American Law and the Search for Cultural Redemption:
A Discussion of William Gaddis's A Frolic of His Own

by Helle Porsdam
Chapter VIII of
Legally Speaking: Contemporary American Culture and the Law
© University of Massachusetts Press, 1999

Footnote numbers link to notes at the bottom of the page; numbers there link back to the text.

It was quite an event when William Gaddis published a new novel. It did not happen very often. A Frolic of His Own from 1994 was Gaddis's fourth novel in an almost forty-year career. His first novel, The Recognitions, came in 1955. It was followed by JR (1975) and Carpenter's Gothic (1985). Unlike many of his fellow writers, Gaddis had "never been in a rush to get into print," as he put it in a recent interview.(1) In preparation for each of his novels he did careful research into the area of American society or culture that would form the background for the plot. In his first novel, the plot is shaped around the American art world. JR takes place within the world of business, and A Frolic of His Own takes us through the complexities of American law. "The law is an immense attempt to establish order or to rescue it-I'm not sure which," Gaddis said when the book was published. "And yet, it's led to a carnival of disorderly conduct on all sides. This kind of paradox fascinates me."(2)

The opening sentence of the novel announces its theme: "Justice?You get justice in the next world, in this world you have the law."(3) The law is everywhere in A Frolic of His Own. To begin with, the novel's title is a legal phrase used in cases of imputed negligence. It describes the activities of an employee that, though resulting in job-related injuries, do not entitle the employee to compensation. The main character of the novel, Oscar Crease, is the failed offspring of a famous legal family. His grandfather sat on the US. Supreme Court together with Oliver Wendell Holmes, and his ninety-seven-year-old father is a distinguished judge in Virginia. A middle-aged community-college history teacher and would-be playwright, Oscar has managed to write a play based on his grandfather's Civil War experiences. The play, entitled Once at Antie-tam, has never been published, nor has it ever been produced on stage.(4) It is not a particularly good play, but it constitutes Oscar's last hope for fame, respect, and recognition-especially from his father, who has always paid more attention to his legal career than to his son. When a Civil War movie is released whose plot is suspiciously close to that of his play, Oscar does not hesitate to bring a copyright infringement suit against the movie's producer.(5)

The plagiarism suit is not the only legal matter in which Oscar is involved. When we first meet him, he is in the hospital, recuperating from injuries inflicted by his own car, which ran over him while he was trying to jump-start it. His injuries ate by no means severe-within days he is perfectly able to walk again-but that does not prevent him from embarking on a million-dollar suit for pain and disfigurement. As both owner of the car and victim of the accident, Oscar is suing himself, thus becoming the ultimately litigious American. This suit is neither more nor less absurd or pathetic -- or hilariously funny, for that matter -- than the various suits in which the other characters of A Frolic of His Own are engaged. Take for example the $700 million trademark infringement suit brought by the Episcopal Church against Pepsi-Cola on the grounds that the anagrammatic relationship of their names is no accident. Or the two suits involving the socialite Trish, who gets herself pregnant by a young man and proceeds to have an abortion without consulting him. Trish hires one set of lawyers to bring damages for "fetal endangerment" and another to defend her abortion.

There are suits everywhere. And for every suit there is a countersuit or an appeal, all of which run up enormous costs. Scattered throughout the novel are legal opinions, complaints, answers to complaints, and depositions, many of which at first seem ludicrous but eventually turn out to serve some purpose. Gaddis's characters all seem convinced that-the place to turn in search of answers, definitions of right and wrong, is the country's justice system. A Frolic of His Own reflects how "the civil complaint [has become] ... the sonnet of our times," as Robert Weisberg puts it. Oscar and his fellow characters are "not so much aberrant in [their] mental condition as representative of us all in [their] belief that the civil justice system is the best medium for all desperate hopes for recognition, respect, and solace."(6)

Gaddis ridicules law-permeated America; he exposes the obsession with law and lawyers that he sees all around him. But his satirical attacks never obscure his affection for the law and for the people for whom it has developed into an ideology. In this, as well as in the levels of complexity and subtlety that he succeeds in creating as the plot unfolds, A Frolic of His Own differs from other "lawyerly" novels on the contemporary American cultural scene. But there is one other thing that makes A Frolic of His Own stand out, and that is the sincerity with which Gaddis attempts to reopen discussions that have been declared dead or at least obsolete by deconstructionist and postmodernist critics. The novel is about old-fashioned themes such as divided selves, the originality of art (or lack thereof), the corruption of the ideal and the aspirational by the vulgar; at the same time it concerns more contemporary themes such as the impact of multiculturalism on national and personal identity. It will not do to dismiss Gaddis curtly as an elitist snob. Old and new, the questions he raises truly matter, and readers find refreshing the honesty with which, leaving them acutely, painfully aware of the contradictions and absurdities of the legal system, the author tacitly admits that he, too, can only guess at possible answers.

A Frolic of His Own touches upon a myriad of themes and aspects within American history and culture. One chapter cannot do justice to them all. In what follows, the focus will be on Gaddis's discussion of law as an engine for cultural redemption. When Gaddis describes how his fellow Americans grasp at the machinery of law to lend their lives some dignified order, it will be argued, he puts his finger on an important contemporary phenomenon. While the country's legal system may once have been able to supply redemptive justice, it has become too wordy and bureaucratic to do so today, he implies, thereby wisely advising his readers not to ask too much of the country's judges and other legal servants. I shall take as my point of departure the copyright infringement suit in which Oscar Crease is involved, and around which most of the plot revolves. My discussion of this lawsuit will be preceded by an analysis of law as a powerful form of expressing and defining meanings in American public life.

