1. Owen Fiss, Troubled Beginnings of the Modern State, 1888-1910, vol. 8 of The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States (New York: Macmillan, 1993). A remarkable effort to get beyond the progressive and New Deal view that the Court simply used its power to advance class interests, Fiss's book confirms much of my argument about the promise of contract. On Fiss's and my differences, see chapter 2, n. 34 of my book.

2. Sir Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society and Its Relation to Modern Ideas, 10th ed. (1861; reprint, New York: Dorset, 1986), p. 141.

3. William Graham Sumner, What Social Classes Owe to Each Other (New York: Harper & Brother, 1883), pp. 24-25.

4. William Graham Sumner, p. 26.

5. William Graham Sumner, p. 25.

6. Karl Polanyi, The Great Transformation (New York: Farrar & Rinehart, 1944), p. 153.

7. William E. Forbath, "The Ambiguities of Free Labor: Labor and Law in the Gilded Age," Wisconsin Law Review (1985): 767-817.

8. The status of controlling one's means of production, more than the possibilities of earning power, helps to explain the attraction of a career as an artist in books as different as Elizabeth Stuart Phelps's The Story of Avis and Kate Chopin's The Awakening .

9. Howells, for instance, tried to get out of a long-term contract that he signed in 1885, in which he agreed "not to write for any other person or firm, and not to act on or allow his name to be used in any editorial relation by any other person or firm during the agreement." Quoted by Daniel H. Borus, Writing Realism (Chapel Hill: Univ. of North Carolina Press, 1989), p. 49.

10. Richard Hofstadter, The Age of Reform (New York: Alfred A. Knopf, 1955).

11. Alan Trachtenberg, The Incorporation of America (New York: Hill and Wang, 1982).

12. "Corporate liberalism" was coined by Martin Sklar in "Woodrow Wilson and the Political Economy of Modern United States Liberalism," Studies on the Left 1 (1960): 17-47.

13. Peter Gabel and Jay M. Feinman, "Contract Law and Ideology," in The Politics of Law, ed. David Kairys (New York: Pantheon Books, 1982), pp. 172-84.

14. Henry James, The American (Boston: Houghton Mifflin, 1962), p. 163. Established by Matthew J. Bruccoli, this text is based on the first authorized English edition, published in 1879 by Macmillan. For a different reading, see Mark Seltzer, Bodies and Machines (New York: Routledge, 1992). Seltzer acknowledges that "From one point of view, the conflict in The American is the conflict between status and contract." But, he hastens to add, "From another, neither status nor contract, nor their conflict provides the model for understanding the economic and effective 'conditions of identity' or individuality at the turn of the century" (73). For him, more important is the distinction between bodies and machines. Whereas I acknowledge the period's fascination with bodies and machines, I disagree with Seltzer's implication that this fascination provides the key to unlock the period's complexity. My point is not that the conflict between status and contract is the real key, but instead that we need to explore the relations among various conflicts, not seek metaexplanations.

15. Charles Fried, Contract as Promise (Cambridge: Harvard Univ. Press, 1981).

16. For an analysis of the "Contract" in terms of contract law, see Stephen L. Carter, "[Breach of] Contract with [Part of] America," The New York Times Magazine (9 April 1995), pp. 62-63.

17. Albion W. Tourgée, "The Claim of Realism," North American Review 148 (1889): 388.

18. Ian Watt, The Rise of the Novel (Berkeley: Univ. of California Press, 1957).

19. Linda Nochlin, Realism (Baltimore: Penguin, 1971), p. 45.

20. David Shi, Facing Facts (New York: Oxford Univ. Press, 1994).

21. Fredric Jameson notes that "genres are essentially literary institutions, or social contracts between a writer and a specific public, whose function it is to specify the proper use of a particular cultural artifact." The Political Unconscious (Ithaca: Cornell Univ. Press, 1981) p. 106. For more on readerly contracts, see Northrop Frye, The Anatomy of Criticism (Princeton: Princeton Univ. Press, 1957), p. 76; Jonathan Culler, Structuralist Poetics (Ithaca: Cornell Univ. Press, 1975), pp. 193, 195-96, 214 (on Greimas's syntagmes contractuels ); Philippe Lejune, Le Pacte Autobiographique (Paris: Edition de Seuil, 1975); and "The Autobiographical Contract," in French Literary History Today, ed. Tzetan Todorov, (New York: Cambridge Univ. Press, 1982), pp. 196-222; Tony Tanner, Adultery in the Novel: Contract and Transgression (Baltimore: Johns Hopkins Univ. Press, 1979); Ross Chambers, Story and Situation (Minneapolis: Univ. of Minnesota Press, 1984); and Carla Kaplan, "Narrative Contracts and Emancipatory Readers," The Yale Journal of Criticism 6 (1993): 93-120.

22. Winfried Fluck, Inszenierte Wirklichkeit (Munich: Wilhelm Fink Verlag, 1992), p. 362. See also Heinz Ickstadt, "Concepts of Society and the Practice of Fiction: Symbolic Responses to the Experience of Change in Late Nineteenth-Century America," in Impressions of a Gilded Age, eds. Marc Chenétier and Rob Kroes (Amsterdam: Univ. of Amsterdam Press, 1983), pp. 77-95.

23. Edith Wharton, "Fiction and Criticism," Beinecke Library, Yale Univ., quoted in Shi, Facing Facts, p. 123.

24. Erich Auerbach, Mimesis (Princeton: Princeton Univ. Press, 1953), p. 552. Amy Kaplan notes that Howells "anticipates Erich Auerbach's well-known definition of nineteenth-century realism as the breakdown of neoclassical styles," but she also links Howells's efforts to class conflict. The Social Construction of American Realism (Chicago: Univ. of Chicago Press, 1988), p. 22.

25. Georges Poulet compares James to a "disciple of Copernicus" who "felt himself to be without a landmark in the vastness of cosmic space." The Metamorphosis of the Circle (Baltimore: Johns Hopkins Univ. Press, 1966), p. 308. See also Robert C. Post, "A Theory of Genre: Romance, Realism, and Moral Reality," American Quarterly 33 (1981): 367-90 and Winfried Fluck, Inzenierte Wirklichkeit (Munich: Wilhelm Fink Verlag, 1992).

26. Ross Posnock, The Trial of Curiosity (New York: Oxford Univ. Press, 1991), p. 91.

27. Tony Tanner, Henry James (Amherst: Univ. of Massachusetts Press, 1985), pp. 107-8.

28. William Dean Howells, "Review," Atlantic Monthly 25 (1870): 124. See also Walter Blair, Mark Twain and Huck Finn (Berkeley: Univ. of California Press, 1960), p. 64; Anne Trensky, "The Bad Boy in Nineteenth-Century American Fiction," Georgia Review 27 (1973): 503-17; John Crowley, " Little Women and the Boy-Book," New England Quarterly 58 (1985): 384-99; and Steve Mailloux, Rhetorical Power (Ithaca: Cornell Univ. Press, 1989), pp. 111-13.

29. Hans Blumenberg helps with such discriminations by describing four concepts of reality that have appeared in the West. One is self-evidence. Within this concept reality might be obscured by historical contingencies or the inability of people to see it, but an act of mimesis can make it visible by creating a moment of re-cognition. Another concept is that of a guaranteed reality. Descartes expresses this view through his faith in a God who will not deceive and thus guarantees trust in our senses. A third concept is reality as the actualization of a context. Close to the idea of reality as a social construction, this concept assumes the existence of realities rather than one Reality. Finally, there is reality defined by its resistance to efforts to represent it.

By my definition, works of realism operate within three of these concepts. Reality in them almost always involves the construction of social conventions. At times they also reveal a truth obscured by false conventions. At others reality resists agreement with their efforts to represent it. But the one concept that they call into question, and in doing so distinguish themselves from other works at the time, is a guaranteed sense of reality. "The Concept of Reality and the Possibility of the Novel," New Perspectives in German Literary Criticism, eds.

Richard E. Amacher and Victor Lange (Princeton: Princeton Univ. Press, 1979), pp. 29-48.

30. On the realists' response to the sentimental tradition, see Alfred Habegger, Gender, Fantasy, and Realism in American Literature (New York: Columbia Univ. Press, 1982), and Michael D. Bell, "The Sin of Art and the Problem of American Realism: William Dean Howells," Prospects 9 (1984): 115-42.

31. Richard Chase, The American Novel and Its Tradition (Garden City, N.Y.: Anchor Books, 1957), p. 186 n, and George J. Becker, "Modern Realism as a Literary Movement," in Documents of Modern Literary Realism, ed. George J. Becker (Princeton: Princeton Univ. Press, 1963), p. 35. See also Shi, Facing Facts .

32. Sandy Patrey, "The Language of Realism, the Language of False Consciousness: A Reading of Sister Carrie," Novel 10 (1977): 103.

33. Robert A. Ferguson, Law and Letters in American Culture (Cambridge: Harvard Univ. Press, 1984).

34. Michael Paul Rogin, Subversive Genealogy (New York: Knopf, 1983), p. 302. For a very different account, see Richard A. Hocks, "Melville and 'The Rise of Realism': The Dilemma of History in Billy Budd," American Literary Realism 26 (1994): 60-81.

35. Georg Lukàcs, "The Ideology of Modernism," Realism in Our Time, trans. John and Necke Mandcr (New York: Harper & Row, 1962), pp. 17-46.

36. Chase; Eric Sundquist, "Introduction: The Country of the Blue," in American Realism, ed. Eric Sundquist (Baltimore: Johns Hopkins Univ. Press, 1982), pp. 3-24. Ortega y Gassett argues that the romance inhabits the entire genre of the novel. Meditations on Quixote, trans. Evelyn Rugg and Diego Marín (New York: W. W. Norton & Co., 1961). On Twain's ridicule and use of romanticism, see Edgar M. Branch, "Samuel Clemens: Learning to Venture a Miracle," American Literary Realism 8 (1975): 91-9. Trachtenberg argues that "Howells resorted often to 'romance' to preserve the moral assurances of his "realism.' '' The Incorporation of America, p. 192. Michael Davitt Bell, in The Problem of American Realism (Chicago: Univ. of Chicago Press, 1993), claims that the problem of American realism is its theory of literature based on a radical desire to suppress the "literary." Drawing on Howells's criticism to define realism according to this naive opposition between life and literature, Bell contends that no one except Howells and Norris adhered to the definition. In contrast to Bell, I look not to critical statements about realism, but to its practice. As Bell himself notes, Howells was ''no Auerbach, no Lukàcs" (5). Neither was Balzac nor Flaubert. Howells's practice (along with James's and Twain's) does not conform to a naive view of reality.

37. Brook Thomas, "Language and Identity in Adventures of Huckleberry Finn," Mark Twain Journal 20 (1980-1981): 17-21.

38. Walter Benn Michaels was one of the first to point out the infinite repeatability of "deconstructivc" readings. He does so by comparing them to pragmatic ones. "The Interpreter's Self: Peirce on the Cartesian Subject," Georgia Review 31 (1977): 383-402.

39. Jean-François Lyotard, The Postmodern Condition (Minneapolis: Univ. of Minnesota Press, 1984), p. 82.

40. Hilary Putnam, The Many Faces of Realism (La Salle, Ill.: Open Court, 1987), p. 30.

41. In a recent exception, Bruce Robbins proposes reconceiving realism as a "continuing social project that (in some form) one might still want to sign on to." "Modernism and Literary Realism," in Realism and Representation, ed. George Levine (Madison: Univ. of Wisconsin Press, 1993), p. 225.

42. Laurence B. Holland, The Expense of Vision (Baltimore: Johns Hopkins Univ. Press, 1964), p. ix.

43. Darstellung is a crucial concept for Hegel and Marx. Wolfgang Iser relies on it in "Feigning in Fiction," in Identity of the Literary Texts, eds. Mario J. Valdés and Owen Miller (Toronto: Univ. of Toronto Press, 1985), pp. 204-28, and "Representation: A Performative Act," in The Aims of Representation, ed. Murray Krieger (New York: Columbia Univ. Press, 1987), pp. 217-32. Iser influenced Fluck's discussion of American realism in Inzenierte Wirklichkeit . See also my discussion of Darstellung and representation in The New Historicism and Other Old-Fashioned Topics (Princeton: Princeton Univ. Press, 1991), pp. 177-218.

44. Both Edwin H. Cady, in The Common Light of Day (Bloomington: Indiana Univ. Press, 1971), and Everett Carter, in Howells and the Age of Realism (Philadelphia: J. B. Lippincott Co., 1954), propose a pragmatic understanding of realism. Cady describes reality as a "socially agreed upon 'common vision' which permits ordinary processes of law and society to succeed, creates the possibilities of games, [and] makes most technical, economic, and even educational processes possible" (19). Carter has a section on "Pragmatism and Realism" (152-56). Both, however, underplay the way in which the realists' technical innovations can transform our common vision.

45. For example, Albion W. Tourgée criticizes literary realists for abandoning the reality of principles, ideals, and hope. Tourgée's objections will be examined at length in chapter 7.

46. Van Wyck Brooks, The Ordeal of Mark Twain (New York: Dutton, 1920).

47. Roland Barthes, S/Z, trans. Richard Miller (New York: Hill and Wang, 1974). For Foucault the novel is "part of that great system of constraint by which the West compelled the everyday to bring itself into discourse." "The Life of Infamous Men," in Power, Truth, Strategy (Sydney: Feral Publications, 1979). See also Leo Bersani, A Future for Astyanax (Boston: Little, Brown, 1976).

48. Nancy Armstrong and Leonard Tennenhouse, The Violence of Representation (London: Routledge, 1989), p. 2.

49. Philip Fisher, "Democratic Social Space: Whitman, Melville, and the Promise of Transparency," Representations 24 (1988): 82. Followers of Foucault often use literary works to explore decentralized, "private" deployments of power. See, for instance, Leo Bersani's discussion of James in ''The Subject of Power,'' Diacritics 7 (1975): 2-21. To reconnect such deployments of power

with a police state is to fall prey to paranoid fantasies about the ubiquitous nature of governmental power.

50. Mark Seltzer, Henry James and the Art of Power (Ithaca: Cornell Univ. Press, 1984), p. 54. Seltzer's work has strong affinities with D. A. Miller's The Novel and the Police (Berkeley: Univ. of California Press, 1987).

51. Kaplan, The Social Construction of American Realism, p. 10.

52. Walter Benn Michaels, The Gold Standard and the Logic of Naturalism (Berkeley: Univ. of California Press, 1987), and James Livingston, Pragmatism and the Political Economy of Cultural Revolution, 1850-1940 (Chapel Hill: Univ. of North Carolina Press, 1994). I treat Michaels's argument about corporations at length in "Walter Benn Michaels and Cultural Poetics: Where's the Difference?" in The New Historicism, pp. 117-50. I come back to his argument about realism in the chapter on Howells in this book. See also chapter 2, n. 39 of this book.

Livingston links proprietary capitalism with the "rational, autonomous, individual required" by "liberal political theory" and its ''indispensable assumption of ... the ontological priority of the pure self" (125). In contrast he champions a "discursive self'' that is appropriate to the "age of surplus" in consumer and corporate capitalism. He finds it in Whitman, the literary naturalists, and pragmatism, whereas the realists (with the possible exception of James) cling to possessive individualism. The "discursive self" he argues, "goes underground after the Civil War, as the realism of Howells and Twain carries the day. But it erupts from the exhausted soil of American letters in the 1890s, in the form of literary naturalism" (137). Livingston is, I believe, correct to see an affinity (if not identity) between the corporate self and pragmatism. But his account of the realists, which depends on equating Howells's point of view with Ben Halleck's in A Modern Instance, is far too simple. Indeed, I will argue that the realists challenge Livingston's assumption that the only alternative to a discursive, "postmodern" subjectivity is the autonomous self of possessive individualism.

53. Robert William Fogel, Without Consent or Contract (New York: Norton, 1989).

54. Martin Luther King Jr., "Speech at Civil Rights March," Washington D.C., 28 August 1963, in Martin Luther King, Jr ., ed. Flip Schulke (New York: Norton, 1976), p. 218.

55. Roscoe Pound, An Introduction to the Philosophy of Law (New Haven: Yale Univ. Press, 1922), p. 236.

56. Hugh Collins, The Law of Contract (London: Weidenfield and Nicolson, 1986), p. 9.

57. Hannah Arendt, The Human Condition (Chicago: Univ. of Chicago Press, 1958), p. 209.

58. William Dean Howells, "A Psychological Counter-Current in Recent Fiction," North American Review 172 (1901): 882.

59. Lynch v. Donnelly, 465 U.S. 668 at 687 (1984).

60. Michael Walzer, "The Concept of Civil Society," in Toward a Global Civil Society, ed. Michael Walzer (Providence: Berghahn Books, 1995), p. 7.

1. William Dean Howells, A Modern Instance, eds. David J. Nordloh and David Kleinman (Bloomington: Indiana Univ. Press, 1977), p. 4. Future references to this text will be cited parenthetically, as MI.

2. Aristotle, The Rhetoric and Poetics of Aristotle, bk. 1 (New York: Modern Library, 1954), p. 80. The translation is W. Rhys Roberts's.

3. Joseph Story, Commentaries on Equity Jurisprudence as Administered in England and America, vol. 1 (Boston: Hilliard, Gray & Co., 1835), p. 8.

4. Aristotle, Rhetoric, p. 81.

5. Story, Equity Jurisprudence, vol. 1, p. 12.

6. See, for instance, William Lambarde, Archeion, eds. Charles H. McIlwain and Paul L. Ward (Cambridge: Harvard Univ. Press, 1957)—completed 1591, published 1635—and Edward Hake, Epiekeia, ed. D. E. C. Yale (London: Oxford Univ. Press, 1953), also written in the 1590s.

7. Sir William Blackstone, Commentaries on the Laws of England, ed. Thomas M. Cooley, vol. 2, 3rd ed., rev. (Chicago: Callaghan & Co., 1884), p. 433. Cooley's edition is appropriate for the period about which I am writing.

