds of infringement lawsuits—happens when the author sends in their application, or whether it happens when the Copyright Office makes a determination and sends back a certificate. There was a circuit split on the issue, in which some courts had gone with the “application approach,” and others had gone with the “registration approach,” and legal experts were divided on the question.

As of last Monday it is resolved. The Supreme Court went with the “registration approach” and said that unless you’re subject to one of the handful of statutory carve-outs you must wait until the Copyright Office does its thing before you can sue.

Significantly expanding the scope of monetary recovery for copyright infringement, the U.S. Supreme Court held, in a 6-3 opinion issued on May 9, 2024, that the Copyright Act’s three-year statute of limitations is inapplicable to damages and thus there is no temporal limitation for timely asserted claims. In issuing this decision, however, the Court explicitly sidestepped the threshold – and arguably pivotal – question of when a copyright infringement claim “accrues” under the Copyright Act, leaving for another day the resolution of what makes a claim “timely.”

The case, Warner Chappell Music, Inc. v. Nealy, involved a copyright infringement claim asserted by Sherman Nealy, who recorded and released an album and several singles in the 1980s with Tony Butler through their short-lived music venture, Music Specialist, Inc. The Nealy/Butler collaboration eventually dissolved, and Nealy served prison terms for drug-related offenses from 1989 to 2008 and from 2012 to 2015. Unbeknownst to Nealy, Butler licensed works from the Music Specialist catalogue to Warner Chappell while Nealy was in prison, one of which was used in Flo Rida’s hit song In the Ayer, which sold millions of copies and reached No. 9 on the Billboard chart.