Law and the Expression of Public Values
In an important discussion of Gaddis's first novel, The Recognitions, Tony Tanner relates "the notion that the ordinary individual and the artist alike may be living their lives within an intricate system or pattern of fictions" to the "search for some recognition of non-fictional reality." Together, he says, these "form a recurrent American theme which no one has explored at greater length than William Gaddis in his novel The Recognitions. " The relationship between recognition and invention is worth examining, Tanner continues, since a true act of recognition for Gaddis "is more profound than any act of invention, and ... the greatest achievement of any invention or art work is when it frees you into a recognition of reality."(7) Tanner's insight is as pertinent to A Frolic of His Own as it was to Gaddiss first novel. Gaddis remained preoccupied with the recognition of reality and possible ways in which to facilitate it. It will be argued here that Gaddis sought a contemporary American reality-transcendental or material-in the law.

He did not make it easy for his readers. As in his other novels, in A Frolic of His Own he used the technique of nearly continuous, minimally punctuated speech. Dashes indicate dialogue, and it takes a real effort on the reader's part to sort out the various voices-to figure out who says what. Language is obviously important; it is through language that we get to know the characters and their feelings and problems. In Gaddis's work, as Jonathan Raban points out in his review of A Frolic of His Own, "language is where we live and what we are. It's all we have."(8)
At first sight, the world of words that Gaddis elaborates merely seems pointless and chaotic. The characters ramble on in a manic and selfcentered way. They constantly interrupt each other, making it impossible for anyone to express a coherent line of thought. In addition, their author keeps interrupting the narrative, such as it is, by inserting a variety of texts, chiefly legal documents, but also Oscar's play "Once at Antietam," of which we get close to seventy pages. In the first of these legal documents, Oscar's father's opinion in Szyrk v. Village of Tatamount et al., old Judge Crease addresses the problem of language. The Szyrk case, which is one of the most ridiculously funny in the novel, involves a dog belonging to a small black boy in Tatamount, Virginia, which runs into a massive free-standing sculpture, Cyclone Seven, and cannot get out. When the creator of Cyclone Seven, Mr. Szyrk, "a sculptor of some wide reputation in artistic circles," learns that the fire brigade is all set to help the dog get out with the aid of acetylene torches, he seeks an injunction to prevent the village and its fire brigade from tampering with his masterpiece. It is Mr. Szyrk's claim "to act as an instrument of higher authority, namely `art"' that gives rise to the following observations on Judge Crease's part:

... we may first cite [the] dictionary definition [of "art"] as "(1) Human effort to imitate, supplement, alter or counteract the work of nature." Notwithstanding that Cyclone Seven clearly answers this description especially in its last emphasis, there remain certain fine distinctions posing some little difficulty for the average lay observer persuaded from habit and even education to regard sculptural art as beauty synonymous with truth in expressing harmony ... obliging us for the purpose of this proceeding to confront the theory that in having become self-referential art is in itself theory without which it has no more substance than Sir Arthur Eddington's famous step "on a swarm of flies," here present in further exhibits by plaintiff drawn from prestigious art publications ... serving only a corresponding self-referential confrontation oflanguage with language and thereby, in reducing itself f to theory, rendering it a mere plaything, which exhibits the court finds frivolous.(9) (my emphases)

Judge Crease is basically making fun here of contemporary postmodern attempts to textualize everything. Yet his mandarin discourse is itself in danger of slipping into wholesale reflexivity, so that Harry, Oscar's stepsister Christina's lawyer-husband, presently understands him to be saying precisely the opposite of what he is in fact saying. When Christina complains to Harry that it is only lawyers who can understand legal language, and that it is all a conspiracy anyway, Harry defiantly shoots back, echoing Judge Crease,

But, but damn it Christina that's what we're talking about! What do you think the law is, that's all it is, language ... it all evaporates into language confronted by language turning language itself into theory till it's not about what it's about it's only about itself turning into a mere plaything the Judge says it right there in this new opinion.... (10)

'Precisely because of the tendency of Gaddis's characters to ramble on at the most frantic pace without seemingly getting anywhere, we are tempted to take such outbursts as an invitation to see the fictional world Gaddis creates for us as a postmodern one full of plurality and indeterminacy. As we move further into the novel, however, we realize that "the confrontation of language with language" exposed by Gaddis does not so much reduce language to theory as it simply constitutes an attempt on the part of his characters to make the most of it, to do the best they can in their daily late-twentieth-century struggle to communicate. "Gaddis' nasty exposes of legal language do not really purport to show," as Robert Weisberg explains, "that law is ultimately about language, but that law is, unpostmodernistly speaking, about injustice or at least the visceral human feel of injustice."(11)

The various documents interleaved throughout Gaddis's massive tome may strike the reader as annoying and unnecessarily tedious interruptions of the narrative, but they are full of shrewd observations and common sense. They have a peculiar power of their own and "provide the novel's only moments of stability, illusory flickers of presence, agency, closure, respite, justice even."(12)

When Christina wonders why it is that her stepfather "spends his precious time on this piece of junk sculpture and some dead dog," her husband Harry answers: "Trying to rescue the language, Christina. Wait and see."(13) The implication is that judges such as judge Crease may help rescue language from postmodern attempts to textualize everythingthe kind of textualization that the old judge pokes fun at in his opinion quoted above. It is not that lawyers and judges are better or more lovable persons than anybody else. There are in fact a number of highly unflattering portraits of jurists in the novel, Judge Crease himself being one of them. It is just that in the 1990s it is to the law that people look for order and discipline. "The point is," says Robert Weisberg,

that even though the legal system is a "jerrybuilt evasion" of reality, there is a reality to evade. Though the characters are fools to believe that the legal system they have made or inherited will bring them justice-or even that they deserve justice-they are not fools to believe that something like justice could exist and perhaps has existed. For Gaddis, justice is not quite so distant as Utopia ... It is a "real ideal" and one which this species should be capable of achieving, but which, in Gaddis' almost vindictively angry view, this species has idiotically botched. (14)

In addition to being the area of contemporary American culture that may further what Tony Tanner calls "the pilgrimage" toward reality,(15) the law has increasingly come to be seen over the past few years as a form of expression that is extremely powerful "in defining meanings in our public life."(16) In his most recent book, Law's Promise, Law's Expression, Kenneth L. Karst argues that the United States is presently witnessing a "cultural counterrevolution," a "profound disquiet" felt by a number of Americans who have felt left out, even threatened by the successes of the civil rights movement, the women's movement, and the gay rights movement. This cultural counterrevolution evokes visions of an earlier social order, a traditional rank-ordering of groups, and it is inextricably bound up in law.