8. Charges of paternalism do not necessarily disappear when equity is denied a separate institutional structure. For instance, Richard Posner argues that every legal system provides space for equitable relief through the discretionary power of judges: Law and Literature: A Misunderstood Relation (Cambridge: Harvard Univ. Press, 1988), pp. 112-13. In Roman law the jus praetorium, or discretion of the praetor, was distinct from the leyes, or standing law. Nonetheless, both powers were granted to the same magistrate. Similarly, Grotius recognizes the power of judges' discretionary interpretation when a law is too general: " Lex non exacte definit, sed arbitrio boni viri permittit " ("Indefinite statutes allow the judgment of good men," quoted in Blackstone, vol. 2, p. 431). But as the fate of the Latin word arbitrio in English reminds us, judgment or arbitration left up to one person always raises the specter of arbitrariness. Judges are granted discretionary power only because of the institutional position that they occupy, an institutional position that makes them paternal guardians of the law and justice. Outside of that institutional position, a person exercising discretionary judgment is prone to charges of selective interpretation. Within it, a judge is assumed to have the power to distinguish between the spirit and the letter of the law so as to temper his justice with mercy.

The connection between equity and mercy is a traditional one. In addition to Shakespeare's The Merchant of Venice, see St. Germain's claim that "Equity is a righteousness, that considereth all the particular circumstances of the deed, which is also tempered with the sweetness of mercy" (quoted in Story, Equity Jurisprudence, vol. 1, p. 11). Howells, who according to Edwin H. Cady refers to the need for a "law of mercy," would seem to be influenced by this notion of equity: see "Introduction," A Modern Instance (New York: Penguin Books, 1984), p. xxiii. Nonetheless, at the end of the novel, Ben Halleck, who has presided over the burial of the Squire, writes to his lawyer friend Eustace Atherton asking for "your judgment without mercy'' (MI 451).

9. Val Nolan Jr., "Indiana: Birthplace of Migratory Divorce," Indiana Law Journal 26 (1951): 515-27. The Squire notes, "Bartley must have been disappointed when he found divorce so hard to get in Indiana. He must have thought that the old law is still in force there" (MI 408). Laura Korobkin offered this reference.

10. On Tönnies's debt to Maine, see George Feaver, From Status to Contract (London: Longmans, 1969), pp. 58, 282 n. 51. Maine influenced Holmes's The Common Law and Henry Adams. (See Feaver, pp. 132-33, 147-48). Drawing much of his anthropological data from his experience in colonial India, Maine Would be a fascinating figure for postcolonial critics to study. Maine's advocacy of contract by no means made him a democratic thinker. On Maine and Howells see, George R. Uba, "Status and Contract: The Divorce Dispute of the 'Eighties and Howells' A Modern Instance," Colby Library Quarterly 19 (1983): 78-89. On the transition in American society from small communities to a modern society, see Robert H. Wiebe, The Search for Order, 1877-1920 (New York: Hill and Wang, 1967), Jean B. Quandt, From the Small Town to the Great Community (New Brunswick: Rutgers Univ. Press, 1970), and Thomas Bender, Community and Social Change in America (New Brunswick: Rutgers Univ. Press, 1978).

11. Bartley is not the only character who does not stay true to his word. The Squire warns his daughter, "Don't keep making promises and breaking them" (MI 165).

12. Stanley Cavell, The Claim of Reason (New York: Oxford Univ. Press, 1979), pp. 247-73, 292-312. For Cavell's debt to the "distinction between Gemeinschaft and Gesellschaft, " see p. 299.

13. See Annette Baier, "Promises, Promises, Promises," in Postures of the Mind (Minneapolis: Univ. of Minnesota Press, 1985), pp. 174-206.

14. David Hume, A Treatise of Human Nature, eds. L. A. Selby-Bigge and P. H. Nidditch (Oxford: Clarendon Press, 1978), p. 522.

15. Sir Frederick Pollock notes that Maine shows the "huge anachronism" involved in "those political theories which seek to make contract the foundation of all positive law and even of government itself." Sir Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society and Its Relation to Modern Ideas, 10th ed. (1906; reprint, Boston: Beacon Press, 1963), p. 444. See also Michael Rosenfeld, ''Contract and Justice: The Relation between Classical Contract Law and Social Contract Theory," Iowa Law Review 70 (1985): 769-885.

16. For a critical look at the notion of both individual and political sovereignty, see the final chapter.

17. Thomas L. Haskell, "Capitalism and the Humanitarian Sensibility, Part 2," in The Antislavery Debate, ed. Thomas Bender, (Berkeley: Univ. of California, Press, 1992), pp. 141-44.

18. Haskell, pp. 146, 151. On Maine and Haskell's argument, see Morton J. Horwitz, "Reconstructing Historical Theory from the Debris of the Cold War," Yale Law Journal 102 (1993): 1287-92.

19. Emile Durkheim, "Individualism and the Intellectuals," in On Morality and Society, ed. Robert N. Bellah (Chicago: Univ. of Chicago Press, 1973), pp.

48-49. In a note Durkheim adds, "This is how it is possible, without contradiction, to be an individualist, all the while saying that the individual is more a product of society than its cause. It is because individualism itself is a social product like all moralities and religions" (231 n. 4).

20. See Sacvan Bercovitch's fascinating discussion of individualism in "Emerson, Individualism, and Liberal Dissent," in The Rites of Assent (New York: Routledge, 1993), pp. 307-52. When Emerson died, Maine was elected in May 1883 to the Academie des Sciences Morales et Politiques in France to fill his vacancy.

21. For Durkheim's views on contract, see Dominick LaCapra, Emile Durkheim (Ithaca: Cornell Univ. Press, 1972), pp. 129-33.

22. Thomas L. Haskell, pp. 145, 146. In Hawkes v. Saunders (1782), Mansfield is reported to have said, "Where a man is under a moral obligation, which no Court of Law or Equity can enforce, and promises, the honesty and rectitude of the thing is a consideration.... [T]he ties of conscience upon an upright mind are sufficient consideration." Quoted in Grant Gilmore, The Death of Contract (Columbus: Ohio State Univ. Press, 1974), p. 110 n. 32. My discussion of contract law, especially Oliver Wendell Holmes Jr.'s contribution to it, is heavily indebted to Gilmore. See also the essays collected in Law, Economy and the Power of Contract, ed. Kermit L. Hall (New York: Garland, 1987).

23. C. H. S. Fifoot, Lord Mansfield (Oxford: Clarendon Press, 1936) and James Oldham, The Mansfield Manuscripts and the Growth of English Law in the Eighteenth Century (Chapel Hill: Univ. of North Carolina Press, 1992).

24. P. S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Oxford Univ. Press, 1979), p. 345.

25. Haskell, p. 152.

26. Story, Equity Jurisprudence, vol. 1, p. 9.

27. P. S. Atiyah, pp. 388-97. See also the detailed argument in Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge: Harvard Univ. Press, 1977), pp. 256-656. Exaggerating somewhat, Horwitz describes how in the United States equity was either abolished or subordinated to the legal system. For criticism, see A. W. B. Simpson, "The Horwitz Thesis and the History of Contracts," The University of Chicago Law Review 46 (1979): 533-601.

28. Quoted in Istvan Hont and. Michael Ignatieff, "Needs and Justice in the Wealth of Nations, " in Wealth and Virtue, eds. Hont and Ignatieff (Cambridge: Cambridge Univ. Press, 1983), pp. 3-4.

29. Quoted in Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, eds. R. H. Campbell, A. S. Skinner, and W. B. Todd, vol. 2 (Oxford: Oxford Univ. Press, 1975), p. 9.

30. Hont and Ignatieff, p. 44.

31. David Liedeman, "The Legal Needs of a Commercial Society: The Jurisprudence of Lord Kames," in Wealth and Virtue, pp. 203-34.

32. Adam Smith, Wealth of Nations, vol. 1, p. 11.

33. Lawrence Friedman, Contract Law in America (Madison: Univ. of Wisconsin Press, 1965), pp. 20-21.

34. See Al Katz, "Studies in Boundary Ideology: Three Essays in Adjudication and Politics," Buffalo Law Review 28 (1979): 383-435, and Robert Gordon, "Legal Thought and Legal Practice in the Age of American Enterprise, 1870-1920," in Professions and Professional Ideologies in America, ed. Gerald L. Geison (Chapel Hill: Univ. of North Carolina Press, 1983), pp. 70-110.

On the Constitution as a self-perpetuating machine, see Michael Kammen, A Machine That Would Go of Itself (New York: Knopf, 1986). Kammen's title comes from an 1889 work by A. Lawrence Lowell. A commonplace progressive criticism of late nineteenth-century legal thought (made by, among others, Woodrow Wilson and John Dewey) was its acceptance of a Newtonian universe. Today we should interrogate the organic metaphors that progressives used, and continue to use, to replace mechanical ones.

Boundary thought points to a limitation to Owen Fiss's remarkable effort to understand the Supreme Court in this period according to contractarianism. If contract ruled in the political and economic realms, it did not in the domestic sphere. Fiss's neglect of boundary theory's grounding in nature also causes him to miss its failure to live up to the interpersonal promise of contract. For instance, he argues that the Court "advanced the idea that the traditional government was a constituted authority with no existence outside, or beyond, the Constitution" (252). For many, the superiority of the Constitution lay in its "realistic" grounding in natural laws or reason.

Belief in the superiority of the United States Constitution complicates Fiss's claim that the Court adheres to a social contract model. To be sure, Locke was influential. But, for the most part, social contract theory is universalist, positing a state of nature applicable to all people. As I have pointed out, the argument that progressive societies have moved from status to contract calls into question an original contract. (See this chapter, n. 15.) It also raises a crucial question that members of the Court answered differently: what makes some societies more progressive than others? Is the cause institutional, in which case less progressive societies simply need to adopt a contractual model? Or is it racial, in which some societies would be incapable of living contractually? The latter point of view governs the opinions of some justices in the Insular Cases . Justice Brown, for instance, writes, "There are certain principles of justice inherent in the Anglo-Saxon character which need no expression in constitution or statute to give them effect" Downes v. Bidwell, 182 U.S. 244 at 280 (1901). Troubled Beginnings of the Modern State, 1880-1901, vol. 8 of The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States (New York: Macmillan, 1993).

35. Friedman, Contract Law, p. 20.

36. LaCapra, Emile Durkheim, pp. 108-9.

37. Eric Foner, "The Meaning of Emancipation in the Age of Freedom," The Journal of American History 80 (1994): 435-60.

38. Lochner v. New York, 198 U.S. 45, 61 (1905).

39. C. B. Macpherson, The Political Theory of Possessive Individualism (New York: Oxford Univ. Press, 1962). On republicanism and liberalism, see J. G. A. Pocock, The Machiavellian Moment (Princeton: Princeton Univ. Press, 1975), and, among many others, Bernard Bailyn, The Ideological Origins of the Amer -

ican Revolution (Cambridge: Harvard Univ. Press, 1967); Gordon Wood, The Creation of the American Republic, 1776-1787 (New York: Oxford Univ. Press, 1969); John Ashworth, "The Jeffersonians: Classical Republicans or Liberal Capitalists?" Journal of American Studies 18 (1984): 425-35; James T. Kloppenberg, "The Virtues of Liberalism: Christianity, Republicanism, and Ethics in Early American Political Discourse," Journal of American History 74 (1987): 9-33; "Symposium: The Republican Civic Tradition," Yale Law Journal 97 (1988): 1493-723; and Dorothy Ross, The Origins of American Social Science (New York: Cambridge Univ. Press, 1991). On republicanism in American law, see R. Kent Newmyer, Supreme Court Justice Joseph Story (Chapel Hill: Univ. of North Carolina Press, 1985) and G. Edward White, The Marshall Court and Cultural Change, 1815-1835 (New York: Macmillan, 1988). For literature, see Republicanism in the Gilded Age, ed. Robert Shulman, a special issue of American Transcendental Quarterly 4 (1990).

Macpherson's description of classical liberalism's amoral account of market relations leads to the strengths and weaknesses of Walter Benn Michaels, the most provocative new historicist writing on the period's literature. Michaels recognizes the extent to which progressive accounts of the period often remain lodged within a tradition of genteel moralism. Nonetheless, while challenging this moralistic interpretation, he continues to accept its assumption of an amoral, economic realm. Accepting a Macphersonlike account of classical liberalism, he frequently evokes what he calls the "logic of the market," thus ignoring the extent to which laissez-faire theorists were themselves moralists at heart. As a result, Michaels neglects the important role that status played in laissez-faire thought. Seeing all relations as being governed by the "logic of the market," he pays little attention to how laissez-faire thinkers distinguished among social, economic, and political realms. The Gold Standard and the Logic of Naturalism (Berkeley: Univ. of California Press, 1987).

Howard Horwitz, Michaels's student, also remains caught within Macpherson's description of liberalism. His neglect of the republican tradition weakens his fascinating argument in By the Law of Nature (New York: Oxford Univ. Press, 1991). For instance, Horwitz occasionally refers to the work of Pocock without engaging or even citing The Machiavellian Moment, which challenges Horwitz's Louis Hartz-derived assumption that nineteenth-century America is a site of pure liberalism. My own work in Cross-examinations of Law and Literature (New York: Cambridge Univ. Press, 1987) was written under the sway of Macpherson, and it occasionally suffers as a result.

40. Herbert Hovenkamp, Enterprise and American Law, 1836-1937 (Cambridge: Harvard Univ. Press, 1991), p. 94. His narrow definition relies on Herman Belz, Emancipation and Equal Rights (New York: W. W. Norton & Co., 1978) and supports Raoul Berger, Government by Judiciary (Cambridge: Harvard Univ. Press, 1977). See contrary interpretations in Harold M. Hyman and William M. Wiecek, Equal Justice Under Law (New York: Harper and Row, 1982); Aviam Soifer, "Protecting Civil Rights: A Critique of Raoul Berger's History," New York University Law Review 54 (1979): 651-706; and "Status, Contract, and Promises Unkept," Yale Law Journal 96 (1987): 1916-59.

41. Justice Harlan dissents with an argument for a more expansive reading of protections provided by the 13th and 14th Amendments.

42. See Robert J. Kaczorowski, "To Begin the Nation Anew: Congress, Citizenship, and Civil Rights after the Civil War," The American Historical Review 92 (1987): 45-68 (quotation on p. 59). The federal authority behind The Fugitive Slave Act of 1850 derived from Joseph Story's decision in Prigg v. Pennsylvania, 16 Pet. (41 U.S.) 539 (1842).

43. Charles Sumner, quoted in Albion W. Tourgée, An Appeal to Caesar (New York: Fords, Howard & Hulbert, 1884), p. 72.

44. Quoted in Hovenkamp, Enterprise in American Law, p. 95.

45. Bradwell v. State, 83 U.S. 130, 141-2. (1872).

46. In 1892 the Illinois court on its own directed that Bradwell be issued a license to practice law. But if the status of women was changing in the eyes of the law, it continued to influence judicial decisions. In Muller v. Oregon (1908) the Supreme Court, persuaded in part by Justice Brandeis's use of social science evidence, ruled that a state could regulate working hours of women, even though in Lochner it forbade such regulation for men.

47. Plessy v. Ferguson, 163 U.S. 537, 551 (1896).

48. Plessy v. Ferguson, 163 U.S. 537, 544, 551 (1896).

49. Oliver Wendell Holmes Jr., The Common Law (1881; reprint, Cambridge: Harvard Univ. Press, 1963), p. 5, and Southern Pacific R.R. Co. v. Jensen, 244 U.S. 205, 222 (1917).

50. Morton G. White, Social Thought in America (New York: Viking, 1949). For an argument against White's description of Holmes, see Yosal Rogat, "The Judge as Spectator," The University of Chicago Law Review 31 (1964): 251-53, n. 194. See also chapter 7, n. 67 of this book.

51. On similarities between legal and literary realism, see John P. McWilliams Jr., "Innocent Criminal or Criminal Innocence: The Trial in American Fiction," in Carl S. Smith, John P. McWilliams Jr., and Maxwell Bloomfield, Law and American Literature, (New York: Knopf, 1983), pp. 45-124. My discussion of Holmes, who influenced the legal realists, suggests differences as well.

52. Roscoe Pound, "Law in Books and Law in Action," American Law Review 44 (1910): 12-13.

53. Oliver Wendell Holmes Jr., Louisville Gas & Co. v. Coleman, 277 U.S. 32, 41 (1928) (dissenting), and Schlesinger v. Wisconsin, 270 U.S. 230, 241 (1926) (dissenting).

54. Oliver Wendell Holmes Jr., "The Path of the Law," Harvard Law Review 10 (1897): 462.

55. Thomas M. Cooley, A Treatise on the Law of Torts, or the Wrongs which Arise Independently of Contract (Chicago: Callahan and Co., 1880).

56. Holmes, The Common Law, p. 242.

57. Holmes's handwritten annotation in his copy of The Common Law, reproduced in the 1963 edition, p. 230. Noted in Gilmore, p. 21.

58. Holmes, The Common Law, p. 236. By insisting that someone is "free to break his contract, if he chooses," Holmes clearly wants to distinguish contract from slavery. Contractual liability for him is not a form of limited

slavery. Indeed, he opposed the equitable remedy of specific performance, in which someone who breaches a contract is placed in temporary servitude to the contracting party. Holmes agreed with Lord Coke in Brommage v. Genning, 1 Rolle 368 (K.B. 1616) that specific performance subverts the freedom implied by contractual agreements. Nonetheless, Holmes dissented in 1911 when the Supreme Court overturned an Alabama law that in effect used contract to bind mostly African-Americans to a form of involuntary servitude. On Holmes's response to that case, see Benno C. Schmidt Jr., "Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 2: The Peonage Cases," Columbia Law Review 82 (1982): 684-88 and my chapter 6, n. 32.

59. Lochner v. New York, 198 U.S. 45, 75, 76 (1905). For another argument stating that in order to understand Lochner we need to get out from under the progressive, New Deal reading of: it, see Bruce Ackerman, We the People (Cambridge: Harvard Univ. Press, 1991), pp. 63-67.

