Picturing Justice, the On-Line Journal of Law and Popular Culture

Shubha Ghosh
Professor of Law at the University at Buffalo Law School


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The citizens of the anti-commons are not only hypersensitive, they are shrewd and cunning in negotiating their self-interest to satisfy even the most trivial wants and needs.

Feature article

Life in the Anticommons

by Shubha Ghosh

If the show Seinfeld was about nothing, then its descendent Curb Your Enthusiasm is about everything. Both programs are the creative spawn of Larry David, and while the show about two neurotics Jews, a shiksa, and an inveterate shlemiel applied the microscope to the minute details of our lives (like the placement of a button on a shirt, a bit that began and ended the series), David's current show about the insane in Los Angeles (where else?) tries in every episode to connect all the details into one big picture. In the first episode of Curb, for example, David's obsession with the fold of his pants leads to erectile confusion with his wife's friend, a resulting family squabble, and a series of lies that does not end well for our anti-hero. In my favorite episode, David's decision to be nice to a child leads to an elaborate plot involving a doll's head, a broken bathroom door, a bottle of water, and an angry mob that menacingly descends on David at the end of the half hour. In Curb Your Enthusiasm, a whole lot of nothing leads to something both bewildering and exhilarating.

That something is a smart picture of what life is like in the anticommons. For those of you who are not property theorists, or do not pursue legal theory as a hobby, the anticommons describes a world where everything is private. There is no public space, communally shared or enjoyed. The world, both physical and metaphysical, is sliced up into individual rights, guarded religiously. The anticommons is the opposite of the more familiar commons, a world where nothing is private and excessive sharing leads to overuse of resources and eventual decline and fall. In the commons, individuals allow their cattle to overgraze the unrestricted pastures. In the anticommons, merely looking at someone else's cattle can be cause for social sanction.

The world of Curb Your Enthusiasm, which is either real Los Angeles or Los Angeles as extended metaphor, is undoubtedly an anticommons. When Larry David discards an apple core in a trash can by the side of the street, the owner of the trash can reacts viscerally, threatening to kick David's and anyone else's ass the next time the can is so violated. (Unfortunately, the next perpetrator turns out to be Ted Danson, who takes off in flight when the trash can owner sees him defile his precious property.) The citizens of the anti-commons are not only hypersensitive, they are shrewd and cunning in negotiating their self-interest to satisfy even the most trivial wants and needs. In an episode entitled "The Wire," David and his wife attempt to convince their neighbors to help defray the costs of putting an ugly, overhead wire underground. In exchange for their agreement, the neighbors ask for only one thing: a meeting with Julia Louise Dreyfuss, the female lead in Seinfeld. The episode turns into the typical mess, this time involving the failure to coordinate schedules, an overzealous fan with a videocamera appropriating Dreyfuss' image, and David's little black book that could very well have been stolen by someone in the Dreyfuss' household. At the end of the episode, negotiations break down, the offensive wire remains above ground, and the Davids decide, out of necessity, to buy a new house. In the anticommons, small transgressions become magnified through the fluttering of easily ruffled wings.

The anticommons is a world with too many individual rights, and in every episode of Curb Your Enthusiasm, rights not only talk, they shout out, sometimes gratingly, more often with great insight. Perhaps the two best episodes that illustrate just how profound the show can be about rights are the ones entitled "Affirmative Action" and "The Group."

In "Affirmative Action," Larry David does what no person has ever done before on television or, perhaps in real life (certainly in academics): admit that he is completely clueless about race. The episode begins with David unintentionally insulting his friend's dermatologist by asking, in presence of the African-American dermatologist: "You have him as a doctor? With affirmative action and all?" Needless to say, the offended dermatologist storms off, and David's friend asks (as all David's friends are wont to do): "What were you thinking?" David gives the most honest response imaginable: "I just don't know what to say to black people". While some may use the incident to comment on the need for sensitivity, and others to comment on the hypersensitivity of minorities, and others yet to revive vestigal racial attitudes, which are far from defunct, David has the guts to admit that he, as privileged white male, just may not have all the answers. He portrays himself neither as savior or as villain, but as a clueless guy, just bumbling along.

The rest of the episode is a brilliantly choreographed power play as David finds himself having to get back into the good graces of the dermatologist in order to have his wife's prescription for a skin rash medication filled. Following a path strewn with insulted maitre d's and irate pharmacists, the Davids wind up in the living room of the dermatologist with a gathering of his equally successful African-American friends. With his wife scratching an itch next to him, David squirms to explain his earlier comment and return into good favor through supplication.. David, however, falls from grace again when one of the guests emerges from the bathroom and starts berating him for not having any African-American characters on Seinfeld. Rights scream, but the show is not cacophonous. The episode demonstrates the complicated maneuvering that is mandated in a post-civil rights world, where everyone is conscious at some level of societal injustices, but ultimately clueless on how to negotiate the racist demons of the past and their present incarnations.