Because the political aspect of a clash of cultures is a contest over public meanings, the law is a natural focus of contention, as the community's definitive expression of those meanings. It is this function that makes law, in Thurman Arnold's words, "a great reservoir of emotionally important social symbols." (17)

To the counterrevolutionaries, according to their hostile critics, the promise of law is first of all to impose order on a chaotic society and to have that order "embodied in a formal public acknowledgment of the dominance of their values." Second, and not unrelated, law's promise is to uphold an ideology of masculinity that treats power as its own justification and equates the proof of manhood with the expression of dominance.

The heart of the ideology of masculinity is the belief that power rightfully belongs to the masculine-that is, to those who display the traits traditionally called masculine. This belief has two corollaries. The first is that the gender line must be clearly drawn, and the second is that power is rightfully distributed among the masculine in proportion to their masculinity-as determined not merely by their physical stature or aggressiveness, but more generally by their ability to dominate and to avoid being dominated.

What the counterrevolutionaries are asking for, in other words, is "the political and cultural equivalent of a copyright or a trademark. "(18) They want the country at large not only to acknowledge that their cultural and political points of view are the "correct" ones, but also to elevate these views into official public policy and law.

With A Frolic of His Own, William Gaddis enlisted in the ranks of the counterrevolutionaries. His is an unusually sophisticated contribution to the cultural debates presently ravaging the United States, to be sure. Unlike the mainly southern, lower income, evangelical or fundamentalist Protestants and practicing Catholics with limited formal education that make up the largest number of the constituency for cultural counterrevolution, (19) Gaddis did not act out of status anxiety, out of fear that he is losing out politically and economically. What he did share with the average counterrevolutionary, however, was a profound confusion as to what the effects have been on traditional American values of the inclusion of a number of new groups of Americans as full participants. Are the nation's subcultures correct when they claim that legal and cultural universalism threaten to undermine them? And if so, does this mean that the kinds of things Americans used to believe in, such as American exceptionalism and civic culture, solidly anchored within Western philosophy and culture and aspiring to embrace everyone, have now become obsolete and ought to be discarded altogether? These are some of the questions that preoccupy Oscar Crease-and his author-as he embarks on a quixotic defense of originality that may or may not become a crusade for that "cultural copyright" Karst speaks of.

Intellectual Property and Anxieties of Manhood: Oscar Crease"s Copyright Infringement Suit

Copyright Law: History and Current Definitions
The Congress shall have power ... to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.

Article I, Section 8, Clause 8 of the United States Constitution does not use the terms copyrights and patents, but it has been understood from its very beginning to cover both .(20) The clause is simple and direct, but not entirely clear. Is copyright, for example, a form of property, a personal right of the author, or a combination of personal and property rights? Was it conceived by the framers for the benefit of the author or the public? And what does "useful arts" mean-is a soap opera as useful as a novel by William Faulkner? These are just some of the questions upon which scholars have been unable to agree over the years.

The Copyright Act of 1909 states:

The enactment of copyright legislation by Congress under the terms of the Constitution is not based upon any natural right that the author has in his writings ... but upon the ground that the welfare of the public will be served and progress of science and useful arts will be promoted by securing to authors for limited periods the exclusive rights to their writings ... Not primarily for the benefit of the author, but primarily for the benefit of the public, such rights are given.

As some legal scholars have since seen it, however, copyright ought not so much to foster the creation and dissemination of intellectual works for the public welfare as to benefit the individual author. Here is Harvard law professor Nathaniel Shaler commenting, in 1936, on the special kind of rights an author has to his work.

When we come to weigh the rights of the several sorts of property which can be held by man ... it will be clearly seen that intellectual property is, after all, the only absolute possession in the world ... The man who brings out of the nothingness some child of his thought has rights therein which cannot belong to any other sort of property.

The interpretation of the words "useful arts" has been linked over the years to the issue of whose benefit is more important, that of the general public or that of the author. Those who have been chiefly concerned with the public good have attempted to answer questions that look very familiar to students of American studies. Do the words "promote" and "useful" indicate an assessment of a work of art in terms of its educational value, and if this is indeed the case what is and is not educational? Is there a qualitative difference between a highbrow and a lowbrow piece of art, and if so who is qualified to say so? In a famous case from 1903, Bleistein v. Donaldson Lithographing Co., Justices Holmes and Harlan discussed precisely these issues. The case concerned the copying in reduced form of three chromolithographs prepared as advertisements for a circus. Holmes delivered the opinion of the court:

It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits. At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke ... At the other end, copyright would be denied to pictures which appealed to a public less educated than the judge. Yet if they command the interest of any public, they have a commercial value-it would be bold to say that they have not an aesthetic and educational value-and the taste of any public is not to be treated with contempt.

To this, Holmes's colleague on the Court, Justice Harlan, countered in his dissent that "if a chromo, lithograph, or other print, engraving, or picture has no other use than that of a mere advertisement, and no value aside from this function, it would not be promotive of the useful arts, within the meaning of the constitutional provision, to protect the 'author' in the exclusive use thereof. . . ."