60. See Aviam Soifer, "The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921," Law and History Review 5 (1987): 249-79. Soifer concentrates on 13th Amendment cases in which the Court's paternalism toward women, Native Americans, and sailors is more obvious. Charles Wallace Collins claims that the 14th Amendment is the "introduction of the principle of paternalism among a people whose genius is foreign to such a political ideal." The Fourteenth Amendment and the States (Boston: Little, Brown, 1912), pp. 149-50.

61. Ben Palmer, "Hobbes, Holmes, and Hitler," American Bar Association 31 (1945): 569.

62. On the notion of historical reoccupation, see Hans Blumenberg, The Legitimacy of the Modern Age, trans. Robert Wallace (Cambridge: MIT Press, 1983). "Reoccupation," unfortunately, has connotations that make it much more passive than the German Umbesetzung, which implies a reordering as well as a reoccupation.

63. Ralph A. Newman, Equity and Law (New York: Oceana Publishing, 1961), pp. 11, 12.

64. Morton J. Horwitz, "Supreme Court: 1992 Term," Harvard Law Review 107 (1993): 34.

65. Horwitz, "1992 Term": 34.

66. Horwitz, "1992 Term": 81. For evidence that at the time of Lochner Holmes did not believe in the fundamentality of the 1st Amendment, see David M. Rabban, "The First Amendment in Its Forgotten Years, The Yale Law Journal 90 (1981), 514-95, and "The Emergence of Modern First Amendment Doctrine," The University of Chicago Law Review 50 (1983): 1205-355.

67. 163 U.S. 537 at 550 (1896). Horwitz's oversight causes him mistakenly to assume that Plessy, like Lochner, went against "a social reality that was already ... perceived by the rest of the country" ("1992 Term": 92). If Lochner brought immediate protests, Plessy raised few outside the black community. The Plessy decision might have been wrong the "day it was decided," but not because it went against the reigning construction of social reality or even fundamental traditions of United States law as understood by most ''rational and fair" men of the time. Better than Holmes, Justice Harlan provides consistent

opposition to Plessy and Lochner, since he dissented in both. He also opposed the "rule of reason" for corporate regulation.

68. Influenced by Holmes and in turn influenced him, Roscoe Pound makes an appeal to equity without natural-law principles. Recognizing that the diverse interests of the American people could not be reflected in a unified sovereign will, Pound saw "jury lawlessness" as a potential equitable corrective to "law in its actual administration." Although Pound evokes Aristotle, the basis of his equitable correction is not higher law, but the varying points of view that he finds in a ''diversified industrial society." As Gary J. Jacobsohn puts it, "Pound's appeal to Aristotle ... did not eventuate in an Aristotelian solution. For in Aristotle 'equity embodies a moral ideal and is constant and immutable.' Whereas for the Greeks the end of law was perceived in terms of the unity of the whole, for [Pound] the goal was the protection of group diversity and integrity." Pound's equitable correction works from the bottom up rather than the top down.

Holmes said of juries that they "will [and should] introduce into their verdict a certain amount—a very large amount, so far as I have observed—of popular prejudice, and thus keep the administration of the law in accord with the wishes and feelings of the community." Holmes's stress on prejudice contrasts a classical notion that correctives to written law should be based in right reason. It is revealing that, in an essay written only three years after Plessy, he demonstrates approval of law expressing the prejudiced wishes and feelings of the community. Holmes does not evoke the idea of equity. Quotations from Jacobsohn, The Supreme Court and the Decline of Constitutional Aspiration, (Totowa, N.J.: Rowan & Littlefield, 1986), pp. 29-33.

69. On "thick description," see Clifford Geertz, "Thick Description: Toward an Interpretive Theory of Culture," The Interpretations of Culture (New York: Basic Books, 1973), pp. 3-30. On its importance for legal history see Robert Gordon, "Critical Legal Histories," Stanford Law Review 36 (1984): 57-126. On the uses of James's novelistic thick description for cultural analysis, see Jean-Christophe Agnew, "The Consuming Vision of Henry James" in The Cultures of Consumption, eds. Richard Wightman Fox and T. J. Jackson Lears (New York: Pantheon, 1983), pp. 65-100.

70. Holmes, "The Path of the Law," 457-58.

71. Quoted in Virginia G. Drachman, "Women Lawyers and the Quest for Professional Identity in Late Nineteenth-Century America," University of Michigan Law Review 88 (1990): 2414.

72. Henry James, Literary Criticism: American and English Writers, vol. 1, (New York: Library of America, 1984), p. 690.

73. Walter F. Pratt Jr., "American Contract Law at the Turn of the Century," South Carolina Law Review 39 (1988): 415-63.

74. William Dean Howells, "Henry James Jr.," Selected Literary Criticism, ed. Ulrich Halfmann, vol. 1 (Bloomington: Indiana Univ. Press, 1993), p. 320.

75. James's analysis of motive keeps open a hidden affinity between contract and equity that Holmes closes off. According to Aristotle, equity bids us "not to consider the actions of the accused so much as his intentions." Aristotle, Rhetoric, p. 81.

76. See Drachman, "Women Lawyers," 2414-43 and Women Lawyers and the Origins of Professional Identity in America: The Letters of the Equity Club 1887 to 1890 (Ann Arbor: Univ. of Michigan Press, 1993).

77. George Washington Cable, "The Freedman's Case in Equity," The Century Magazine 29 (1885): 418.

1. Henry James, The Aspern Papers, vol. 12 of The Novels and Tales of Henry James (New York: Scribner's, 1908), p. 12. Future references to this work will be cited parenthetically within the text, designated as AP. The other works cited parenthetically in the text will be The Bostonians (New York: Macmillan and Co., 1886) and The Reverberator, vol. 13 of The Novels and Tales of Henry James (New York: Scribner's 1908), designated as B and R respectively.

2. J. Thomas McCarthy, The Rights of Publicity and Privacy (New York: C. Boardman, 1987), pp. 1-3.

3. Morris L. Ernst and Alan U. Schwartz, Privacy: The Right to Be Let Alone (New York: Macmillan, 1962), p. 1.

4. Griswold v. Connecticut, 381 U.S. 479 at 484 (1965).

5. Alpheus Mason, Brandeis: A Free Man's Life (New York: Viking, 1946), p. 70.

6. Samuel Warren and Louis Brandeis, "The Right to Privacy," Harvard Law Review 4 (1890): 196. The most influential account of the tort law of privacy since Warren and Brandeis is William L. Prosser, "Privacy," 48 California Law Review 383 (1960).

7. Charles Callan Tansill, The Foreign Policy of Thomas F. Bayard, 1885-1897 (New York: Fordham Univ. Press, 1940).

8. Henry James, The Letters of Henry James, ed. Leon Edel, vol. 1 (Cambridge, Mass.: Harvard Univ. Press, 1974), p. 408.

9. Mason, Brandeis, p. 46.

10. Ernst and Schwartz, Privacy, p. 47.

11. James H. Barron, "Warren and Brandeis, The Right to Privacy, 4 Harvard L. Rev. 193 (1890): Demystifying a Landmark Citation," Suffolk University Law Review 13 (1979): 875-922; Lewis J. Paper, Brandeis (Englewood Cliffs, N.J.: Prentice-Hall, 1983).

12. E. L. Godkin, "The Rights of the Citizen: IV. To His Own Reputation," Scribner's Magazine 8 (1890): 66.

13. France levied a fine of 500 francs on every publication of a fact of private life. Warren and Brandeis cite its law in "The Right to Privacy." Whether James was aware of it or not is unclear from the action of The Reverberator . On the one hand, the French papers planning to reproduce The Reverberator article must be more careful than their American counterpart about what they print. On the other, abuses open them to a "suit for defamation" (R 170).

14. Warren and Brandeis, "The Right to Privacy," 195. They cite Thomas M. Cooley, Treatise on the Law of Torts, 2d ed. Brandeis reuses the phrase thirty eight years later in his famous dissent in a governmental wiretapping case,

indicating that, for him at least, intrusions by government and private parties violate the same right. The ''right to be let alone," he asserts, is "the most comprehensive of rights and the right most valued by civilized men." Olmstead v. United States, 277 U.S. 438 at 478 (1928). James frequently describes characters who seek this right. In The Reverberator three different people or groups of people are described as wanting to be left alone. The American girl, Miss Francie, "who had not even the merit of knowing how to flirt," only ''asked to be let alone" (R 58); the French-American family thinks of itself as "quiet people who only want to be left alone" (R 197); and the son is told by his artist friend that it would be fair play for the family itself to "let [him] alone" (R 203).

15. "The Right to Privacy," The Nation, Dec. 25, 1890: 496-97.

16. "The Point of View," Scribner's Magazine, 9 (1891): 261.

17. John Dewey, The Public and Its Problems: An Essay in Political Inquiry (Chicago: Gateway Books, 1946), pp. 12-13. The book was first published in 1927.

18. Andrea Dworkin, "The Third Rape," Los Angeles Times, April 28, 1991, p. M6.

19. Richard A. Posner, "The Right to Privacy," Georgia Law Review 12 (1978): 400, 408. Posner levels another attack against the right to privacy in the introduction to his book on law and literature. See Law and Literature: A Misunderstood Relation (Cambridge, Mass.: Harvard Univ. Press, 1988), pp. 4-5.

20. Walter Benn Michaels argues that "the explicit attempt to shift privacy away from property nonetheless produced a dramatic extension of property rights, produced, in effect, new property." "The Contracted Heart," New Literary History 21 (1990): 526 n. 13.

21. Quoted in Godkin, "Reputation," 59.

22. Philip Fisher, "Appearing and Disappearing in Public: Social Space in Late-Nineteenth Century Literature and Culture," in Reconstructing American Literary History, ed. Sacvan Bercovitch (Cambridge, Mass.: Harvard Univ. Press, 1986), pp. 180, 178. For an overlapping, but different, view, see Ian F. A. Bell, "The Personal, the Private, and the Public in The Bostonians," Texas Studies in Literature and Language 32 (Summer 1990): 240-56. For an argument that Verena is a "pure token of publicity, a figure to be used in an infinity of promotions," see Jennifer Wicke, Advertising Fictions (New York: Columbia Univ. Press, 1988), p. 99.

23. Godkin, "Reputation," 65.

24. Robert C. Post, "Rereading Warren and Brandeis: Privacy, Property, and Appropriation," Case Western Law Review 41 (1991): 663.

25. Fisher, "Appearing and Disappearing," pp. 179, 180.

26. A major complication for laissez-faire thinkers was the rise of corporations. Godkin refers to railroad corporations as "those large quasi-public enterprises." Godkin, "Reputation," 63.

27. Griswold v. Connecticut, 381 U.S. 479 at 485-86 (1965).

28. E. L. Godkin, "The Labor Crisis," North American Review, 105 (1867): 183.

29. Maynard v. Hill, 125 U.S. 190 at 211 (1887). The fact that a marriage contract is a special kind of contract that does not even come under contract law in the period complicates Tony Tanner's claim that "for bourgeois society, marriage is the all-subsuming, all-organizing, all-containing contract." Adultery in the Novel: Contract and Transgression (Baltimore: Johns Hopkins Univ. Press, 1979), p. 15.

30. People v. Dawell, 25 Mich. 247 at 257 (1872).

31. See n. 14 above.

32. Amy Dru Stanley, "Conjugal Bonds and Wage Labor: Rights of Contract in the Age of Emancipation," The Journal of American History 75 (1988): 477. For problems that the legal similarities between slavery and marriage cause Stowe in Uncle Tom's Cabin, see my Cross-examinations of Law and Literature (New York: Cambridge Univ. Press, 1987), pp. 113-37.

33. Green v. State, 58 Ala. 190 (1877), cited in Michael Grossberg, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: Univ. of North Carolina Press, 1985), p. 138.

34. Quoted in Stanley, "Conjugal Bonds," 474. Woodhull's spiritualism granted her sense of the marriage contract the sanctity of a higher power as well. On feminism and spiritualism, see Ann Braude, Radical Spirits (Boston: Beacon Press, 1989).

35. It seems obvious to us today that Olive and Verena's relationship is based on homosexual rather than heterosexual attraction. I am not, however, convinced that James consciously constructed such an attraction between them. Whether he did or not does not affect my argument, which is merely that he removes from their relationship that force that determined the "natural" positions of status in marriage.

On feminist ideals of marriage, see William Leach, True Love and Perfect Union: The Feminist Reform of Sex and Society (New York: Basic Books, 1980). Leach's discussion of the feminist call for a doctrine of "no secrets" about the mysteries of marriage might seem to imply that the lack of secrets between Olive and Verena is an effort to live up to this ideal. But the "no secrets" doctrine was based on the belief that previously unspoken aspects of marriage (like sex) should be made public so as to demystify marriage and place it on a rational foundation. In contrast, the lack of secrets between Olive and Verena results from the similarity of their union to that of traditional marriage, in which, ideally, husband and wife had no secrets. Try to imagine Olive making public the details of her life with Verena.

36. Albion W. Tourgée has a character describe a law partnership as a marriage. "If lawyers are in a partnership they ought to be like husband and wife,—no secrets between them." With Gauge & Swallow, Attorneys (Philadelphia: J. B. Lippincott, 1890), p. 136.

37. Lynne Wardley, "Woman's Voice, Democracy's Body, and The Bostonians," English Literary History 56 (Fall 1989): 639-65.

38. Fisher, "Appearing and Disappearing," p. 178.

39. On Verena's spiritualism, see Susan Wolstenholme, "Possession and Personality: Spiritualism in The Bostonians," American Literature 49 (1978): 580-91, and Howard Kerr, Mediums, and Spirit-Rappers and Roaring Radicals:

Spiritualism in American Literature, 1850-1900 (Urbana: Univ. of Illinois Press, 1972), pp. 190-222.

40. Geoffrey Hartman writes that each Jamesian novel is a "story that exacts from its hero and often from the storyteller himself a contractual quid pro quo. Consciousness must be paid for, and the wages are usually sacrifice and death." Beyond Formalism, (New Haven: Yale Univ. Press, 1970), p. 55.

41. Henry James, The Aspern Papers in The Atlantic Monthly 61 (1888): 594.

42. For speculation on whether or not Miss Tina is Aspern's daughter, see Jacob Korg, "What Aspern Papers? A Hypothesis," College English 23 (1962): 378-81; James Gargano, " 'The Aspern Papers': The Untold Story," Studies in Short Fiction 10 (1973): 1-10; Bernard Richards, "How Many Children Had Juliana Bordereau?" Henry James Review 12 (1991): 120-28; and John Carlos Rowe, The Theoretical Dimension of Henry James (Madison: Univ. of Wisconsin Press, 1984), pp. 104-118.

43. For a different reading of this scene, see Rowe, Theoretical Dimension , p. 117.

44. Alfred Habegger, Henry James and the "Women Business" (New York: Cambridge Univ. Press, 1989), p. 58.

45. The Notebooks of Henry James, eds. F. O. Matthiessen and Kenneth B. Murdock, (Chicago: Univ. of Chicago Press, 1981), p. 82.

46. Habegger, Henry James, p. 248, n. 30.

47. Posnock argues that William's pragmatism cannot account for the "idle" curiosity so important for Henry. For Henry, a journalist's curiosity is not idle, nor always is the artist's or critic's. The Trials of Curiosity (New York: Oxford Univ. Press, 1991). Posnock's account of Jamesian subjectivity is similar to mine. For significant differences, see my last chapter, n. 17.

48. Godkin, "Reputation," 66.

49. Gary Scharnhorst, "James, 'The Aspern Papers,' and the Ethics of Literary Biography," Modern Fiction Studies 36 (1990): 211-17.

50. Harriet Beecher Stowe, Lady Byron Vindicated (Boston: Fields, Osgood, & Co., 1870).

51. George Knox, "Reverberations and The Reverberator," Essex Institute Historical Collections 95 (1959): 348-54.

52. The Notebooks of Henry James, p. 83.

53. Henry James Letters II, pp. 216-17. Quoted in Scharnhorst, "Ethics of Literary Biography," 213.

54. The belief that literature presented to the public was public property, entered into discussions of privacy. Godkin, for instance, quotes an English writer on jurisprudence who stresses limits to a citizen's right to reputation. "A man doing an important public act, or addressing a literary treatise to his fellow-countrymen, has no right entitling him to shut the mouths even of harsh and severe critics, even though their general intention be unkindly, but not accompanied by that vehement desire, or distinct consciousness of doing evil, which alone the law denounces." Godkin, "Reputation," 63. Clearly, the writer is using "literary" here more broadly than our present use, which links it to aesthetic productions. My discussion in section VIII of the fact that James's

notion of aesthetic privacy depends on the idea that it is not possible to reduce a work of literature to ideas, suggests reasons why a certain notion of privacy and a particular notion of the literary arise in conjunction with one another.

55. While planning The Bostonians James recorded in his notebook, "There must be a type of newspaper man—the man whose ideal is the energetic reporter. I should like to bafouer the vulgarity and hideousness of this—the impudent invasion of privacy—the extinction of all conception of privacy, etc." The Notebooks of Henry James, p. 47.

56. For a fascinating reading see, Matei Calinescu, "Introducing Secrecy: Henry James's 'The Private Life,'" in Rereading (New Haven: Yale Univ. Press, 1993): 227-38.

57. Warren and Brandeis, "The Right to Privacy," 211.

58. See, for instance, Jean Fagan Yellin's remark: "Because James's young heroine Verena is essentially selfless, there is never any possibility that she will achieve autonomy." Women & Sisters: The Antislavery Feminists in American Culture (New Haven: Yale Univ. Press, 1989), p. 164.

59. Alfred Habegger, "The Disunity of The Bostonians," Nineteenth-Century Fiction 24 (1969): 193-209.

60. C. B. Macpherson, The Political Theory of Possessive Individualism (New York: Oxford Univ. Press, 1962). For a powerful feminist supplement to Macpherson's argument, see Carole Pateman, The Sexual Contract (Stanford: Stanford Univ. Press, 1988).

61. On the novel and Reconstruction, see Theodore C. Miller, "The Muddled Politics of The Bostonians," Georgia Review 26 (1972): 336-46; Barry Meinikoff, "A House Divided: A New Reading of The Bostonians," CLA Journal 20 (1977): 459-74; and Kenneth W. Warren, Black and White Strangers (Chicago: Univ. of Chicago Press, 1993), pp. 93-101.