A different type of oppression and victimhood is the subject of "The Group," an episode in which David attends an incest survivor group to support a friend and shares a wholly fabricated story about being molested by an uncle as a child. When a member of the group, played by Lorraine Newman, meets the uncle at the end of the episode, the true incest survivor takes out her anger on the fictional oppressor. While David's story of abuse is certainly a contrived plot device, the need to make up such a story is consistent with David's character and the episode's representation of victimhood. David's character seems to suffer from a persecution complex, perhaps exacerbated by the hypersensitivities of everyone he encounters. He sees himself as perpetual victim and consequently acts out in a ways that brings out the victim in others. Some undoubtedly would take offense in even broaching the subject of incest in a humourous manner. But the point is to illustrate the dynamic of victimhood and the need to lash out at the oppressor, even a wholly imagined one. Rights do not talk or scream in the episode, but signify the power play among individuals in a fractured and fragmented world.

If Curb Your Enthusiasm was solely about people getting mad at each other over trivial or grave transgressions, the show would be no different from reality television. But there seems to be a trajectory to the series over the three seasons that I, HBO-deprived, have been able to spot on the recently released DVDs. The first season set the framework for the world as anticommons. The second season turned up the volume on this motif through a series of absolutely brilliant episodes that gave depth to the fractionalized world. The third season, however, struck me as less impressive and entertaining than the other two. While this change in tone was disappointing, my reaction to the third season did not reflect a decline in the show's quality. Instead, the episodes of the third season show the characters attempting to find a moral center and retreat from their well-honed self-absorption. The lack of edge to the third reason reflects the dilemma of moving out of the quagmire of the anticommons.

For example, in the episode entitled "The Terrorist Attack," David is told in confidence that Los Angeles is about to be attacked by terrorists. After a failed attempt to use the threat to get out of an obligation to attend a fund raising event with his wife, David uses the information to negotiate good will with the wife of a friend, whom he feels he has snubbed. The self-serving moves are not surprising. What is different is that David, for some reason, cares about the opinion or feeling of another human being. In "The Special Section," this nascent empathy takes on a deeper dimension. David returns to Los Angeles from a business trip in New York to be informed by his father that his mother has passed away (and that the funeral was last Monday). For the first time, David seems distraught and emotionally devastated. That feeling appears shortlived when David tries to use his mother's death as negotiable currency to extricate himself from social obligations. But the feeling makes a shining and memorable reappearance when David learns that his mother was buried in a special section of the Jewish cemetery because of a tattoo on her buttocks. David, committing one of the few unselfish acts in the series, bribes a gravedigger to have his mother dug up and interred in a more respectable part of the cemetary.

The third season also demonstrates David being able to move comfortably across racial and religious lines. In "Krazee-Eyez Killa," David gets along quite well with the eponymous African-American rapper, even advising him on the placement of "motherfucker" in the lyrics of a work-in-progress. When Killa bestows the honor on David of calling him "my nigger," David returns the favor by letting the rapper know that "you are my Caucasian." In "Mary, Joseph, & Larry," David performs penance for disrupting the baptism of his sister-in-law's Jewish fiancé (resulting in the cancellation of the wedding and a heated Jewish-Christian exchange) by hiring a group of Christian actors staging a manger scene to perform at his house during the holidays for his visiting in-laws. But do not think for a moment that humanity has been restored to the anti-commons. The bond with the rapper breaks when David, perhaps accidentally, perhaps not, spills the beans to the rapper's fiancee about his infidelities. And the ecumenical ties with the actors are severed when David comments on the figure of the actress playing Mary, sending Joseph into violent rage against the man of good intentions.

Nonetheless, season three ends optimistically, on a hopeful note for those who think that all is lost in the socially splintered anticommons. The running plot of the third season concerns David opening a new restaurant with his friends and colleagues. This transaction, itself, suggests a movement from the Hobbesian world of previous seasons and the emergence of pacifying and sweetening commerce. In the anticommons, transactions are the main way of building bridges across individuals. But David manages to connect with other people at another level as well. In the final episode of season three, entitled "The Grand Opening," David sees a bunch of high school students who have shaved their heads as a sign of solidarity with a classmate undergoing chemotherapy. David comments, showing for once some depth to his character, that he would like to do something so noble one day. His time comes on the opening night of the restaurant when his head chef, who suffers from Tourette's Syndrome, breaks out in a bout of loud and unprintable swearing. The guests stop eating, and David and his partners are paralyzed in their response. Finally, David has his moment, perhaps the key moment of the series, and he covers up for the chef's affliction by swearing very loudly himself. Soon, everyone in the restaurant begins cursing, David's partner, his father and uncles, his wife's family, and a host of other characters from past episodes. The denizens of the anticommons engage in their first communal act, transcending their selfish, protectionist tendencies in a profanely shared moment.

So after three seasons perhaps there is hope. I cannot wait for the fourth season to come out on DVD so I can see if life in the anticommons has evolved any further. In the meanwhile, I have three DVD sets which have a special place in my library to serve as my portal to a world where social rules and a sense of social solidarity have disintegrated into self-concern, self-aggrandizement, and self-absorption. Hey, they are more entertaining than a faculty meeting or an AALS convention and come with an off button.

Posted March 1, 2005

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