More recently, the issue of copyright has also been connected to First Amendment debates involving freedom of speech. Thus, in Harper & Row Publishers, Inc. v. Nation Enters (1985), Justice O'Connor invoked the potentially beneficial interdependence of copyright and the First Amendment by emphasizing that "it should not be forgotten that the Framers intended copyright itself to be the engine of free expression. By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas ." (21) Intellectual property and patent rights have furthermore become hot issues in relation to current genome and other genetic engineering research as well as to computer technology. Gaddis's choice of copyright law as the framework for his critical analysis of the current state of American culture is therefore an excellent one. Before we turn to Oscar's copyright infringement suit, however, we need to take a quick look at the nature and the subject matter of copyright as currently defined.

A copyright is a set of exclusive rights in literary, musical, choreographic, dramatic, and artistic works. The rights under copyright pertain to the reproduction, adaptation, public distribution, and public display or performance of the work. For copyright to be available, the work of authorship in question must be original and fixed in a tangible medium. As to what the first of the two fundamental criteria of copyright protection, originality, means, the Supreme Court recently explained that

The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author ... Original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity ... To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice ... Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying.(22)

The copyright owner's exclusive rights are limited in two important ways. First of all, because a copyright protects only against copying (or paraphrasing) the copyrighted work, a copyright does not prohibit anothet author from independently producing the same or a similar work. Second, neither ideas nor discrete facts from a copyrighted work are protected; copyright protects only the particular expression of ideas and facts. The latter limitation has been the subject of much discussion, the distinction between an idea and its expression not always being immediately apparent. As we shall see, this very elusiveness of the idea/expression dichotomy gives rise to some interesting points of contention during Oscar's plagiarism suit.

Crease v. Erebus Entertainment, Inc.
Discussing with Christina how Oscar will react if he loses the copyright infringement suit he has brought against the producers of the Civil War movie "The Blood in the Red White and Blue," Harry suggests that Oscar has been "going on a frolic of his own." Christina wants to know where on earth he has dug up that phrase. Going on a frolic of one's own, Harry explains, is

Just a phrase, comes up sometimes in cases of imputed negligence, the servant gets injured or injures somebody else on the job when he's not doing what he's hired for, not performing any duty owing to the master, voluntarily undertakes some activity outside the scope of his employment ... like an office worker puts out an eye shooting paper clips with a rubberband...

"Isn't that really what the law is all about?" Christina then asks Harry, "where it's all laws, and laws, and everything's laws and [Oscar's] done something nobody's told him to, nobody hired him to and gone off on a frolic of his own I mean think about it Harry. Isn't that really what the artist is finally all about? " (23)

The next time somebody refers to this legal technicality, it is old judge Crease in his instructions to the jury in the case of Fickert v. Ude. The Reverend Elton Ude of Mississippi is accused of negligence in the baptismal drowning of a small boy called Wayne Fickert in the Pee Dee River. "In bringing a new soul into the fold through the baptismal ceremony," writes Judge Crease, the Reverend Ude was "engaged on his master's business... and not, in the words of a later English jurist, `going on a frolic of his own."' The Reverend Ude's master is, of course, God, and what Judge Crease is suggesting in his instruction to the jury is that the drowning is God's fault rather than the Reverend Ude's, especially since in this particular case, "the instrument of imminent catastrophe is the master's control, as must the crest and current of the Pee Dee River have been."(24)

The connection made throughout the novel between the artist and God in relation to the legal phrase "a frolic of his own" is an interesting one. In the Fickert case, God is literally "indicted for negligence-is absent, elusive, unstable." (25) Like a number of Gaddis's other fictional creations, Oscar is engaged in a search for his father, human and divine. His real reason for embarking on the plagiarism suit is to win his father's approval by showing him that he has been capable of producing a valuable and important play about the Crease family. As already mentioned, the old judge does not show too much interest in his offspring; he is always too busy thinking and writing about legal matters to get in touch with Oscar. The ultimate irony of the novel is that when his father finally exerts himself on Oscar's behalf by writing the appeal in his plagiarism case, he merely does it for "love of the law," as his old law clerk informs Oscar and Christina upon the judge's death.(26) This is devastating news to Oscar, who thought that his father really wanted to help him out.

Though most of his family came from the South, Oscar has lived all his life as "a wealthy recluse" (or, as his somewhat silly girlfriend Lily thinks the papers have called him, "a wealthy excuse") on Long Islan .(27) The silent pond beyond the window of his by now somewhat rundown mansion, to which the characters turn their attention when everything gets to be too much in and around the house, recalls Walden Pond, and scattered throughout the book are passages from Walden itself as well as from Longfellow's Song ofHiawatha. Oscar Crease, that is, is an American historian and playwright with a New England background and frame of mind. Traditionally, as Tony Tanner reminds us, in New England human creativity was somewhat problematic. Creating something out of nothing was perceived to be God's prerogative, and if a human being engaged in creative activity he or she risked being accused of blasphemy. Oscar does not seem to suffer from precisely this kind of guilt. Instead, "his reverence is now directed to the creative acts of the Old Masters." (28) Again, Tony Tanner is speaking here about Wyatt from The Recognitions, but his observation is just as relevant in regard to Oscar Crease.

In A Frolic of His Own, Gaddis is as much preoccupied with the theme of the American artist as copyist as he was in his earlier work. For Oscar as well as for his author, remembering is more important than inventing-"notions of originality give way to copying," as Tanner puts it. The general feeling in The Recognitions -- and, we may add, also in the later novel-Tanner goes on, seems to be that in their quest for originality, contemporary artists merely synthesize products to vaunt their own egos. Such art works obscure reality. Great art forgets self altogether and contains a recognition of reality. Copying such works to re-experience that recognition may thus become an authentic, selfless mode of access to reality. Gaddis's book keeps returning to the difference between the fictions or fabrications which hinder, and those which facilitate, that recognition of reality which, truly understood, is the most original act of which man is capable.(29)

American copyright law, as we saw above, specifically concerns itself with notions of originality, novelty, ideas and their expressions or, to put it in a different way, with the American artist as copyist. By focusing the plot of A Frolic of His Own on a copyright infringement suit, Gaddis has thus succeeded in creating a piece of work that speaks both to his own key concerns as a writer and to the key cultural concerns of this country.