1. Works that will be cited parenthetically within the text are: John Hay, The Bread-Winners: A Social Study (New York: Harper & Brothers, 1883), designated as BW; Henry James, The Bostonians. A Novel (New York: Macmillan and Co., 1886), designated as B; and Elizabeth Stuart Phelps, The Silent Partner: A Novel, afterward by Mari Jo Buhle and Florence Howe (Old Westbury, N.Y.: The Feminist Press, 1983), designated as SP.

2. Vernon Louis Parrington, Main Currents in American Thought: The Beginnings of Critical Realism in America, vol. 3 (New York: Harcourt and Brace, 1930), p. 173.

3. Susan K. Harris, Nineteenth-Century American Women's Novels (New York: Cambridge Univ. Press, 1990), p. 193. An unsigned 1871 review claimed that "if one-half of [Phelps's] picture is accepted as true," it provides a "terribly needed lesson" to New England mill-owners and Pennsylvania mine-owners. Harper's New Monthly Magazine 43 (1871): 301.

4. Louis Hartz, The Liberal Tradition in America (New York: Harcourt Brace, 1955); Gordon S. Wood, The Creation of the American Republic (Chapel

Hill: Univ. of North Carolina Press, 1969); and J. G. A. Pocock, The Machiavellian Moment (Princeton: Princeton Univ. Press, 1975). See also chapter 2, n. 58.

5. Quoted in Paul C. Nagel, This Sacred Trust (New York: Oxford Univ. Press, 1971), pp. 292-93, 250.

6. Herbert Hovenkamp, "The Political Economy of Substantive Due Process," Stanford Law Review 40 (1988): 403-4.

7. Ann Braude, Radical Spirits (Boston: Beacon Press, 1989), p. 6.

8. Howard Kerr, Mediums and Spirit-Rappers, and Roaring Radicals (Urbana: Univ. of Illinois Press, 1972), p. 220.

9. C. B. Macpherson, The Political Theory of Possessive Individualism (New York: Oxford Univ. Press, 1962), pp. 219-20.

10. Sacvan Bercovitch has argued most persuasively about the power of liberal thought in the United States to sustain itself by deferring rather than resolving contradictions. See The American Jeremiad (Madison: Univ. of Wisconsin Press, 1978), and The Office of "The Scarlet Letter" (Baltimore: Johns Hopkins Univ. Press, 1991). Bercovitch, however, does not engage the debate between republicanism and liberalism. He more or less assumes the triumph of liberalism over republicanism during the age of Jackson. In The Office he refers to "the dynamics of cohesion in the movement from republican to Jacksonian America" (xv).

11. See Christopher Lasch, The True and Only Heaven (New York: W. W. Norton & Co., 1991).

12. Pocock, Machiavellian Moment, p. 461.

13. James Fenimore Cooper, The Chainbearer; or The Littlepage Manuscripts, vol. 1 (New York: Burgess, Stringer, 1845), pp. 171-72.

14. "Clarence Hay's Introduction to the 1916 Edition," in The Bread-Winners, ed. Charles Vandersee (New Haven: College & University Press, 1973), p. 64. Vandersee superbly places the novel in its historical and critical context.

15. Field's citation of Smith is from the famous Slaughter-House Cases, 83 U.S. (16 Wall) 36, at 110 (1873).

16. Editorial, Philadelphia Record, 15 July 1884. On this belief, see Daniel T. Rogers, The Work Ethic in Industrial America, 1850-1920 (Chicago: Chicago Univ. Press, 1978), pp. 35-36.

17. William Dean Howells, " The Bread-Winners," Selected Literary Criticism, ed. Ulrich Halfmann, vol. 1 (Bloomington: Indiana Univ. Press, 1993), p. 334.

18. Howells, " The Bread-Winners, " p. 334.

19. Quoted by Louis E. Wolcher, "The Privilege of Idleness: A Case Study of Capitalism and the Common Law in Nineteenth Century America," The Journal of American Legal History 36 (1992): 237.

20. William Graham Sumner, What Social Classes Owe to Each Other (New York: Harper & Brothers, 1883), p. 15.

21. Pocock, Machiavellian Moment, p. 523.

22. Quoted in Nagel, Sacred Trust, p. 292.

23. Jean-Jacques Rousseau, Politics and the Arts. Letter to M. D'Alembert on the Theatre, trans. Allan Bloom (Ithaca: Cornell Univ. Press, 1960), pp. 79, 80-81. On Rousseau's letter, see Lionel Trilling, Sincerity and Authenticity (Cambridge: Harvard Univ. Press, 1975), and Philip Fisher, "Acting, Reading, Fortune's Wheel: Sister Carrie and the Life History of Objects" in American Realism , ed. Eric Sundquist, (Baltimore: Johns Hopkins Univ. Press, 1982), pp. 259-77.

24. John William Ward, Andrew Jackson, Symbol for an Age (New York: Oxford Univ. Press, 1962); Arthur M. Schlesinger Jr., The Age of Jackson (Boston: Little, Brown, 1945); and Marvin Meyers, The Jacksonian Persuasion (Stanford: Stanford Univ. Press, 1957).

25. Rousseau, Politics, p. 109.

26. Jean-Jacques Rousseau, Emile or on Education, trans. Allan Bloom, (New York: Basic Books, 1979), p. 408.

27. Rousseau explains that when women "seek for men's looks, they are already letting themselves be corrupted by them." Politics, p. 83.

28. William Dean Howells, quoted in Charles Vandersee, "Introduction," p. 29.

29. For James's response to Hay's novel, see George Monteiro, Henry James and John Hay (Providence: Brown Univ. Press, 1965), pp. 39-40. It is not clear whether James was one of a few, including Howells, who knew that Hay wrote the book. Monteiro does, however, point out that Hay was in London for the summer of 1882, with portions of the novel. There is evidence that Howells may have read them. James may have done so also, but there is no evidence that he did. What is clear is that he was working on The Bostonians when The Bread-Winners appeared to much applause.

30. Harris, Women's Novels, p. 196.

31. Harris, Women's Novels, p. 195.

32. For a positive judgment of the novel's aesthetic value and a discussion of its relation to the period's religious beliefs, see Paul A. Carter, The Spiritual Crisis of the Gilded Age (Dekalb: Northern Illinois Univ. Press, 1971), pp. 73-77.

33. Judith Fetterly, "'Checkmate': Elizabeth Stuart Phelps's The Silent Partner," Legacy 3 (1986): 17-29. On the back cover of the Feminist Press paperback edition, Fetterly notes that Phelps raises the question: "How does one communicate in a world where language has been debased, even rendered meaningless, by the reliance of power on dishonesty?" Phelps's answer, I have argued, is that our messages can be truly translated only when we become agents through whom God, our silent partner, can speak.

By imposing upon Phelps late twentieth-century liberal views, Phillip Brian Harper also misreads the strike scene. "Thus, Perley's impulse to reform is developed through her growing sense of the relation between the condition of the mill workers and her own rather more comfortable existence, which she actually comes to use as an index of the wrongs suffered by the workers. The consciousness that she thus develops (though it seems to slip in a way that betrays the entrenchedness of her class conditioning during her effort to mollify

the workers when they consider striking over a cut in wages) influences her to eschew marriage altogether and devote her life to personal efforts at reform within the mills, which she undertakes as a means to realize her rather naive utopian vision of social equality among the classes." "Fiction and Reform II," The Columbia History of the American Novel, ed. Emory Elliott (New York: Columbia Univ. Press, 1991), p. 227.

In contrast, Amy Schrager Lang offers a sophisticated discussion of class in the novel. Recalling how evocations of wage slavery entered the debate between labor and capital, she points out how the factory worker Sip is figured as dark, thus evoking the moral force of arguments against chattel slavery on behalf of labor reform. But she also recognizes that for Phelps, class divisions become as naturalized as racial ones. Concluding that for Phelps, "Class divisions are ... irremediable except by supernatural intervention" (284), she argues that the narrator's position and eventually Perley's become that of the emerging middle class. It is important to add, however, that not all in the emerging middle class shared Phelps's supernatural faith. Determining the novel's point of view, that faith helps to account for differences between her fiction and works of realism. See "The Syntax of Class in Elizabeth Stuart Phelps's The Silent Partner," in Rethinking Class, eds. Wai-Chee Dimock and Michael T. Gilmore (New York: Columbia Univ. Press, 1994), pp. 267-85.

34. Elizabeth Stuart Phelps, "Why Shall They Do It?" Harper's Monthly 35 (1867): 219. See Susan Albertine, "Breaking the Silent Partnership: Businesswomen in Popular Fiction," American Literature 62 (1990): 238-61.

35. Elizabeth Stuart Phelps, The Gates Ajar (Boston: James Osgood and Co., 1869).

36. Elizabeth Stuart Phelps, "Women's Views of Divorce," The North American Review 150 (1890): 128, 130, 131, 129.

37. Douglas C. Baynton, " 'A Silent Exile on This Earth': The Metaphorical Construction of Deafness in the Nineteenth Century," American Quarterly 44 (1992): 216-43.

38. Erich Auerbach, Mimesis (Princeton: Princeton Univ. Press, 1953). See especially the chapter "Fortunata," pp. 24-49.

39. Nancy Schnog, " 'The Comfort of My Fancying': Loss and Recuperation in The Gates Ajar," Arizona Quarterly 49 (1993): 40-41.

40. John Stuart Mill, On Liberty (Arlington Heights, Ill.: Crofts Classics, 1947), pp. 63, 10, 63.

41. Laurence Holland, The Expense of Vision (Princeton: Princeton Univ. Press, 1964).

42. Albion W. Tourgée has a minister stop a strike in Murvale Eastman: Christian Socialist (New York: Fords, Howard, & Hulbert, 1890). A strike is also put down and social order restored in Thomas Bailey Aldrich, The Stillwater Tragedy (Boston: Houghton, Mifflin, and Co., 1880), and Paul Leicester Ford, The Honorable Peter Stirling and What People Thought of Him (New York: Henry Holt & Co., 1894). In Aldrich's work, an Italian immigrant, whose rhetoric is more powerful than his reason, causes the strike. When order is restored, he takes his family back to Italy where, according to the narrator, it is better off. In Ford's, Peter, who is loosely based on Grover Cleveland, leads the

militia against strikers with whom he has great personal sympathy. His action is Ford's way of justifying Cleveland's response to the Pullman workers' strike.

43. For translation and agency in Howells, see the brief discussion of A Hazard of New Fortunes in the final chapter.

1. William Dean Howells, The Rise of Silas Lapham (Bloomington: Indiana Univ. Press, 1971), p. 163. Future references to this edition will be cited parenthetically and designated as SL. Other texts by Howells cited parenthetically are The Minister's Charge; or The Apprenticeship of Lemuel Barker (Bloomington: Indiana Univ. Press, 1978), designated as MC; and A Hazard of New Fortunes (Bloomington: Indiana Univ. Press, 1976), designated as HNF.

2. Thomas G. Tanselle, "The Architecture of The Rise of Silas Lapham," American Literature 27 (1966): 434, and Wai-chee Dimock, "The Economy of Pain: The Case of Howells," Raritan 9 (1990): 113.

3. Dimock, "Economy," 112-13.

4. See Dennis E. Curtis and Judith Resnick, "Images of Justice," Yale Law Journal 96 (1987): 1727-72.

5. Thomas Galt Peyser, "Those Other Selves: Consciousness in the 1890 Publications of Howells and the James Brothers," American Literary Realism 25 (1992): 25.

6. Everett Carter, Howells in the Age of Realism (Philadelphia: Lippincott, 1954), p. 154. Carter mistakenly concludes of Silas Lapham that "the moral scheme envisioned by this work was ill-served by the simplicity of the book's structure" (164).

7. Donald Pizer, "The Ethical Unity of The Rise of Silas Lapham," American Literature 32 (1960): 322-27.

8. Donald E. Pease, introduction to New Essays on "The Rise of Silas Lapham, ed. Donald E. Pease (New York: Cambridge Univ. Press, 1991), p. 20.

9. Pease, New Essays, p. 20.

10. On residual, dominant, and emergent, see Raymond Williams, Marxism and Literature (New York: Oxford Univ. Press, 1977). Examples of the use of uneven development are Mary Poovey, Uneven Developments: The Ideological Work of Gender in Mid-Victorian England (Chicago: Univ. of Chicago Press, 1988) and Wai-Chee Dimock, "Uneven Development: American Realism and Cultural History," REAL 11 (1995): 103-17.

11. Dominick LaCapra, Emile Durkheim (Ithaca: Cornell Univ. Press, 1972), p. 108.

12. Marxism is not the only form of economic determinism. Charles Beard had his own in An Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1913), and much of the new historicist attention to the logic of the market provides another version.

13. For a use of the notion of relative autonomy prior to Althusser, see Jean-Paul Sartre, Search for a Method, trans. Hazel E. Barnes (New York: Vintage Press, 1968), pp. 48, 66, 111.

14. On Lukàcs's and temporality, see Paul de Man, "Georg Lukacs's Theory of the Novel," in Blindness and Insight (New York: Oxford Univ. Press, 1971), pp. 51-59. For "police academy" critics, see chapter 2, p. 14.

15. On Heidegger's Verwindung see Gianni Vattimo, The End of Modernity, trans. Jon R. Snyder (Cambridge: Polity Press, 1988). Vattimo uses Verwindung to characterize a postmodern era, one that is "post-historical." My use of Verwindung to describe an effect of Howells's novels suggests that Verwindung need not indicate an end to modernity. Indeed, we might need to rethink what we mean by modernity. Not all notions of modernity need be teleological. See, for instance, Hans Blumenberg, The Legitimacy of the Modern Age, trans. Robert Wallace (Cambridge: MIT Press, 1983). According to my reading, Howells's realism is intricately linked to a modern sense of temporality as described by both Blumenberg and Koselleck. (See n. 36.) This modern sense of temporality should not be confused with literary "modernism."

16. Tanselle, "Architecture," 482-83.

17. Dimock, "Economy," 110, 111, 111, 111, 119.

18. Dimock, "Economy," 109.

19. Amy Stanley, "Conjugal Bonds and Wage Labor: Rights of Contract in the Age of Emancipation," The Journal of American History 75 (1988): 471-500.

20. For an 1884 discussion, see "A Husband's Right to His Wife's Services," The American Law Journal 1 (1884): 422-23.

21. Elizabeth Cady Stanton, "The Need for Liberal Divorce Laws," North American Review 139 (1884): 220-42. For critical and historical studies, see James Harwood Barnett, Divorce and the American Divorce Novel, 1858-1937 (Philadelphia: Univ. of Pennsylvania Press, 1939); Elaine Tyler May, Great Expectations: Marriage and Divorce in Post-Victorian America (Chicago: Chicago Univ. Press, 1980); and George R. Uba, "Status and Contract: The Divorce Dispute of the 'Eighties and Howells' A Modern Instance," Colby Library Quarterly 19 (1983): 78-89.

22. For a clarification of the legal status of marriage at the time of Silas Lapham, see Joel Bishop, Commentaries on the Law of Marriage and Divorce and Evidence, Practice, Pleading, and Forms, 6th ed., vol. 2 (Boston: Little, Brown, 1881) and M. S. Robinson, Marriage and Divorce (Chicago: M. S. Robinson, 1884). The laws of marriage and divorce vary from state to state.

23. Sir Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society and Its Relation to Modern Ideas, 10th ed. (1861; reprint, New York: Dorset, 1986), p. 104.

24. William Graham Sumner, What Social Classes Owe to Each Other (New York: Harper & Brother, 1883), pp. 17, 14, 18.

25. Silas's decision to cut off support for Zerrilla's husband might seem to be dictated by the logic of an economy of pain, since once again two benefit while one is left out. But pain has little to do with Silas's decision. Zerrilla's mother will continue to suffer because of her alcoholism as much as Zerrilla's husband continues to suffer because of his. Silas draws the limit in this case in terms of immediate blood relations to Jim.

26. For a recent account that suffers from arguing that realism is a naive attempt to imitate life, see Michael Davitt Bell, The Problem of American Realism (Chicago: Univ. of Chicago Press, 1993).

27. Leo Bersani, A Future for Astyanax (Boston: Little, Brown, 1976), and "The Subject of Power," Diacritics (1977): 2-21.

28. Walter Benn Michaels, The Gold Standard and the Logic of Naturalism (Berkeley: Univ. of California Press, 1987), p. 42.

29. Gyorgy Lukàs, "Narrate or Describe?" in Writer and Critic and Other Essays (London: Merlin Press, 1970), pp. 110-48.

30. Michaels, Gold Standard, p. 46.

31. Corey's position is even more conservative. The house discussed is Mrs. Corey's. " My ancestral halls," he insists, "are in Salem, and I'm told you couldn't drive a nail into their timbers" (SL 192). Salem declined as Boston took away its commerce.

32. Michaels, Gold Standard, p. 36.

33. William Dean Howells, "Novel-Writing and Novel-Reading," Selected Literary Criticism, Ronald Gottesman, vol. 3 (Bloomington: Indiana Univ. Press, 1993), p. 222.

34. The debate over the value of sentimental fiction is too often seen as an issue of gender. But sentimentalism was not confined to women nor women to sentimentalism. One author of the titles I cite is male; one is female. E. P. Roe, Barriers Burned Away (New York: Dodd, Mead & Co., 1872) and Elizabeth Stuart Phelps, Gates Ajar (Boston: James Osgood, 1869).

35. Unlike Michaels, I would not classify Sister Carrie as sentimental. It is, however, a work of naturalism in which agency is more mechanical than in Silas Lapham .

36. For Howells's complication of people's noble efforts to take principled stands, see the brief discussion of A Hazard of New Fortunes in the final chapter.

37. Reinhart Koselleck, Futures Past, trans. Keith Tribe (Cambridge: MIT Press, 1985).

38. William Dean Howells, "Novel-Writing and Novel-Reading," p. 223.

39. Howells seems to conflate the novel and the sermon when he writes, "Let all the hidden things be brought into the sun, and let every day be the day of judgment. If the sermon cannot any longer serve this end, let the novel do it." But this statement does not urge the novelist to preach to his audience. In the same essay Howells warns that he should "not aim to instruct." His point is that judgment will follow if the novelist is not afraid to treat all sorts of subject matter, even the repressed ones of a society. If the novel takes over a function of the sermon, it accomplishes it in a different manner. William Dean Howells, "Novel-Writing and Novel-Reading," pp. 228, 221.

40. Nicholas St. John Green, "Proximate and Remote Cause," American Law Review 4 (1870): 211. See Morton J. Horwitz, "The Doctrine of Objective Causation," in The Politics of Law, ed. David Kairys (New York: Pantheon Books, 1982), pp. 201-13.

41. Thomas L. Haskell, "Capitalism and the Origins of Humanitarian Sensibility," Parts 1 and 2, in The Antislavery Debate, ed. Thomas Bender (Berke-

ley: Univ. of California Press, 1992), pp. 107-60. For literary critics' use of Haskell, see Dimock, ''Economy,'' and Clare Virginia Eby, " The Octopus: Big Business as Art," American Literary Realism 26 (1994): 33-51. For a criticism of the doctrine of human sympathy in the law, see "Sympathy as a Legal Structure," Harvard Law Review 105 (1991): 1961-80.

42. Morton G. White, Social Thought in America: The Revolt Against Formalism (New York: Oxford, 1949).

43. Green, "Proximate and Remote Cause," 211. The rejection of metaphor by many legal realists suggests a way to distinguish them from adherents of the critical legal studies movement. Those in critical legal studies are generally more attuned to the importance of metaphor, and therefore rhetoric, in the law. For instance, their reliance on literary theory to study the law evokes the displeasure of some members of the law and society movement, whose dependence on the social sciences remains more indebted to legal realism. At the same time, some "in" critical legal studies, according to my distinction, would be more accurately labeled realists.

44. For Michaels to argue that he does, undercuts his claim that Howells's doctrine of realism as life offers no models. If Howells endorses agrarian values, he clearly offers them as a model for how to act. Indeed, Michaels associates Howells with the "genteel/progressive view" that "important works of art" are capable of "transcending or opposing the market" because he supposedly partakes of such moralism (Michaels, Gold Standard, p. 14, n. 16).

45. Andrew Delbanco, "Howells and the Suppression of Knowledge," The Southern Review 19 (1983): 771.

46. Charles W. Eliot, The Conflict between Individualism and Collectivism in a Democracy (Charlottesville: Barbour-Page Foundation, 1910), p. 15.

47. Pease, New Essays, p. 21.

48. Howells is not, in other words, one of those who, as Howard Horwitz argues, saw in the trust the possibility for a transcendental, corporate structure of agency. Instead, for him corporations were constituted by discrete individuals bound together by contractual relations. Howard Horwitz, "The Standard Oil Trust as Emersonian Hero," Raritan 6 (1987): 97-119.

49. G. W. F. Hegel, Lectures on the Philosophy of History, tr. J. S. Bree (New York: Colonial Press, 1900) pp. 85-88.

50. Numerous works at the end of the century conclude with characters thinking about or participating in opening foreign markets. Tourgée's protagonist in A Fool's Errand goes to South America. Henry Adams's Virginia lawyer in Democracy goes to Latin America. Robert, Edna's "lover" in Chopin's The Awakening, goes to Mexico. Farnham in Hay's The Bread-Winners contemplates going to Japan because "at the present rate of progress there is not more than a year's purchase of bric-a-brac left in the empire. I must hurry to get my share." John Hay, The Bread-Winners (New York: Harper & Brothers, 1883), p. 314.

51. David Crocker, "Functioning and Capability: The Foundations of Sen's and Nussbaum's Developmental Ethic," Political Theory 20 (1992): 584-612.

52. Joel Porte sees Howells's "wobbling point of view ... caused presumably by Howells' own social anxieties" as "one of his great formal weaknesses

as a novelist." "Manners, Morals, and Mince Pie: Howells' America Revisited," Prospects 10 (1987): 447. I see his point of view as being calculated to create effects on his readers that cannot be accounted for totally by irony, as Arlene Young attempts to do in "The Triumph of Irony in The Rise of Silas Lapham, " Studies in American Fiction 20 (1992): 45-55. Janet Holmgren McKay details Howells's point of view in relation to James and Twain in Narration and Discourse in American Realistic Fiction (Philadelphia: Univ. of Pennsylvania Press, 1982).

53. Howells warns that good intentions do not necessarily control outcomes. As Sewell puts it, "We must beware of the refined selfishness which shrinks from righteous self-assertion because it is painful" (MC 324).

54. Fritz Oehlschager, "An Ethic of Responsibility in The Rise of Silas Lapham," American Literary Realism, 1870-1910 23 (1991): 20-34, and Kermit Vanderbilt, introduction to The Rise of Silas Lapham, by William Dean Howells (New York: Penguin, 1986), pp. vii-xxviii. Vanderbilt is especially well-tuned to the complications that Howells presents to anyone seeking to make certain moral judgments about his characters.

1. Texts by Charles W. Chesnutt cited parenthetically within the chapter are: The House Behind the Cedars (Boston: Houghton Mifflin & Co., 1900), designated as HBC; The Marrow of Tradition (Boston: Houghton Mifflin & Co., 1901), designated as MT; and The Colonel's Dream (New York: Doubleday, Page & Co., 1905), designated as CD. Those by William Dean Howells are: The Shadow of a Dream and An Imperative Duty, introduction by Martha Banta (Bloomington: Indiana Univ. Press, 1970), designated as ID; and The Rise of Silas Lapham (Bloomington: Indiana Univ. Press, 1971), designated as SL. Those by Albion W. Tourgée are: An Appeal to Caesar (New York: Fords, Howard, & Hulbert, 1884), designated as ATC; The Invisible Empire, introduction by Otto H. Olsen (Baton Rouge: Louisiana State Univ. Press, 1989), designated as IE; and With Gauge & Swallow, Attorneys (Philadelphia: J. B. Lippincott, 1890), designated as GS.

2. William Dean Howells, "A Psychological Counter-Current in Recent Fiction," North American Review 172 (1901): 873.

3. Contemporary African-American responses to Howells's treatment of race varied. W. E. B. Du Bois paid tribute to Howells in the Boston Transcript, 14 February 1912, pt. III, p. 2. Julia Cooper, a Washington, D.C., high school teacher, charged that "he had no business to attempt a subject of which he knew so little, or for which he cared so little." A Voice from the South (1892), quoted in David Shi, Facing Facts (New York: Oxford Univ. Press, 1994), p. 201.

4. William L. Andrews, The Literary Career of Charles W. Chesnutt (Baton Rouge: Louisiana State Univ. Press, 1980), pp. 163, 164, 166. Implying that a longer study is in the works, Richard H. Brodhead devotes a chapter to Chesnutt in Cultures of Letters, (Chicago: Univ. of Chicago Press, 1993), pp.

177-210. Eric J. Sundquist offers a superb analysis of Chesnutt in "Charles Chesnutt's Cakewalk," To Wake the Nations (Cambridge, Mass.: Belknap Press, 1993), pp. 271-454. Sundquist concentrates mostly on the short stories and The Marrow of Tradition, whereas I focus on The House Behind the Cedars and the neglected The Colonel's Dream . I hope that my synchronic examination of Chesnutt in relation to contemporaries treating issues other than race complements Sundquists's diachronic examination of him within a tradition of writers dealing with race.

5. Quoted in Harriet Beecher Stowe, A Key to Uncle Tom's Cabin (Boston: John P. Jewett, 1853), p. 78. For Stowe's use of the case, see my Cross-examinations of Law and Literature (New York: Cambridge Univ. Press, 1987), pp. 8, 117-19, 133-34. James Boyd White includes the decision in The Legal Imagination (Boston: Little, Brown, 1973), pp. 451-54.

6. Howells, "A Psychological Counter-Current," 882.

7. George W. Cable, "The Freedman's Case in Equity," The Century Magazine 29 (1885): 409-18.

8. Charles W. Chesnutt, "The Disfranchisement of the Negro," in The Negro Problem (New York: James Pott & Co., 1903), p. 124.

Sterling Brown concludes of Chesnutt, "Answering propaganda with propaganda, he might be expected to have certain faults.... He was melodramatic in plotting, but evidence of a skilled master's hand can still be found. He knew a great deal, and all things considered, he told it well." Of Howells's An Imperative Duty, he remarks, "The novel is sympathetic, but there were graver, less romantic problems of Negro life that a novelist of Howells' scope and ability might have presented." The Negro in American Fiction (Washington, D.C.: Associates in Negro Folk Education, 1937), pp. 76, 82.

9. William L. Andrews, foreword to The House Behind the Cedars (Athens: Univ. of Georgia Press, 1988), pp. vii-xxii.

10. Chesnutt possibly alludes to Plessy v. Ferguson, which declared that in deciding whether a law was a reasonable regulation, a legislature "is at liberty to act with reference to established usages, customs and traditions of the people." Plessy v. Ferguson 163 U.S. 537, 550 (1896). See also n. 48 of this chapter.

11. By emphasizing how John's and Rena's black descent is not immediately visible, Chesnutt counters the stereotypical view expressed by his racist Dr. Green that "God has marked [the negro] with the badge of servitude" (HBC 136). But Chesnutt's point of view on the stamp of descent is complicated. As a way of pointing out the high hereditary quality of some people of color, he insists that John's features were of "the high-bred, clean-cut order that marks the patrician type the world over" (HBC 167).

12. Chesnutt anticipates Jürgen Habermas's argument for the right to "cultural membership": the "right to develop and maintain" one's identity in the life and traditions into which one was born without a loss of status in civil society. Habermas also argues for the right to break from such membership, if one finds it constraining. "Multiculturalism and the Liberal State," Stanford Law Review 47 (1995): 850.

13. Howells's North-South marriage plot in A Hazard is striking, given

Basil March's questioning of the "demand for matrimony" that "comes from our novel-reading." A Hazard of New Fortunes (introduction by Everett Carter, Bloomington: Indiana Univ. Press, 1976), p. 479.

14. Quoted in Paul M. Gaston, The New South Creed (New York: Alfred A. Knopf, 1970), p. 85.

15. Thomas Bailey Aldrich, The Poems of Thomas Bailey Aldrich (Houghton, Mifflin and Co., 1885), pp. 210-11.

16. Henry W. Grady, "The New South," in The Life of Henry W. Grady, Including His Writing and Speeches, ed. Joel Chandler Harris, (1890; reprint, New York: Haskell House Publishers, 1972), p. 92. In The Colonel's Dream Grady had lectured at Clarendon's opera house, while Booker T. Washington had been refused (CD 197).

17. Grady, "The New South," p. 88. For an excellent examination of Grady's use of metaphors of currents in his description of racial blood and its implications for Twain's Huckleberry Finn, see Steve Mailloux, Rhetorical Power (Ithaca: Cornell Univ. Press, 1989), 65-69.

18. Kenneth W. Warren offers a reading of James's 1882 story "The Point of View" to document James's anxieties about issues of race. Critical of The Bostonians as well, he nonetheless admits that it "proved to be a devastatingly accurate reading of the period." Black and White Strangers (Chicago: Chicago Univ. Press, 1993), p. 93. For more on Warren, see the next chapter, especially n. 49.

19. On magazine stories about the Civil War and the figurative marriage between North and South, see Kathleen Diffley, Where My Heart Is Turning Ever: Civil War Stories and Constitutional Reform, 1861-1876 (Athens: Univ. of Georgia Press, 1992). Novels that marry Southerners and Northerners include Henry Adams's Democracy, Owen Wister's The Virginian, and Thomas Dixon's The Clansman .

20. John David Smith, An Old Creed for the New South: Proslavery Ideology and Historiography, 1865-1918 (Westport, Conn.: Greenwood Press, 1985). On how even Frederick Jackson Turner's "frontier thesis" participates in this reinterpretation, see my "Turner's 'Frontier Thesis' as a Narrative of Reconstruction," in Centuries' Ends, Narrative Means, ed. Robert Newman (Stanford: Stanford Univ. Press, 1996).

21. Quoted in Peter Novick, That Noble Dream (New York: Cambridge Univ. Press, 1988), p. 76.

22. Chesnutt's gender bias is also apparent in The Colonel's Dream when we compare Chesnutt's portrayal of a silent female partner in a corporation with that of Elizabeth Stuart Phelps's novel. Nonetheless, it is worth noting that in A Japanese Nightingale, written by a woman (Ondo Watana), the marriage of an American to a Euro-Asian woman cements the sense of brotherhood between the woman's husband and her brother. Howells favorably reviewed A Japanese Nightingale in the same article in which he reviewed Chesnutt. See "A Psychological Counter-Current in Recent Fiction." On Watana, which was the pen name of Winnifred Eaton, the daughter of a Chinese mother and an English father and the sister of Edith Maud Eaton (who wrote under the name Sui Sin

Far), see Amy Ling, Between Worlds: Women Writers of Chinese Ancestry (New York: Pergamon Press, 1990). On Chesnutt's support of female suffrage, see "Women's Rights," Crisis 10 (1915): 182-83.

23. The Journals of Charles W. Chesnutt, ed. Richard H. Brodhead, (Durham: Duke Univ. Press, 1993), pp. 139-40.

24. On such contracts, see Leon F. Litwack, Been in the Storm So Long (New York: Knopf, 1979), pp. 408-25.

25. Quoted in Benno C. Schmidt Jr., "Principle and Prejudice: The Supreme Court and Race in the Progressive Era. Part 2: The Peonage Cases," Columbia Law Review 82 (1982): 649. I am deeply indebted to Schmidt's analysis, and I borrow heavily from it. Other works to consult on the peonage question are David A. Novak, The Wheel of Servitude (Lexington: Univ. of Kentucky Press, 1978); Theodore Wilson, The Black Codes of the South (University: Univ. of Alabama Press, 1965); William Cohen, "Negro Involuntary Servitude in the South, 1865-1940: A Preliminary Analysis," Journal of Southern History 42 (1976): 31-60, and Peter Daniel, The Shadow of Slavery (Urbana: Univ. of Illinois Press, 1972). See also Tourgée's discussion (IE 56-57).

26. Quoted in Schmidt, "Principle and Prejudice," 651.

27. See Walter Benn Michaels's discussion of contractual slavery in "The Phenomenology of Contract," The Gold Standard and the Logic of Naturalism (Berkeley: Univ. of California Press, 1987), pp. 113-36.

28. John Stuart Mill, On Liberty (Arlington Heights, Ill.: Crofts Classics, 1947), p. 104.

29. On the Supreme Court's laissez-faire paternalism, see Aviam Soifer, "The Paradox of Paternalism and Laissez-Faire Constitutionalism: United States Supreme Court, 1888-1921," Law and History Review 5 (1987): 249-79, and "Status, Contract, and Promises Unkept," Yale Law Journal 96 (1987): 1916-59. The paternalism of alternatives to convict leasing is shown by the rise of the chain gang. Considered a progressive advance over a system that both artificially lowered the wages of "free" laborers and abdicated the state's responsibility to care for prisoners, chain gangs put prison labor to work for the public welfare. See Alex Lichtenstein, ''Good Roads and Chain Gangs in the Progressive South: 'The Negro Convict Is a Slave,''' The Journal of Southern History 59 (1993): 85-110. The racial politics of Progressivism in the South complicates Ernestine Williams Pickens's efforts to link Chesnutt with Progressivism. See Charles W. Chesnutt and the Progressive Movement (New York: Pace Univ. Press, 1994).

30. Quoted in Schmidt, "Principle and Prejudice," 709. Under slavery, courts had to decide whether a contract for the sale of a slave should be specifically enforced. Some ruled that it could. Others argued that the situation was no different from the sale of other chattels, unless "long family service, early association, or the like, had made the slave of particular value to one seeking specific performance." "Specific Performance of Contracts for the Sale of Goods and Chattels," The American Law Journal 2 (1885): 272.

31. Hodges v. United States, 203 U.S. 0 (1906).

32. Bailey v. Alabama, 219 U.S. 219, 231 (1911). Justice Holmes, along with Justice Lurton, dissented in Bailey, but not Reynolds . As Schmidt points

out, Holmes's dissent seems to contradict some of his views on contract in other writings. At the same time, there are many points of consistency. One relevant to my concerns is that, as in his comments on contract in "The Path of the Law," Holmes continues to assume legalistic "thin description" in contract law. He completely agrees with the majority that the race of those involved is irrelevant, although, as Schmidt points out, in Reynolds his language betrays a condescending attitude toward the black laborers involved. See chapter 2, n. 58.

33. There is clear evidence that those attacking Southern practices were concerned about its consequences for whites. Novak, Wheel of Servitude, suggests that the Roosevelt administration was sparked to action because of abuses to white immigrants (47).

34. Chesnutt reinforces the journalistic campaign against peonage and convict leasing. See Ray Stannard Baker, Following the Color Line (New York: Harper and Row, 1964), most of which appeared in the American Magazine April 1907-September 1908, and W. E. B. Du Bois, "The Spawn of Slavery: The Convict Lease System in the South," The Missionary Review of the World 14 (1901): 737-45. In addition, 1907 saw the reprint of an 1885 essay by Cable on the convict-lease system, together with "The Freedman's Case in Equity."

35. See Mark Tushnet, The American Law of Slavery, 1810-1860 (Princeton: Princeton Univ. Press, 1981).

36. "The Strike Averted," in The Short Fiction of Charles W. Chesnutt, ed. Sylvia Lyons Render (Washington, D.C.: Howard Univ. Press, 1981), pp. 386, 383, 385.

37. Henry C. Carey, Principles of Political Economy (Philadelphia: Carey, Lea & Blanchard, 1837), 40.

38. Grady, "In Plain Black and White" in The Century Magazine 29 (1884-1885): 917.

39. Grady, "Black and White," 916.

40. Raymond Williams, Marxism and Literature (New York: Oxford Univ. Press, 1977), pp. 128-35.

41. Howells, "A Psychological Counter-Current," 882.

42. John Hay, "The Foster Brothers," Harper's Monthly Magazine 39 (1869): 535-66. Hay's close friend Clarence King was known to be attracted to nonwhite women. Whether this fact accounts for Clarence Brydges's first name is impossible to know.