It is when Oscar is recuperating in the hospital from the injuries inflicted by his own car that he first reads about the production -- and enormous success -- of "The Blood in the Red White and Blue." He is greatly upset and exclaims to his brother-in-law, "no, but [that man Kiester who made it] stole my idea, the same story all of it, it's even the same battle it's not a, just a nuisance it really happened, it was my own grandfather wasn't it?" Always the lawyer, Harry immediately tries to warn Oscar about taking this any further: "Oscar you can't just, you can't own the Civil War. You can't copyright history, you can't copyright an idea. . . ."(30) Oscar does not heed -Harry's advice, of course. He proceeds to hire a lawyer, Harold Basie. Basie, who is black and later turns out to be a complete fraud, encourages Oscar to go ahead with his plagiarism suit. When the producers of the Civil War epic offer to settle for $200,000, it is Basie who persuades Oscar to turn the offer down and instead try his luck in court. Because of his injuries Oscar is unable to attend the regular court meetings. Kiester's lawyers therefore have to pay a visit to his Long Island home to take his deposition.

Enter the attorney for the defendants, Mr. Jawaharlal Madhar Pai, Esq., of the firm of Swyne & Dour. Madhar Pai, we learn through Harry, is "real red brick university product all English tailoring really full of himself, Swyne & Dour's token ethnic they came up with when they got a look at Mister Basie." Before long this "token ethnic," who, as it soon turns out, is every bit as clever and knowledgeable about cultural issues as Oscar, engages his opponent in a fascinating discussion about art and culture. Pai starts out by asking Oscar about the title of his play -- where it comes from and what Oscar intended it to convey. The title "Once at Antietam," Oscar answers, echoes a line in Shakespeare's Othello and is intended to evoke the dramatic death scene in which Othello stabs himself. Would this kind of sophisticated reference make sense to a mass audience, Pai wants to know next.

A. To anyone who's read Shakespeare.
Q. Would you characterize that as a general audience? Or a rather narrow one?
A. As a theater going audience.
Q. As a relatively narrow audience, then, a traditionally elite audience? In other words you wouldn't have expected a mass audience to make this Shakespeare connection?(31)

Having successfully exposed Oscar's highbrow leanings, Pai pursues the topic of possible sources of inspiration for "Once at Antietam." Certain passages of the play remind him of Eugene O'Neill's Civil War trilogy "Mourning Becomes Electra," for example. Are these similarities accidental, he asks. Appalled that Pai may think he has taken his material and his characters from O'Neill's play, Oscar hastens to say that this is most "certainly not" the case. He would never dream of taking anything from "that sham thing" of O'Neill's -- 'I mean you wouldn't see me writing `Does it pain dreadfully? You poor darling, how you must have suffered!'"(32) In addition to emphasizing the fact that Oscar prefers his play to be associated in people's mind with Shakespeare rather than with O'Neill, the O'Neill comparison allows Pai to drive home the point that similarities may indeed occur without copying-a point of which he intends later to remind Oscar in relation to the movie "The Blood in the Red White and Blue."

When Pai next directs Oscar's attention to Book One of Plato's Republic and to the striking similarities between this classic and his own work, Oscar's reaction is entirely different. Plato, Oscar readily acknowledges, is a chief source of inspiration for his play. He would certainly expect people not only to recognize this, but also to recognize the fact that his play is meant as a kind of homage to Plato, one of the greatest Western thinkers of all times.

A. . . . I obviously expected people to recognize these passages, these pieces of Socratic dialogue, any civilized person would recognize them from the Republic. It's all simply, it was all simply meant as a kind of homage, that's obvious isn't it?
Q. Please let me ask the questions. When you say any civilized person, are we back to that somewhat narrow, rather exclusive audience envisioned in connection with your play's title's slightly remote echo of Shakespeare?
A. I answered that didn't I? That he played to both the stalls and the pits?
Q. We are speaking now of Plato. Are you saying, then, that this very broad audience, which you have characterized as the pits, would be expected to recognize these random passages from his Republic?
A. It doesn't matter, no. No not the specific passages but it doesn't matter, that's the ...
Q. Not the specific passages, then, but the approach, the Socratic method as it's known. What Dale Carnegie called the `Yes yes' response?
A. Who?
Q. Dale Carnegie, the author of How to Win Friends and Influence People.
A. God! Yes, speaking of the pits but that's the point, it doesn't matter. They don't have to know it's the Republic, they may never have heard of Plato but they're carried away by it, by the dialogue, by the wit and the timeliness of it, and the timelessness of it. That's the greatness of Plato, finding a wider audience, that's the point. That's what I mean by homage.(33)