43. Quoted by Paul C. Nagel, This Sacred Trust (New York: Oxford Univ. Press, 1971), p. 293.

44. "The Dumb Witness" in The Conjure Woman and Other Conjure Tales, ed. Richard H. Brodhead (Durham: Duke Univ. Press), pp. 158-71. Eric Sundquist claims that the version in The Colonel's Dream "diluted" the story's import ( To Wake, p. 390). I offer a different reading.

45. "The Courts and the Negro," unpublished speech in the Fisk University archives. In "The Disfranchisement of the Negro" (1903), Chesnutt discusses Giles's appeal. Susan L. Blake argues that Chesnutt's novel dramatizes the thesis of that essay and thus points to the failure of Booker T. Washington's program for economic development. ''A Better Mousetrap: Washington's Program and The Colonel's Dream," CLA Journal 23 (1979): 49-50.

46. Giles V. Harris, 189 U.S. 475 (1903).

47. Rufus Choate, "The Importance of Illustrating New-England History by a Series of Romances Like the Waverley Novels," in The Works of Rufus Choate with a Memoir of His Life, ed. Samuel Gilman Brown, vol. I (Boston: Little, Brown, 1862), pp. 320, 343.

48. Chesnutt's response to Plessy is even more obvious in his portrayal of a Jim Crow car in The Marrow of Tradition . For an allusion to the case in The House Behind the Cedars, see n. 10 of this chapter. The role of the railroad in A Colonel's Dream is further complicated when the colonel's son and his servant, Peter, die as the result of a railroad accident. In a trial a jury decides that "there was no suggestion of blame attaching to any one; it had been an accident, pure and simple, which ordinary and reasonable prudence could not have foreseen" (CD 259).

49. Linguistic influence also flows in both directions. As the narrator notes, "the current Southern speech" was marked by "a touch" of black accent. "The corruption of the white people's speech was one element—only one—of the negro's unconscious revenge for his own debasement" (HBC 9).

50. Chesnutt's essay "What Is a White Man?" New York Independent, 30 May 1889, pp. 5-6, explicitly raises questions about the arbitrariness of defining racial purity. One of the most interesting metaphors at the time for the mixture of colors making up the human race comes in Helen Hunt Jackson's novel about a marriage between a Mexican and an Indian: Ramona . Late in the book the unsentimental Aunt Ri weaves a rag carpet for the Indian agent's wife. "It was of her favorite pattern, the 'hit or miss' pattern, as she called it: no set stripes or regular alternation of colors, but ball after ball of indiscriminately mixed tints, woven back and forth, on a warp of a single color. The constant variety in it, the unexpectedly harmonious blending of the colors, gave her delight, and afforded her a subject, too, of not unphilosophical refection." Ramona (Boston: Roberts Brothers, 1884), pp. 472-73.

1. Charles A. Lofgren, The Plessy Case (New York: Oxford Univ. Press, 1987), p. 41. My account of the Plessy case relies on Lofgren, Otto H. Olsen, Carpetbagger's Crusade: The Life of Albion Winegar Tourgée (Baltimore: Johns Hopkins Univ. Press, 1965); The Thin Disguise, ed. Otto H. Olsen, (New York: Humanities Press, 1967); and Keith Weldon Medley, "The Sad Story of How 'Separate but Equal' Was Born," Smithsonian Magazine 24 (1994): 105-17.

2. "A Grave Responsibility," The Century Magazine 29 (1884-1885):462.

3. George Washington Cable, "The Freedman's Case in Equity," The Century Magazine 29 (1885): 418.

4. Henry W. Grady, "In Plain Black and White," The Century Magazine 29 (1885): 909-17.

5. Booker T. Washington, Up from Slavery, (New York: Doubleday Page & Co., 1901), pp. 219-20. The metaphor may have been inspired by former

President Rutherford B. Hayes in a May 20, 1880, speech at Hampton Institute, where Washington was teaching. Washington also uses the metaphor in an April 30, 1885, letter to the Montgomery Advertiser asking for equal railroad accommodations for equal pay.

6. Plessy v. Ferguson, 163 U.S. 537, 543 (1896). Future references to this decision will be included parenthetically in the text and designated as P. Other works referred to parenthetically include those by Samuel Langhorne Clemens: A Connecticut Yankee in King Arthur's Court, ed. Bernard L. Stein and Henry Nash Smith (Berkeley: Univ. of California Press, 1979), designated as CY; The Love Letters of Mark Twain, ed. Dixon Wector (New York: Harper, 1942), designated as LL; and " Pudd'nhead Wilson" and "Those Extraordinary Twins, " ed. Sidney E. Berger (New York: Norton, 1980), designated as PW. The one book by William Dean Howells is: Their Wedding Journey, ed. John K. Reeves (Bloomington: Indiana Univ. Press, 1968), designated as WJ. Works by Albion Winegar Tourgée include: Murvale Eastman, Christian Socialist (New York: Fords, Howard, and Hulbert, 1890), designated as ME; Pactolus Prime (New York: Cassell and Co., 1890), designated as PP; A Royal Gentleman and Zouri's Christmas (New York: Fords, Howard, and Hulbert, 1881), designated as RG; and With Gauge and Swallow, Attorneys (Philadelphia: J. B. Lippincott, 1889), designated as GS.

7. On the Roberts case, see Jim Crow in Boston, eds. Leonard W. Levy and Douglas L. Jones, (New York: DaCapo Press, 1974). On connections with Melville, see Brook Thomas, Cross-examinations of Law and Literature, (New York: Cambridge Univ. Press, 1987).

8. Brown's precedent was Yick Wo v. Hopkins, 118 U.S. 356 (1886), which concerned the discrimination against Chinese in San Francisco. The NAACP eventually used the logic of Yick Wo as part of its strategy to fight the Plessy decision.

9. There were some exceptions that revealed the intention of the law. For instance, nurses of children of the opposite race were exempted. There were not many white nurses of black children.

10. Introducing Olsen's Carpetbagger's Crusade, C. Vann Woodward makes a rare error when he attributes the dissent to Holmes (xiii).

11. W. E. B. Du Bois, "The Strivings of the Negro People," The Atlantic Monthly 80 (1897): 195.

12. For an excellent analysis of Pudd'nhead Wilson and the Plessy case, see Eric J. Sundquist, "Mark Twain and Homer Plessy," in To Wake the Nations (Cambridge, Mass.: Belknap Univ. Press, 1993), pp. 225-70.

13. Sterling Brown, The Negro in American Fiction, (Washington, D.C.: Associates in Negro Folk Education, 1937), p. 74.

14. Theodore L. Gross, Albion Winegar Tourgée, (New York: Twayne, 1963), p. 133.

15. Sterling Brown, Negro in American Fiction, p. 75. Brown feels that Pudd'nhead "falls a great way" from Huckleberry Finn, p. 68.

16. Helen M. Chesnutt, Charles Waddell Chesnutt, (Chapel Hill: Univ. of North Carolina Press, 1952). pp. 58-59.

17. Albion Winegar Tourgée, "The South as a Field for Fiction," The Forum 6 (1888): 406, 406, 411, 411.

18. Martha Banta, introduction to The Shadow of a Dream and An Imperative Duty, by William Dean Howells (Bloomington: Indiana Univ. Press, 1970), p. v.

19. Lee Clark Mitchell, "'De Nigger in You': Race or Training in Pudd'nhead Wilson," Nineteenth-Century Literature 42 (1987): 310. For an example of recent essays concerned with this problem, see Susan Gillman and Forest G. Robinson, eds., Mark Twain's "Pudd'nhead Wilson" (Durham: Duke Univ. Press, 1990).

20. Evan Carton, " Pudd'nhead Wilson and the Fiction of Law and Custom," in American Literary Realism, ed. Eric Sundquist, (Baltimore: Johns Hopkins Univ. Press, 1982), p. 89.

21. Quoted in Olsen, The Thin Disguise, p. 83.

22. Earl F. Briden, "Idiots First, Then Juries: Legal Metaphors in Mark Twain's Pudd'nhead Wilson, " Texas Studies in Literature and Language 20 (1978): 169-80.

23. John S. Haller Jr., Outcasts from Evolution (Urbana: Univ. of Illinois Press, 1971).

24. Quoted in Lofgren, Plessy, pp. 105, 106.

25. Quoted in Lofgren, Plessy, p. 106.

26. Tourgée hoped that his book would affect the 1884 election, and he blamed mugwump support of Cleveland for undermining his educational program.

27. Mark D. Coburn, " 'Training Is Everything': Communal Opinion and the Individual in Pudd'nhead Wilson, " Modern Language Quarterly 31 (1970): 210.

28. Sherwood Cummings, Mark Twain and Science (Baton Rouge: Louisiana State Univ. Press, 1988), p. 172. Cummings's discussion of Twain's neo-Lamarckianism is first-rate, although he and I interpret its effects differently.

29. The black student was Warner McGuinn. See Mark V. Tushnet, Making Civil Rights Law (New York: Oxford Univ. Press, 1994), p. 10.

30. Hershel Parker, Flawed Texts and Verbal Icons (Evanston: Northwestern Univ. Press, 1984), p. xiv.

31. Tourgée's brief for Plessy declares, "Justice is pictured blind and her daughter, the Law, ought at least to be color-blind" (Olsen, The Thin Disguise, p. 90). In Pactolus he writes, "As [Justice] is always represented as blind-folded we may infer she is not particular about her appearance and doesn't care who sees her;—though it seems inconsistent to speak of her as a woman if that is the case" (PP 91).

32. Albion W. Tourgée, Bricks Without Straw (New York: Fords, Howard, & Hulbert, 1880), p. 35. Although Andrew Kull is unaware of this quotation, it confirms his observation that Tourgée supported versions of affirmative action that existed in his time, which were not afraid of recognizing race as a legal category, a stand that Kull argues contrasts with Justice Harlan's position. Kull also cites Wendell Phillips and Theodore Tilton's use of the color-blindness

metaphor. The Color-Blind Constitution (Cambridge: Harvard Univ. Press, 1992), pp. 119-20. Whether Kull is right about Harlan is open to debate. For a different view of Harlan's dissent, see T. Alexander Aleinikoff, "Re-Reading Justice Harlan's Dissent in Plessy v. Ferguson: Freedom, Antiracism, and Citizenship," University of Illinois Law Review 1992: 961-77. In Regents of the University of California v. Bakke (1978) Justices Brennan, White, Marshall, and Blackmun argue that we cannot "let color blindness become myopia which masks the reality that many 'created equal' have been treated within our lifetimes as inferior both by the law and their fellow citizens" (438 U.S. 265 at 327).

33. The only suggestion that Tom might operate in the interests of the black race comes early in the book when Roxy imagines him, "her nigger son, lording it amongst the whites and securely avenging their crimes against her race" (PW 4). But Tom would lord it amongst whites only so long as he remained unaware that he had black blood. His superior attitude would certainly not be a self-conscious effort to help his black brothers and sisters. As we shall see, Pactolus will also argue that Benny can do more for his race by passing as white, but Benny would do so self-consciously.

34. Carton, "Fiction," p. 93.

35. Dorothy Ross, The Origins of American Social Science (New York: Cambridge Univ. Press, 1991), p. 130.

36. Stowe's "The True Story of Lady Byron's Life," and Twain's "The Defense of Harriet Shelley" have similar views on gender roles in marriage. In an editorial for the Buffalo Express 7 September 1869, Twain defended Stowe's essay. See Mark Twain's Letters, eds. Victor Fischer and Michael B. Frank, vol. 3 (Univ. of California Press, 1992), pp. 350-51, n. 6. On the controversy over Stowe's 1869 essay, see Frank Lentricchia Jr., "Harriet Beecher Stowe and the Byron Whirlwind," Bulletin of the New York Public Library 70 (1966): 218-28. Twain cites the "Byron Scandal" in "Unburlesquable Things'' (1870), Collected Tales, Sketches, Speeches, & Essays, 1852-1890 (New York: Library of America, 1992), pp. 421-24.

37. Elizabeth Perry Hedges argues that the scene in which Huck is shocked when Jim vows to buy his wife and children out of slavery can instruct law students in the relation between language and law. "Writing in a Different Voice," Texas Law Review 66 (1988): 630-33. See also Aviam Soifer, "Reviewing Legal Fictions," Georgia Law Review 20 (1986): 886-87. Soifer stresses that Twain's novel was written after the Civil Rights Cases (1883).

38. On Twain's economic liberalism, which comes closest to Manchester Liberalism, see Louis J. Budd, Mark Twain: Social Philosopher (Bloomington: Indiana Univ. Press, 1962).

39. Twain's portrayal of Judge Driscoll most likely drew on his father John Marshall Clemens. Named after the famous chief justice from Virginia even before the justice was appointed to the Supreme Court, Twain's father was a lawyer, local judge, and justice of the peace. Kim M. Roam, "Mark Twain: Doctoring the Laws," Missouri Law Review 48 (1983): 680-718. Justice Harlan was also named after Marshall.

40. See Myra Jehlen, "The Ties That Bind: Race and Sex in Pudd'nhead Wilson, " in Gillman and Robinson, "Pudd'nhead," pp. 105-20.

41. Tourgée, "The South as a Field for Fiction," 409. Chesnutt, who was influenced by Tourgée, more effectively makes connections between the conditions of slavery and emancipation in his fiction.

42. Steven Mailloux, Rhetorical Power (Ithaca: Cornell Univ. Press, 1989), p. 102. Mailloux lists one minor exception.

43. Tourgée frequently evokes equity when writing about race. For instance, in With Gauge & Swallow he dramatizes the dilemmas that result from differing state laws about interracial marriage, and notes, "Such conduct did not seem to be exactly in consonance with the principles of universal equity" (GS 164).

44. Pac stakes out his position, which is Tourgée's, by debating the proposed Blair bill with a senator getting a shine. In 1890 the Blair bill appropriated federal money to address the high rate of illiteracy in the South. Since a large percent of those illiterate were black, it would seem that Tourgée would support it. For Tourgée, however, it was flawed because the money would be distributed to the states. Since state governments were controlled by whites, Tourgée feared that they would spend most on white schools and then use the relatively poor progress of black children to prove their intellectual inferiority. Thus, he supported an alternative bill that gave money directly to counties or townships according to the number of illiterates in each, with the appropriate amount given to black and white schools. Tourgée was probably correct in his analysis. Nonetheless, his uncompromising stand placed him in an alliance with conservative Southerners who also opposed the bill. It failed. When the country fell into an economic depression, no new bill could possibly get support.

45. Olsen, The Thin Disguise, p. 79.

46. See, for instance, Jane Tompkins, Sensational Designs (New York: Oxford Univ. Press, 1985), and Philip Fisher, Hard Facts, (New York: Oxford Univ. Press, 1985).

47. Olsen, The Thin Disguise, p. 79.

48. Quoted in Louis D. Rubin, George Washington Cable, (New York: Pegasus, 1969), pp. 218-19. Chesnutt's refused essay gave a Negro's perspective on issues of race. See Herbert F. Smith, Richard Watson Gilder, (New York: Twayne, 1970), p. 71.

49. Kenneth W. Warren, Black and White Strangers: Race and American Literary Realism (Chicago: Univ. of Chicago Press, 1993), p. 38. Like me, Warren argues that the realists tried to imagine the "consequences that would ensue from an 'extension of the field of democratic struggles to the whole of civil society and the state' [Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy (London: Verso, 1985), p. 176]" (p. 13). Nonetheless, he asserts, they retreated from those consequences when they involved race. Admiring greatly Warren's work, I have three points of difference. First, I try to distinguish the different effects that works by Howells, James, and Twain had on issues of race. Second, I try to clarify the importance of differences among social, civil, economic, and political rights. Third, I am more skeptical of the transcendental position of Tourgée. Instead, I measure the realists' retreat by the standard that Warren himself admits is enacted in their works, one that

imagines the consequences of basing the entire social order on what I have called the promise of contract. See also chapter 6, n. 18.

50. See, for instance, Amy Kaplan, The Social Construction of American Realism (Chicago: Univ. of Chicago Press, 1988) and Daniel Borus, Writing Realism, (Chapel Hill: Univ. of North Carolina Press, 1989), especially, "The Lure of Classlessness: The Antipolitics of Realism," pp. 139-82.

51. Albion W. Tourgée, Our Continent, 2 (Dec. 27, 1882): 797.

52. Albion W. Tourgée, "A Study in Civilization," The North American Review 143 (1886): 252, 253, 252.

53. Gyorgy Lukàcs, "Narrate or Describe?" in Writer and Critic and Other Essays (London: Merlin Press, 1970), pp. 110-48. Tourgée has a different distinction between realism and naturalism, which I mention in the final chapter.

54. Tourgée "Study," 253.

55. Albion W. Tourgée, Our Continent 3 (April 18, 1882): 509.

56. Albion W. Tourgée, Our Continent, 3 (Jan. 31, 1883): 155.

57. Albion W. Tourgée, "Study," 250.

58. Albion W. Tourgée, "Study," 249-50. Tourgée's complaint that the realists do not present characters who woo in "true manly fashion" complicates Michael Davitt Bell's claim that Howells's call to present the real facts of life in fiction responded to a fear that novel writing itself was considered a feminine activity in the United States. For Tourgée, at least, the absence of proper sentiment and feeling in realistic works denied true manhood. For instance, in Murvale Eastman in a chapter entitled "Too Natural for Realism'' he writes, "The 'realist' is always ready to believe anything mean; but anything decent and manly he declares at once to be unnatural" (ME 165). Bell seems to assume that sentimentalism in the period was seen as exclusively feminine. It was not. The Problem of American Realism (Chicago: Chicago Univ. Press, 1993).

59. Albion W. Tourgée "Study," 246. Tourgée's praise of Ramona implies, of course, that it is better than Uncle Tom's Cabin . Tourgée lavishes high praise on Uncle Tom's Cabin . Nonetheless, he notes the inaccuracy of Stowe's portrayal of slaves who are "in intellectual and moral qualities simply 'blacked Yankees.' " Tourgée grants that the book's effect on its white audience might have depended on such a distortion. But having read the book aloud to former slaves and listening to their responses, he was convinced that Stowe had no real understanding of slave life. It is significant that he does not publish this criticism till after Stowe's death. "The Literary Quality of 'Uncle Tom's Cabin,'" The Independent 48 (August 20, 1896): 3-4, quotation on P. 3.