It is this "timeless" quality of Plato's work, according to Oscar, as well as the fact that "any civilized person" would recognize the similarities between his own work and that of Plato, which makes it acceptable for him to lift whole passages from Plato. It is this timeless quality, moreover, that he aspires to in his own writing. What he has attempted to capture in his play are "the voices of men a hundred years ago swept by the tide of events toward the end of innocence? to bring them to life caught up in the toils of history, struggling vainly with the great riddles of human existence, justice and slavery, war, destiny." When a work of art succeeds in touching upon the great timeless themes of Western civilization, idea and expression become one, and copying such a work becomes a means of gaining access to an authentic recognition of reality. The legal distinction between idea and expression no longer applies except in cases where a timeless idea is copied in a vulgar and demeaning way. This is for example the case, Oscar claims, with the blockbuster movie "The Blood in the Red White and Blue," which is full of sex scenes and gory special effects. What he seeks to have redressed in this lawsuit, he explains to Pai, is "on the one hand ... the theft of my play without giving me credit and on the other what offends me is when my work is, when vulgarity and grossness and stupidity debase my work."(34) The difference between his copying from Plato and Kiester's copying from him lies not in the act of copying itself, but in the end product. Whereas his play has preserved the timeless quality and essence of the Republic, "The Blood in the Red White and Blue" is a piece of popular junk that caters to all the worst in human beings. Or, as Tanner would have defended Oscar had he been his attorney, whereas "Once at Antietam" facilitates, Kiester's movie hinders "that recognition of reality which, truly understood, is the most original act of which man is capable. "(31)

As intriguing as he may find his views on copyright, Pai subsequently informs Oscar, he feels obliged to point out that they will not hold up in a court of law. Copyright law makes a clear distinction between an idea and its expression, and anybody involved in a copyright infringement suit must do likewise. But Oscar is not only wrong in a legal sense, Pai says; culturally speaking his theories about copyright and art are erroneous too. His elitist preferences blind him to the real issues in contemporary America. The so-called timeless problems of the so-called civilized person with which Oscar deals in his play are luxury problems. To the large majority of Oscar's fellow Americans, "the portrayal of man the microcosm of his nation's history, of man against himself, of self delusion and self betrayal" is by and large irrelevant. What chiefly interests the average American are the poverty, the drug problems, the ethnic fights going on in the streets of multicultural America, and of these there is precious little in Oscar's play. The important division is not that within a person, but that between ethnic groups. When Oscar tries to defend himself by saying that his Civil War play is really "not about these quarrels between black people and Jews that burst out on the front page is it?" Pai, warming to his subject, indignantly retorts:

"Drugs, gunfire, let them fight it out, turn off the news and go in to dinner, not our fight is it? like your wounded pheasant burrowing for refuge in the stone wall, trying to flee from what was happening? the hollow essence of this Christian hypocrisy? ... John Israel and Kane out there, both sides of your equation manipulating your hero's profoundly hypocritical capacity for guilt, the black and the Jew parading their real grievances they're not appealing to his conscience, they're not even fighting each other to seize hold of his conscience Oscar they're fighting for which one will fill this yawning sentimental churchgoing flag waving vacant remnant of the founding fathers, which one will finally be the conscience of this exhausted morally bankrupt corpse of the white Protestant establishment and that! ... that's the heart of it, the heart of the American dilemma." (36)

Pai does not stop here. Having dealt Oscar's already shaky self-esteem a heavy blow by showing him how obsolete the concerns of his play are and how his preoccupation with those elitist concerns prevents him from noticing-and taking responsibility for-what is happening around him, Pai proceeds to attack the very foundation on which Oscar builds his notions of great and timeless art. "I don't really trust your Plato," he tells Oscar.

" Look at his record on slavery, subjugation of women and the welcome mat out on Queer Street you get the feeling in this Cratylus that it's all really just a game he's playing, cardboard characters and their arguments so full of holes the whole thing ends in confusion and the flaws in his method show right through, your plea in your deposition back there as homage? as timely and timeless? In the end he's pretty much a dictator isn't he, a censor, can't trust him . . ."(37)

Oscar is shocked and genuinely confused by these devastating attacks on everything he has always believed in. He never really recovers. Toward the end of the novel, he regresses back into childhood. In the last glimpse we get of him, he bursts out from behind a door and starts tickling Christina until she can hardly breathe -- an act oddly enough presaged by Christina herself at the beginning of the novel. She and Oscar, she tells her husband, used to talk about one of us buying the other one out when we grew up, but if something happened to him and the whole place would come to me he'd get violent because it had belonged to his mother when Father married her and he'd say he'd come back and haunt me, he'd jump out from behind doors to show me what he'd do, grabbing me and tickling me till I screamed, till I couldn't breathe. (38)

Oscar's, or rather his author's, "revenge" is to "feminize" Madhar Pai in ways that recall Kenneth Karst's theories about current counterrevolutionary attempts to uphold an ideology of masculinity. Pai is portrayed not only as an effeminate product of the British private school system, who throws in an "old sport" or "old fellow" at regular intervals, but also as an opportunistic intruder, who only has an affair with socialite Trish in order to gain access to the America of the rich and famous. "He's quick all right," Harry says to Christina after Pai has helped Trish defraud a devoted family servant by breaking Trish's mother's will, "sometimes he's a little too quick ... one of these men who has to show that he's smarter than you are even when nothing's at stake ... He'd rather win than be right. "(39) Politically correct or not, it is not to Madhar Pai or "Mudpye," as Harry and Christina nickname him, that our sympathy flows. In the end, all his obvious flaws and snobbishness notwithstanding, Oscar is the one whose plight mostly touches us.

Oscar's confrontation with Pai mainly concerns the concept of culture. Throughout A Frolic of His Own, however, the discussion of high culture versus low culture is closely paralleled by a no less interesting and significant discussion about justice versus law. In both his lawsuits, Oscar wants more than just victory from the law. He wants vindication, or justice -- "that's why I'm suing and it's not just the money, loss of earning capacity, career in jeopardy no, it's the principle of the thing," as he informs us from the very beginning.(40) For Pai, on the other hand, the issue of justice-or rather, the dream of justice -- is just as obsolete and ridiculous as the issue of timeless values and great themes within Western civilization. Winning is what counts, not being right-just as the fight in the street is more important than old-fashioned WASP philosophical inquiries into the depth of the soul.

In being more interested in winning than in being right, Pai recalls Anthony Kronman's lawyer-technician. He is precisely the sort of lawyer, described by Kronman in The Lost Lawyer, for whom the law is nothing more than a technical means to an end, and for whom the ideals of the common-law lawyer-statesman -- practical wisdom, excellence of judgment, and a devotion to the public good-have become obsolete, even embarrassing.(41) It is interesting to note in this connection, also, that Gaddis has Oscar -- and later on also Harry -- reflect on the justice-versus-law issue by comparing Oscar's grandfather (the hero of Oscar's play) to his colleague on the Court, Justice Oliver Wendell Holmes. Trying to explain to Harold Basie "what it was between them," Oscar notes at some point that
for Holmes everything was the law and when somebody held forth about justice like my grandfather did Holmes argued that he was refusing to think in terms of the evidence, to think in legal terms that's what it was all about between them right to the end, these clashes and passionate opinions he was as obsessed with justice as Holmes was with the law." (42)

Later on, during a conversation between Harry and Christina about old Judge Crease's opinion in the Tatamount case, the contrast between Justice Thomas_ Crease and Justice Holmes is again brought up.

"A story you hear in first year law school, same argument Oscar's grandfather got into with Holmes ... Justice Learned Hand exhorting Holmes `Do justice, sir, do justice!' and Holmes stops their carriage. `That is not my job,' he says. `It's my job to apply the law.'" (43)

Applying the law is precisely what Pai and most of his fellow lawyers and judges do in today's legal system. Justice Holmes and his followers have prevailed. (44) This does not prevent Oscar and his fellow Americans from dreaming about justice, however. And though they are foolish to expect to be rescued by the legal system they have made or inherited, Gaddis implies, "they are not fools to believe that something like justice could exist and perhaps has existed." (45)

Concluding Remarks
Oscar Crease, the protagonist of William Gaddis's A Frolic ofHis Own, sees himself as "the gentleman poet, the last civilized man." The themes that he deals with in his play "Once at Antietam" are the great themes of Western civilization. The play is based on the experiences during the Civil War of Oscar's grandfather, Thomas Crease, who hired substitutes to take his place in the army. For various reasons, one substitute ended up serving on the Confederate side whereas the other joined the Union army, and as fate would have it they met at the bloody battle of Antietam. As he grew older, Thomas Crease became "increasingly haunted by the conviction that the two had killed each other and that he was thus in some fanciful way a walking suicide." (46}

When Oscar brings suit against the producer Constantine Kiester and his film company for having created with the Civil War epic "The Blood in the Red White and Blue" a vulgar travesty of his own play, he is ostensibly doing so out of a wish to vindicate his family. What he is really after, though, claims his stepsister Christina, is recognition and attention. Christina is right in more than one way. Oscar wants to be taken seriously by his father, who has never had any time for him. But he also wants the world at large to recognize that the great themes of Western civilization around which his play revolves are still valid -- even in today's multicultural America where the various subcultures are claiming that all talk of absolute, timeless values merely serves to undermine them. In this endeavor, Oscar ultimately fails. He wins his suit only to discover that all he gets out of it is one-fifth of the movie's net profits. He gets his father enlisted in his cause only to find out that his father's interest stems from love of the law rather than love of his son. He learns upon his father's death that he had been lied to by his father about what really happened to his grandfather during the Civil War -- what he believed to be historical facts are not facts at all. And on top of it all he has to suffer the embarrassment of being told by Kiester's attorney, a "token ethnic" at the prestigious law firm of Swyne & Dour, that the philosophical concerns of his play not only are old-fashioned and irrelevant to a contemporary American audience, but also make a convenient excuse for not dealing with the real problems. Utterly confused and disillusioned, Oscar tells his brother-in-law Harry that "it doesn't really matter does it, just a lot of, it's all those ideas I had that got in the way it's all sort of stiff and old fashioned, characters making speeches and those ideas that just got in the way that's what happened, it doesn't matter." (47)

If Oscar's play is full of "characters making speeches," so is A Frolic of His Own itself. The novel is crowded with voices and dialogue. There is a constant need for words as if putting words on certain key problems will help keep those problems at bay. The one theme that preoccupies everyone is the law. That is no wonder -- one way or the other, every character in the novel is involved in at least one lawsuit. Oscar himself is involved in two. In addition to the copyright infringement suit concerning his play, around which most of the plot revolves, there is the personal injury suit that derives from his getting run over by his own car while trying to jump-start it. This latter suit becomes more and more complex-chiefly due to the fact that Oscar is basically suing himselfand Oscar never really seems to know what is going on. "You're suing the hit and run driver who ran over you aren't you?" asks Christina at some point. "No," Oscar answers, "I'm suing his, I mean my, I'm suing the insurance company for the owner of the car who are suing the, I think they're suing the dealer, the original dealer who's suing the car's maker it's all in the letter I got . . ." (48)

It may be exaggerated to call Oscar a walking legal suicide, but his legal predicament clearly echoes the moral problem of divided selves that haunted his grandfather. "To put it in plain language you might almost say that this is a suit between who you are and who you think you are, the question being which one is the plaintiff and which one is the defendant," as one of his lawyers explains the situation. (49) In the latter part of the nineteenth century, it was "the great riddles of human existence" with which human beings struggled. A hundred years later, it is the law. The legal arena is where the action is in late-twentieth-century America, Gaddis indicates. He is right. In contemporary law-permeated America, every major problem-be it of a political, moral, or social nature-eventually turns into a legal one.