60. Albion W. Tourgée, Our Continent, 3 (May 23, 1883): 669.

61. The context of March's comment generates irony. Observing a lone Southerner at a hotel in Niagara Falls, March sentimentally imagines that he used to come every year before the war, spending lavishly. He also imagines that the black waiter serving the Southerner admires him "immensely," then admits, "The impoverished slaveholder is a pathetic figure, in spite of all justice and reason; the beaten rebel does move us to compassion, and it is of no use to think of Andersonville in his presence" (WJ 95).

62. Gross, Tourgée, p. 134.

63. Everett Carter links Tourgée with the realists because of his attack on sentimental lies about the South, but he also notes that Tourgée, like Bret Harte and Edward Eggleston, succumbs to other forms of sentimentalism. I have tried to show that the realists themselves were not completely free of sentimentalism, such as Twain's views on gender. Nonetheless, there is a relative, if not absolute, difference between them and others writing at the time, a difference that Tourgée himself noticed. Howells and the Age of Realism (Philadelphia: Lippincott, 1954), PP. 79-81, 154.

64. In 1883 Gilder wrote, "Negroes constitute a peasantry wholly untrained in, and ignorant of, those ideas of constitutional liberty and progress which are the birthright of every white voter; ... they are gregarious and emotional rather than intelligent, and are easily led in any direction by white men of energy and determination." Quoted in Ray Ginger, The Age of Excess (New York: Mac-millan, 1965), P. 74.

65. Albion W. Tourgée Our Continent 3 (Feb. 7, 1883): 187. See also "Reform versus Reformation," The North American Review 132 (1881): 305-19. For a recent defense of the bureaucratic state in terms of citizen participation, see Mark Seidenfeld, "A Civic Republican Justification for the Bureaucratic State," Harvard Law Review 105 (1992): 1511-76.

Tourgée's mention of China recalls that he spoke out against anti-Chinese sentiment at its peak. Our Continent 3 (May 2, 1883): 572. See also Twain's "John Chinaman in New York" (1870), in Collected Tales, Sketches, Speeches, & Essays, 1852-1890, pp. 440-41. Tourgée's and Twain's support of Chinese is noteworthy. In contrast, in his Plessy dissent Justice Harlan refers to the Chinese as a "race so different from our own that we do not permit it to become citizens of the United States" (P 561). Two years after Plessy Harlan dissented in United States v. Wong Kim Ark (1898), which declared that someone of Chinese parents, born in the United States, is guaranteed citizenship by the 14th Amendment.

66. Thomas Haskell, The Emergence of Professional Social Science (Urban: Urbana Univ. Press, 1977), pp. 67-68.

67. On Holmes and the Metaphysical Club, see Max Fisch, "Justice Holmes, The Prediction Theory of Law, and Pragmatism," Journal of Philosophy 39 (1942): 85-97). On Holmes's pragmatism, see, among many others, Fisch, "Holmes, Pierce, and Legal Pragmatism," Yale Law journal 84 (1975): 1123-31; Frederic Rogers Kellogg, "The Making of an American Legal Philosophy,'' in The Formative Essays of justice Holmes (Westport, Conn.: Greenwood Press, 1984), PP. 3-74; Thomas C. Grey, "Holmes and Legal Pragmatism," Stanford Law Review 41 (1989): 787-870; and Richard Posner, The Problems of jurisprudence (Cambridge: Harvard Univ. Press, 1990). Not everyone agrees that Holmes was a pragmatist. The most powerful dissenter is Yosal Rogat, who takes issue with Morton White's link between Holmes and Dewey. "The Judge as Spectator," The University of Chicago Law Review 31 (1964): 251-53, n. 194. H. L. Pohlman claims that Holmes was a utilitarian, in Justice Oliver Wendell Holmes and Utilitarian jurisprudence (Cambridge: Harvard Univ.

Press, 1984), Patrick J. Kelley that he was a positivist in "Was Holmes a Pragmatist? Reflections on a New Twist to an Old Argument," Southern Illinois University Law journal 14 (1990): 427-67.

The argument demonstrates how difficult it is to fit a complicated figure like Holmes under one label. It also shows how important it is for people claiming to be the true inheritors of the pragmatic tradition to decide whether or not Holmes is within that tradition. My own position is that, although his thought cannot be contained by what neopragmatists identify variously as the true legacy of pragmatism, Holmes was clearly influenced by pragmatic thinkers and helped to influence them. Holmes's pragmatic streak helps to clarify distinctions among classical republicanism, liberalism, mugwump reformism, and progressivism. Such distinctions are useful to help us chart historical transformations, even if no one thinker perfectly represents any one brand of thought. For instance, Holmes's formalization of contract reveals his positivism.

68. Robert Gordon, "Legal Thought and Legal Practice in the Age of American Enterprise, 1870-1920," in Professions and Professional Ideologies in America, ed. Gerald L. Geison (Chapel Hill: Univ. of North Carolina Press, 1983), PP. 70-110.

69. R. Jackson Wilson, In Quest of Community (New York: John Wiley, 1968), P. 43.

70. Charles Sanders Peirce, "The Fixation of Belief," in Classic American Philosophers, ed. Max H. Frisch (Englewood Cliffs: Prentice-Hall, 1951), PP. 62, 63.

71. Oliver Wendell Holmes Jr., The Common Law, ed. Mark De Wolfe Howe (Cambridge: Harvard Univ. Press, 1963), P. 5.

72. See Lofgren, Plessy, especially "The Intellectual Environment: Racist Thought in the Late Nineteenth Century," pp. 93-115. See also Robin West's use of Pudd'nhead Wilson to point out the fallacies in Owen Fiss's and Ronald Dworkin's appeals to interpretive communities. In this same essay she somewhat mistakenly refers to Stanley Fish's "subjective interpretivism," but uses John Barth's The Floating Opera to engage Fish. I am implying that Plessy and Pudd'nhead should make us reconsider the limitations of Fish's pragmatically derived notion of interpretive communities and his defense of professionalism. "Adjudication Is Not Interpretation: Some Reservations about the Law-As-Literature Movement," Tennessee Law Review 54 (1987): 203-78.

73. On Twain's use of science and its relation to legal realism, see John P. McWilliams Jr., "Innocent Criminal or Criminal Innocence: The Trial in American Fiction," in Carl S. Smith, John P. McWilliams Jr., and Maxwell Bloomfield, Law and American Literature (New York: Knopf, 1983), PP. 45-124. On Twain's use of fingerprinting and scientific racism, see Susan Gillman, Dark Twins (Chicago: Univ. of Chicago Press, 1989).

74. Of course, the representation of the past often has present political importance. As the works of Page indicate, the production of images of the slaveholding South played an important role in national debates over postbellum racial policies. Pudd'nhead Wilson is more than an imaginative work of memory; it is also a self-conscious parody of versions of the Southern past that

helped to reunite North and South after Reconstruction. For instance, Twain's portrait of Judge Driscoll and Pembroke Howard can be profitably juxtaposed to Page's idealized sketches of Virginia lawyers.

75. Eric J. Sundquist offers a similar interpretation of Pudd'nhead's role, but, as he acknowledges, it was influenced by reading an essay of mine that "modified his views." Compare, for instance, Sundquist's book and his early essay "Mark Twain and Homer Plessy," Representations, 24 (1988): 102-27.For the acknowledgment, see Wake, p. 650, n. 8.

76. John Carlos Rowe, Through the Custom-House (Baltimore: Johns Hopkins Univ. Press, 1982), p. 147.

77. Mark Twain, Mark Twain in Eruption, ed. Bernard De Voto (New York: Grosset & Dunlap, 1940), PP. 204, 206, 206-7.

78. See Mark Twain, "Mental Telegraphy" and "Mental Telegraphy Again," In Defense of Harriet Shelley and Other Essays (New York: Harper & Brothers, 1929), pp. 111-147. On Twain and mediumship, see Howard Kerr, Mediums, and Spirit-Rappers, and Roaring Radicals (Urbana: Univ. of Illinois Press, 1972), and Gillman, Dark Twins .

79. Wolfgang Iser, "Feigning in Fiction," in Identity of the Literary Text, eds. Mario J. Valdés and Owen Miller (Toronto: Univ. of Toronto Press, 1985), PP. 204-28.

80. Brown v. Board of Education, 347 U.S., 483, 494 (1954).

1. Texts cited parenthetically in this chapter are: Samuel Clemens, "Pudd'nhead Wilson" and "Those Extraordinary Twins," ed. Sidney E. Berger (New York: Norton & Co., 1980), designated as ET; David Graham Phillips, The Cost (Indianapolis: Bobbs-Merrill Co., 1904), designated as C; David Graham Phillips, " 'Bev' " and "Secretary Root and His Plea for Centralization," in Contemporaries, ed. Louis Filler (Westport, Conn.: Greenwood Press, 1981), designated as B and R respectively; and Francis Lynde, The Grafters (Indianapolis: Bobbs-Merrill Co., 1904), designated as G.

2. On Twain's persistent financial difficulties, see Justin Kaplan, Mr. Clemens and Mark Twain (New York: Simon and Schuster, 1966).

3. Quoted in John D. Lewis, The Genossenschaft-Theory of Otto von Gierke, no. 25 (Madison: Univ. of Wisconsin Studies in the Social Sciences and History, 1935), P. 75. For more on Gierke in English, see Frederic William Maitland's introduction to his translation of Otto Gierke, Political Theories of the Middle Ages (Cambridge: Cambridge Univ. Press, 1900), pp. vii-lv. Gierke's argument for rights-bearing groups between the sovereign state and the individual could justify rights for various ethnic groups. Gierke, however, was himself extremely Eurocentric on issues of race. In a 1914 letter to Oliver Wendell Holmes on World War I, he declares that England will never "be able to free herself of the moral crime of having drawn Japan into the battle, and leading colored men of

all shades against the white race.'' Quoted in Sheldon M. Novick, Honorable Justice (Boston: Little, Brown, 1989), p. 312.

4. Quoted in Lewis, p. 169. In the United States at this time Horten Crooley was arguing that from birth, individuals were members of a society; that is, the family.

5. Dartmouth College v. Woodward, 4 Wheat. (U.S.), 518, 636 (1819).

6. See Morton Horwitz, " Santa Clara Revisited: The Development of Corporate Theory," West Virginia Law Review 88 (1985): 173-224.

7. Walter Benn Michaels, "Corporate Fiction," The Gold Standard and the Logic of Naturalism (Berkeley: Univ. of California Press, 1987), pp. 181-214.

8. See Brook Thomas, "Walter Benn Michaels and Cultural Poetics: Where's the Difference?" The New Historicism and Other Old-Fashioned Topics (Princeton: Princeton Univ. Press, 1991), p. 117-50.

9. Charles and Mary Beard subscribed to a conspiracy theory in which Republican framers of the 14th Amendment intentionally used "person" in order to expand corporate rights. The Rise of American Civilization, vol. 2 (New York: Macmillan Co., 1927), pp. 111-14. Horwitz makes a convincing argument that in Santa Clara, the Court was still intent on protecting the individual people making up the corporation, not the corporate personality itself. My reading of In re Tiburcio Parrott that follows confirms his argument.

10. Charles Wallace Collins, The Fourteenth Amendment and the States (Boston: Little, Brown, 1912), pp. 145-46. I have slightly adjusted Collins's statistics because he leaves out two cases concerned with blacks and one concerned with the citizenship of Chinese Americans.

11. On corporations and privacy, see Robert C. Post, "The Social Foundations of Privacy: Community and Self in the Common Law Tort," California Law Review 77 (1989): 986, n. 141.

12. Alan Trachtenberg, The Incorporation of America (New York: Hill and Wang, 1982).

13. Tiedeman, quoted in Horwitz, " Santa Clara Revisited," 206. See also Louise A. Halper, "Christopher G. Tiedeman, 'Laissez-Faire Constitutionalism' and the Dilemmas of Small-Scale Property in the Gilded Age," Ohio State Law Journal 51 (1990): 1347-84.

14. In re Tiburcio Parrott, 1 F. 481 (C.C.D. Cal. 1880), 494.

15. Quoted in Martin Sklar, The Corporate Reconstruction of American Capitalism: 1890-1916 (New York: Cambridge Univ. Press, 1988), p. 88. Sklar coined the phrase "corporate liberalism" in his "Woodrow Wilson and the Political Economy of Modern United States Liberalism," Studies on the Left 1 (1960): 17-47. See also R. Jeffrey Lustig, Corporate Liberalism (Berkeley: Univ. of California Press, 1982). For recent work on legal aspects of the rise of corporate liberalism, see Morton Horwitz, The Transformation of American Law, 1870-1960 (New York: Oxford Univ. Press, 1992); Tony Fryer, Regulating Big Business (Cambridge: Harvard Univ. Press, 1992); and Herbert Hovenkamp, Enterprise and American Law (Cambridge: Harvard Univ. Press, 1991). Earlier studies are Adolf A. Berle Jr. and Gardiner Means, The Modern Corporation and Private Property (Chicago: Commerce Clearing House, 1932); Oscar Handlin and Mary F. Handlin, "Origins of the American Business

Corporation," Journal of Economic History 5 (1945): 1-23; and James Willard Hurst The Legitimacy of the Business Corporation in the Law of the United States, 1780-1970 (Charlottesville: Univ. of Virginia Press, 1970).

16. Oscar Lewis, The Big Four (New York: Knopf, 1938).

17. Bartle v. Home Owners Cooperative, 127 N.E. 2d 832 (N.Y. Ct. App., 1955).

18. See Sir Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society and Its Relation to Modern Ideas, 10th ed. (1861; reprint, New York: Dorset Press, 1986), pp. 17-36; and Kathy Eden, Poetic and Legal Fiction in the Aristotelian Tradition (Princeton: Princeton Univ. Press, 1986), pp. 45-46.

19. Twain's attitude toward corporations may have been influenced by Henry H. Rogers of Standard Oil, who helped him with financial advice. In 1893 Twain refused even to consider publishing an exposé of Standard Oil. When Ira Tarbell was working on hers, he tried to arrange a meeting between her and representatives of the corporation to soften her criticism. See Louis Budd, Mark Twain: Social Philosopher (Bloomington: Indiana Univ. Press, 1962), pp. 194-200.

20. In "Michaels" I point to intriguing corporate portrayals in works that stretch the novel's limits, such as Thomas Pynchon's Gravity's Rainbow and Herman Melville's The Confidence-Man .

21. Literary Digest 32 (1903): 503. This and other valuable references of use in examining Phillips's work are documented in Ala C. Ravitz, David Graham Phillips (New York: Twayne, 1966). Other useful works on Phillips are Isaac Marcosson, David Graham Phillips and His Times (New York: Dodd, Mead, 1932); Kenneth S. Lynn, The Dream of Success (Westport, Conn.: Greenwood Press, 1955), pp. 121-57; Louis Filler, Voice of the Democracy: A Critical Biography of David Graham Phillips (University Park: Penn State Univ. Press, 1978); and Christopher Wilson, The Labor of Words: Literary Professionalism in the Progressive Era (Athens: Univ. of Georgia Press, 1985), pp. 141-67. For an excellent summary of popular fiction responding to the rise of corporations, see Maxwell Bloomfield, "Fictional Lawyers and the Rise of the Corporate State," in Carl S. Smith, John P. McWilliams Jr., and Maxwell Bloomfield, Law and American Literature (New York: Knopf, 1983), pp. 148-72.

22. "Literature of Exposure," Independent 40 (1106): 690-91.

23. Theodore Roosevelt, "The Man with the Muck-Rake," Outlook 82 (1906): 884-87, a reprint of his 14 April 1906 speech on laying the cornerstone of the House Office Building, which elaborated on remarks made to the Gridiron Club on 17 March 1906.

24. Richard Hofstadter, The Age of Reform (New York: Alfred A. Knopf, 1955), p. 5.

25. David Graham Phillips, "New York's Misrepresentatives," Cosmopolitan 40 (1906): 488.

26. On progressivism's diversity, see Daniel T. Rogers, "In Search of Progressivism," Reviews in American History 10 (1982): 113-32.

27. C. Wright Mills, White Collar (New York: Oxford Univ. Press, 1953).

28. "The Fate of the Salaried Man," Independent 60 (1903): 2002.

29. David Graham Phillips, The Treason of the Senate, ed. George Mowry and Judson A. Grenier (Chicago: Quadrangle, 1964), p. 56. June Howard links naturalism to a middle-class fear of sliding toward working-class dependency. See Form and History in American Literary Naturalism (Chapel Hill: Univ. of North Carolina Press, 1985).

30. Albion W. Tourgée, "The Anti-Trust Campaign," The North American Review (July 1893): 41.

31. Warren Susman, " 'Personality' and the Making of Twentieth-Century Culture," in Culture as History (New York: Pantheon Books, 1984), pp. 271-85.

32. Examples are John Hicks, The Populist Revolt (Lincoln: Univ. of Nebraska Press, 1931); Matthew Josephson, The Robber Barons (New York: Harcourt, Brace and Co., 1934); Samuel Hays, The Response to Industrialism (Chicago: Univ. of Chicago Press, 1957). Challenges to the constraints of this narrative are Alfred D. Chandler Jr., The Visible Hand (Cambridge: Harvard Univ. Press, 1977); Olivier Zunz, Making America Corporate: 1870-1920 (Chicago: Univ. of Chicago Press, 1990); and James Livingston, "The Social Analysis of Economic History and Theory: Conjectures on Late Nineteenth-Century American Development," American Historical Review 92 (1987): 69-85.

33. Phillips, Treason, pp. 82-83.

34. Albert J. Beveridge, "Trusts, A Development," The Meaning of the Times (Indianapolis: Bobbs-Merrill Co., 1908), p. 146. The speech was delivered on 28 September 1890.