"Questions that do have answers," Harry says to Oscar at one point, "that's what the whole of law's all about." (50) In the world of words created by Gaddis, the legal vernacular serves to make things concrete and thereby manageable. When problems are framed as legal problems, the law does have the answer. But there is more to it than that. The longing for lost values and cultural unity that is so pronounced throughout A Frolic of His Own is similar to the visions of an earlier social and cultural order evoked by what Kenneth Karst has called the cultural counterrevolution. As the cultural counterrevolutionaries see it, law is the most powerful form of expressing and defining meanings in public life. They have consequently waged their war for cultural copyright in the legal arena. For the right side of the American political spectrum no less than for the left, that is, the social issues agenda has been an agenda that is heavily focused on law and its promise. (51)


1. William Gaddis, telephone interview with Laurel Graeber, The New York Times Book Review, Jan. 9,1994, 22, Gaddis died in December 1998.
2. Ibid.
3. William Gaddis, A Frolic of His Own (New York: Simon & Schuster, 1994),13.
4. In his review of A Frolic of His Own ("Jarndyce U S.A.," Times Literary Supplement, no. 4757, June 3, 1994), Zachary Leader mentions that like Oscar, Gaddis himself wrote an unpublished play in the 1950s entitled "Once at Antietam." This may indicate that Gaddis saw himself in Oscar-at least to a certain extent. There is not much to like about Oscar. He is so pretentious and so pathetic that the reader cannot help wondering whether he constitutes an exercise of autobiographical self-criticism on Gaddis's part. "Projections of this type," writes David Cowart, "constitute the examined life of the artist, at once an exorcism of unworthy versions of the self and a rhetorically effective shielding of the vulnerable ego, whose pretensions might otherwise be dismissed by captious readers" ("Heritage and Deracination in Walker's 'Everyday Use,'" Studies in Short Fiction 33: 3 [Summer 1996], graciously supplied to me by David Cowart).
5. The ten-million-dollar lawsuit brought in October 1997 against Steven Spielberg's company, Dream Works SKG, by Barbara Chase-Riboud, the author of the 1989 novel Echo of Lions, claiming that Spielberg has ripped off her book for his film "Amistad," makes one wonder whether Chase-Riboud has read A Frolic of His Own!
6. Robert Weisberg, "Taking Law Seriously," Yale Journal of Law and the Humanities 7.2 (1995): 446.
7. Tony Tanner, City of Words: A Study of American Fiction in the Mid-Twentieth Century (London: Jonathan Cape, I97I), 395-96.
8. Jonathan Raban, "At Home in Babel," New York Review of Books, Feb. 17, 1994, 4.
9. Gaddis, A Frolic of His Own, 29, 33.
10. Ibid., 251.
11. Weisberg, "Taking Law Seriously," 452.
12. Leader, "Jarndyce USA.," 22.
13. Gaddis, A Frolic of His Own, 251.
14. Weisberg, "Taking Law Seriously," 452.
15. Tanner, City of Words, 397.
16. Kenneth L. Karst, Law's Promise, Law's Expression: Visions of Power in the Politics of Race, Gender, and Religion (New Haven, Conn.: Yale University Press, 1993), 3.
17. Ibid., x, 8.
18. Ibid., 43, 33-34, 59.
19. Ibid., 7.
20. The following pages are based upon Robert A. Gorman and Jane C. Ginsburg, Copyright for the Nineties, 4th ed. (Charlottesville, Va.: The Michie Company, 1993), 183. The Shaler, Holmes, and Harlan quotes may be found on 29, 37, and 37, respectively.
21. Sandra Day O'Connor, quoted in Gorman and Ginsburg, Copyright for the Nineties, 30.
22. Feist Publications, Inc. v. Rural Telephone Service, 499 U.S. 340 (1991), as quoted in Gorman and Ginsburg, Copyright for the Nineties, 86.
23. Gaddis, A Frolic of His Own, 348, 349. Here, it would seem, Gaddis, qua artist, somehow sees himself in his pathetic protagonist.
24. Ibid., 376.
25. Leader, "Jarndyce USA.," 22.
26. Gaddis, A Frolic of His Own, 487.
27. Ibid., 266, 267.
28. Tanner, City of Words, 396-97.
29. Ibid.
30. Gaddis, A Frolic ofHis Own, p.8.
31. Ibid., 171.
32. Ibid., 18q.
33. Ibid., 195-96.
34. Ibid., 300, 207.
35. See note 29.
36. Gaddis, A Frolic of His Own, 50, 325-26.
37. Ibid., 330.
38. Ibid., 15.
39. Ibid., 339.
40. Ibid., 85.
41. Please see chap. 3 for a discussion of Anthony Kronman's theories.
42. Gaddis, A Frolic ofHis Own, 98.
43. Ibid., 251.
44. It is interesting to note in this connection that what Duncan Kennedy calls the "critical strategy," or "the left/mpm (modern/ postmodern) project," started with Oliver Wendell Holmes: "My view is that there is an actual, dramatic historical moment when this critical strategy was first formulated. It occurred in 1894, when Oliver Wendell Holmes published his article, "Privilege, Malice, and Intent." In discussing recent English and American labor and common law anti-trust cases, he wrote this sentence: `The ground of decision really comes down to a proposition of policy of rather a delicate nature concerning the merit of the particular benefit to themselves intended by the defendant, and suggests a doubt whether judges with different economic sympathies might not decide such a case differently when brought face to face with the issue.' The rest is history" (Duncan Kennedy, A Critique of Adjudication (fin de siecle [Cambridge, Mass.: Harvard University Press, 19971, 85). See chap. 9 for a longer discussion of Duncan Kennedy and his legal theories.
45. Weisberg, "Taking Law Seriously," 452.
46. Gaddis, A Frolic of His Own, 348, 350.
47. Ibid., 110, 427.
48. Ibid., 385
49. Ibid., 474.
50. Ibid., 398.
51. The special investigation into President Bill Clinton's credibility -- personal as well as professional -- led by Independent Council Kenneth Starr, which led to the second impeachment trial in the history of the United States, is one recent example of a rightwing attempt to use the law for a particular political purpose.

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