35. The kiss that Scarborough delivers to a more than willing Gladys recalls the one Farnham delivers to Maud in The Bread-Winners . But although the scenes share similarities, they reveal how much Phillips's social vision is anchored in middle-class values. In Hay's novel a working-class woman tries to use her sexuality to rise socially. In Phillips's a woman of the powerful newly rich attempts to corrupt a man of solid middle-class values.

36. Albert J. Beveridge, "Trusts," p. 145.

37. W. J. Ghent, "The Next Step: A Benevolent Feudalism," The Independent 54 (1902): 781.

38. Walter Benn Michaels notes that in Bellamy's Looking Backward, people are "individualized by their place in the system." "An American Tragedy, or the Promise of American Life," Representations 25 (1989): 73.

39. On the corporate loyalty of middle-level management, see Chandler, Visible Hand, and Zunz, Making America . Zunz especially challenges Mills's thesis that the lives of the middle class were completely determined by the rise of corporate liberalism. He argues instead that "the diverse group of individuals that staffed the early corporation, not all of whom shared the same purpose, did not so much react to the corporation as they did design it. In doing so, they transformed their own lives" (8). The representation of corporate workers in The Grafters reinforces Zunz's argument and suggests the need to explore further the attitudes of those working for corporations. See Walter Licht's valuable Working for the Railroad (Princeton: Princeton Univ. Press, 1983).

40. William L. Riordon, Plunkitt of Tammany Hall, ed. Terrence J. McDonald (Boston: Bedford Books, 1994), pp. 49-51.

41. Like The Cost and The Grafters, Samuel Merwin-Webster's The Short Line War (New York: Macmillan Co., 1899) has an honorable judge (Judge Grey) and one in corporate pay (Judge Black).

42. Evoking the Gospel of Wealth's belief that "genius thrives on adversity," the narrator remarks of Kent's struggles: "Brutal as their blind gropings were, the Flagellants of the Dark Ages plied their whips to some dim purpose" (G 182). Kent's need to assert his primitive manhood confirms T. Jackson Lcars's thesis that for middle-class moralists, worried about social decadence, the figure of the warrior promised both social and personal regeneration. See No Place of Grace (New York: Pantheon Books, 1981). Nonetheless, his thesis that the period's medieval nostalgia is a response to ''modernity" is a bit too simple, since, as I have argued, it is not all that clear which forces stand for "modernity." If the middle class worried about loss of autonomy and romanticized medieval tests of manhood, it also feared and idealized "feudal'' forms of organization that simultaneously threatened individual autonomy and promised to overcome the sense of alienation brought about by new economic conditions of life. Attitudes toward corporations dramatize this complexity. The Grafters shows how feudal tests of manhood can be imagined within a corporate model.

43. Charles Edward Russell, "Obstructions in the Way of Justice: Address before the Fourteenth Annual Convention of the National American Woman Suffrage Convention," Buffalo, New York, October 20, 1908. Quoted in Ravitz, Phillips, p. 101.

44. Hofstadter, The Age of Reform .

45. Robert Wiebe, The Search for Order (New York: Hill and Wang, 1967), p. 166.

46. Zunz, Making America, p. 35. Martha Banta also discusses the alliance in Taylorized Lives (Chicago: Univ. of Chicago Press, 1993). This chapter can do no more than provide a modest supplement to Banta's complex argument about narratives of managed efficiency.

47. Dewey Grantham, Southern Progressivism: The Reconciliation of Progress and Tradition (Lexington: Univ. of Kentucky Press, 1983).

48. David W. Noble, The Paradox of Progressive Thought (Minneapolis: Univ. of Minnesota Press, 1958).

49. Louis D. Brandeis, The Curse of Bigness (New York: Viking Press, 1934), p. 104.

50. Sklar, Corporate Reconstruction, p. 175. For a lucid and provocative summary of Sklar's argument, see Spencer Olin, "Free Markets and Corporate America," Radical History Review 50 (1990): 213-20.

51. On Civil Service reform, see Paul P. Van Riper, History of the United States Civil Service (Evanston, Ill.: Row, Peterson, 1958). We should remember that Albion W. Tourgée's traditional republican values made him fear that Civil Service reform would destroy participatory democracy by creating a class of professional bureaucrats. See "Reform versus Reformation," The North American Review 293 (188): 305-19. Woodrow Wilson, in contrast, believing that the American people's character determined the character of its institutions rather than vice versa, was not worried that a "European-style" bureaucracy

would affect the political virtue of the country. See "The Study of Administration," Political Science Quarterly 2 (1887): 197-222.

52. Christopher Wilson, The Labor of Words .

1. P. S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979), p. 6.

2. Hannah Arendt, The Human Condition (Chicago: Univ. of Chicago Press, 1958), p. 233. Future references to this text will be cited parenthetically in the text and designated as HC. Other works by Hannah Arendt that will be cited parenthetically are: The Origins of Totalitarianism, 2d ed. (New York: Meridian Books, 1958), designated as OT; Between Past and Future (New York: Viking Press, 1961), designated as PF; and Eichmann in Jerusalem (New York: Viking Press, 1963), designated as EJ. The one book by Kate Chopin is: The Awakening, ed. Margaret Culley (New York: Norton, 1976), designated as A. Works by William Dean Howells include: The Rise of Silas Lapham (Bloomington: Indiana Univ. Press, 1971), designated as SL; and A Hazard of New Fortunes (Bloomington: Indiana Univ. Press, 1976), designated as HNF. Also included is: Henry James, The Golden Bowl, in The Novels and Tales of Henry James, vols. 23 and 24 (New York: Scribners, 1908), designated as GB.

3. See Alan Keenan, "PROMISES, PROMISES: The Abyss of Freedom and the Loss of the Political in the Work of Hannah Arendt," Political Theory 22 (1994): 297-322.

4. J. G. A. Pocock, The Machiavellian Moment (Princeton: Princeton Univ. Press, 1975).

5. Richard Chase, The American Novel and Its Tradition (Garden City, NY: Anchor Books, 1957), p. 186 n.

6. Albion W. Tourgée, "The Claim of 'Realism,' " North American Review 148 (1889): 387, 386, 387.

7. Walter Benn Michaels, The Gold Standard and the Logic of Capitalism (Berkeley: Univ. of California Press, 1987), p. 201.

8. Mark Seltzer, Bodies and Machines (New York: Routledge, 1992), p. 26.

9. Mark Twain-Howells Letters, eds. Henry Nash Smith and William M. Gibson, vol. 2 (Cambridge: Harvard Univ. Press, 1960), p. 630.

10. Responding to charges that realism lacks a moral purpose, Howells writes, "Then shall the novel have no purpose? Shall it not try to do good? ... No, and a thousand times, no! ... The novel can teach, and for shame's sake, it must teach, but only by painting life truly." "Novel-Writing and Novel-Reading," Selected Literary Criticism, ed. Ronald Gottesman, vol. 3 (Bloomington: Indiana Univ. Press, 1993), p. 222.

11. The Love Letters of Mark Twain, ed. Dixon Wector (New York: Harper, 1942), p. 291.

12. Quoted in Leon Edel, The Life of Henry James, vol. 2 (Philadelphia: Lippincott, 1962), pp. 165-66.

13. David McWhirter argues that "James's fatalistic vision of human experience" invites further study of James's "affinity with the naturalist currents of his era." Desire and Love in Henry James (New York: Cambridge Univ. Press, 1989), p. 167. My brief reading of The Golden Bowl suggests a subtle, but crucial, distinction between James's sense of agency and that of the naturalists.

14. Deftly linking The Golden Bowl to turn-of-the century narratives of mechanical efficiency, Martha Banta offers a much more pessimistic reading of the novel, claiming that "James leaves Maggie and the prince with the terrible reality of where they are—the 'well hell' of the present moment." Taylorized Lives (Chicago: Univ. of Chicago Press, 1993), p. 79. But perhaps Banta expects too much. Criticizing narratives of efficient control, she still wants Maggie and the Prince to have sovereign control over their future together. James does not offer a final triumph, but in leaving his couple with the reality of the present moment, he gives it the chance not to turn back time and recover a lost innocence that never existed but to start anew. Maggie and the Prince now have the opportunity to create a better future through negotiating a new agreement about what their duties and responsibilities to one another will be. To be sure, that opportunity was achieved at great cost, but that cost should heighten their awareness of what is at stake in their negotiations—if they take place.

15. For instance, Jonathan Arac claims, "Huck Finn lives so as to feel right with no sanction beyond his own psyche, the imaginative construction of an autonomous self that is the cultural work of literary narrative." "Nationalism, Hypercanonization, and Huckleberry Finn, " in National Identities and Post-Americanist Narratives, ed. Donald E. Pease (Durham: Duke Univ. Press, 1994), p. 33.

16. Helmuth Plessner, quoted by Wolfgang Iser, "Staging as an Anthropological Category," New Literary History 23 (1993): 879.

17. This structure of doubleness constituted by a space of emptiness is similar to what Ross Posnock "identifies" as nonidentity thinking in James. I play on Posnock's identification of nonidentity to emphasize a subtle difference in our work. Posnock derives his notion of Jamesian nonidentity mostly from Theodor Adorno, but also from George Herbert Mead. Mead speaks of the self as consisting of both a "me" and an "I." The "me" is linked to its normative social roles; the "I'' never quite fits into particular social situations. Thus for Mead the self is constituted by a structure of doubleness, in which, according to Posnock, ''We are never fully aware of what we are, since we exist in a kind of perpetual disequilibrium of internal division." For Posnock this disequilibrium is an example of nonidentity. But the fact that the elements making up the self are not identical does not necessarily create a condition of nonidentity, which is a negation of identity. Rather than negate identity, a structure of doubleness generates a performed or staged identity that, nonetheless, is not completely identical to the structure that allows it to be staged. Posnock implicitly acknowledges the staged aspect of Jamesian identity when he states that, "The Jamesian self is perpetually negotiating an identity out of its interaction with others" (my emphasis).

Posnock use of "nonidentity" grows out of his attempt to use James to link Mead's pragmatism with Adorno's negative dialectic. Adorno does work with

a dialectic of identity and nonidentity. But, as Jürgen Habermas argues, Mead and Adorno have an important difference. Habermas celebrates Mead for first challenging the notion of selfhood as a substance and seeing it as constituted by intersubjective role-playing. Adorno's nonidentity also challenges the notion of the self as substance, but it does not allow for intersubjectivity and thus it resists socialization.

Despite Posnock's efforts to wed Mead and Adorno, this difference is crucial. For me the Jamesian self is closer to Mead's than Adorno's. Nonetheless, it does have an affinity with Adorno's that keeps it from being identical with Mead's pragmatic self and helps to explain James's similarity with the literary modernists championed by Adorno. Habermas champions Mead because his sense of the self's intersubjectivity confirms a rationality inherent in everyday communication, a rationality assumed by pragmatists like Peirce, Mead, and Dewey. Thus, like Habermas, their account of experience remains subordinate to critical reason. Adorno's nonidentity is threatening to Habermas because it resists that subordination. The vacancy at the heart of the Jamesian self does not generate a dialectic of identity and nonidentity. Even so, it keeps a staged Jamesian identity from being accounted for completely in terms of intersubjectivity. Therein lies the unpredictability of the Jamesian self and its "aesthetic" aspect that cannot be subordinated to critical reason. The quotations from Posnock are from The Trial of Curiosity (New York: Oxford Univ. Press, 1991), p. 136.

18. W. E. B. Du Bois, "The Strivings of the Negro People," Atlantic Monthly 80 (1897): 194.

19. W. E. B. Du Bois, The Souls of Black Folk (New York: Penguin, 1989), P. 5.

20. Hans Blumenberg, "An Anthropological Approach to the Contemporary Significance of Rhetoric," in After Philosophy, eds. Kenneth Baynes, James Bohman, and Thomas McCarthy (Cambridge: MIT Univ. Press, 1988), p. 456.

21. The novel's "plasticity, its elasticity," James wrote, "are infinite." Literary Criticism: Essays on Literature, American Writers, English Writers (New York: Library of America, 1984), p. 105.

22. Georges Poulet, "The Phenomenology of Reading," New Literary History 1 (1969): 54-72.

23. Yosal Rogat, "The Judge as Spectator," University of Chicago Law Review 31 (1964): 219, 220.

24. Mark DeWolfe Howe, Justice Holmes: The Proving Years (Cambridge: Harvard Univ. Press, 1963).

25. Lawrence Friedman, Contract Law in America (Madison: Univ. of Wisconsin Press, 1965), p. 20.

26. Holmes most likely believed in a subjective interior. As Rogat argues, he valued his own privacy to an extreme. It is even possible to argue, as Rogat does, that Holmes's legal rhetoric and judicial stance serve to hide the private man. What is at stake, however, is the sense of self that he constructs for the law.

27. Cynthia Griffin Wolff, "Thanatos and Eros: Kate Chopin's The Awakening," American Quarterly 25 (1973): 449-72.

28. Jules Chametsky, "Our Decentralized Literature: The Significance of Region, Ethnic, Racial, and Sexual Factors," in Our Decentralized Literature

(Amherst: Univ. of Massachusetts Press, 1986), pp. 43, 44. First delivered June 4, 1971, this essay influenced Wolff and Margot Culley, the editor of the Norton Critical Edition. Feminist readings include Sandra Gilbert, "The Second Coming of Aphrodite: Kate Chopin's Fantasy of Desire," Kenyon Review 5 (1983): 42-56, and Elaine Showalter, "Tradition and the Individual Talent: The Awakening as a Solitary Book," in The Awakening, ed. Nancy A. Walker, (Boston: Bedford Books, 1993), pp. 169-89.

29. Margit Stange, "Personal Property: Exchange Value and the Female Self in The Awakening, " in The Awakening, ed. Nancy A. Walker, pp. 201-17. Quotation on p. 209. For another account of the self-defeating logic of Edna's possessive individualism, see Wai-chee Dimock, "Rightful Subjectivity," Yale Journal of Criticism 4 (1990): 25-51. Michele A. Birnbaum faults many feminists for neglecting the role of race and argues that "Possessive individualism, with its myth of the inalienable self, is precisely what makes it so difficult to see the investment in race upon which the white female subject capitalizes." She concludes, "The racial politics of womanhood in Chopin's novel must complicate, if not compromise, our celebration of a nineteenth-century white woman's sexual liberation." '' 'Alien Hands': Kate Chopin and the Colonization of Race,'' American Literature 66 (1994): 301-23, quotations at 316 and 317. Birnbaum still assumes that the novel is a celebration of Edna's sexual liberation.

30. Albion W. Tourgée, "The Reversal of Malthus," The American Journal of Sociology 2 (1896): 20, 22, 22.

31. Willa Cather disapprovingly noted the similarity between Edna and Madame Bovary in "Books and Magazines," Leader (8 July 1899): 6. This similarity is also stressed by the French translator, Cyrille Arnavon, "Les Débuts du Roman Réaliste Américain et l'Influence Française," in Romanciers Américains Contemporains, ed. Henri Kerst ( Cahiers des Langues Modernes 1 (1946): 9-35, and Susan J. Rosowski, "The Novel of Awakening," Genre 12 (1979): 313-32.

32. Chametzky, "Decentralized Literature," p. 43.

33. On rights in the novel, see Dimock, "Rightful Subjectivity."

34. Carole Pateman, The Sexual Contract (Stanford: Stanford Univ. Press, 1988), pp. 49, 182, 183.

35. Contracts made with surrogate mothers might seem to present an exception, but in terms of sexual difference they do not. No children to date have been born to surrogate mothers who are male.

36. Peter H. Schuck and Rogers M. Smith, Citizensbip without Consent, (New Haven: Yale Univ. Press, 1985), p. 39.

37. Michael T. Gilmore, "Revolt against Nature: The Problematic Modernism of The Awakening, " in New Essays on "The Awakening", ed. Wendy Martin (New York: Cambridge Univ. Press, 1988), pp. 59-87.

38. Hannah Arendt, "Reflections on Little Rock," Dissent 6 (1959): 45-56.

39. For discussions of Arendt's essay, see Elisabeth Young-Bruehl, Hannah Arendt. For Love of the World (New Haven: Yale Univ. Press, 1982), 308-18; Marie A. Failinger, "Equality versus the Right to Choose Associates: A Critique of Hannah Arendt's View of the Supreme Court's Dilemma," University of Pittsburgh Law Review 49 (1987): 143-88; and Werner Sollors, "Of Mules and

Mares in a Land of Difference; or Quadrupeds All?" American Quarterly 42 (1990): 167-90. Though refusing to take back most of her argument, Arendt did modify her sense of the children's role in the struggle for black rights, in response to an explanation offered by Ralph Ellison in 1964. See Ellison's contribution to Who Speaks for the Negro?, ed. Robert Penn Warren (New York: Random House, 1965), pp. 342-44.

40. See Dimock, "Rightful Subjectivity," and Birnbaum, " 'Alien Hands.' "

41. See Joseph Allen Boone's claim that James's texts bring readers "face-to-face with the issues implicit in their concluding uncertainty." Tradition and Counter Tradition (Chicago: Univ. of Chicago Press, 1987), p. 188. But open-endedness is not, as Boone claims, inherently subversive of existing social orders. Nor is it, as Thomas Galt Peyser argues about The Golden Bowl, inevitably a "strategy to appropriate the structures of power Boone suggests James wants to subvert." ''James, Race, and the Imperial Museum,'' American Literary History 6 (1994): 68 n. 6. Instead, it allows readers to imagine alternatives, whose political consequences are themselves uncertain. What needs to be considered is the specific context in which open-endedness occurs. Peyser's nuanced reading pays attention to that context at the moment of production, but in creating a homology between it and James's form he does not do justice to the novel's relationship with its readers, which depends on a structure of doubleness created by the novel's lack of identity with the representations that it bears. By establishing a seamless connection between the text and its historical context, Peyser, like so many others, either traps readers within the text's network of controls or allows privileged ones, like himself, to adopt the imperial position of the present to stand outside it to judge it. In either case, such "historical" readings confine texts to a museum past rather than allow them to participate in a contract that grants both them and readers a future orientation. The realists' "contract" also challenges Posnock's embrace of a presentism that acknowledges the value of "letting the present interrogate the past," but does not stress the equal importance of having texts from the past judge our present condition. The Trials of Curiosity, p. ix.