Friday, June 29, 2012

Let Them Eat Broccoli

You may have heard: Big day yesterday in the legal world and in U.S. politics. Constitutionality of the healthcare insurance mandate affirmed so long as we call it a tax; Chief Justice rises above default assumptions about his entrenched partisanship.

What better time to turn briefly to King Lear? That greatest of Will’s tragedies begins with Lear doing a really stupid thing: disinheriting the only daughter who really loves his irascible old self and giving everything—all of his wealth, all of his governing authority—to the two daughters who hate his guts. After a bit of time passes, the king decides to pay one of the daughters a visit. He finds one of his servants in the stocks. He is given the brush off when he asks for an audience with the heads of the house. He starts to fly into a rage and then checks, himself, thinking that his hosts might not be well:

Infirmity doth still neglect all office
Whereto our health is bound; we are not ourselves
When nature, being oppressed, commands the mind
To suffer with the body.

Translation: When we feel like crap, we do not act like our regular selves; our minds start to reflect the suffering that our bodies feel. In the play, this observation is a rationalization. It does not explain why Lear has been treated rudely by his daughter and her husband. They have other reasons than the fake explanation that they are feeling indisposed. But, generally, Lear’s idea—that when the body is out of sorts, so is the mind—is quite true. I’m sure we’ve all been there.

Likewise, when we have to worry about what might happen—to our finances, our family, our plans for the future—should we get really sick, that also “commands the mind to suffer.”

In Shakespeare’s England, people probably didn’t worry too much about the consequences of getting sick because the average life expectancy was only about 30. There were no prescription drugs, just aromatherapy and apothecaries who could dole out herbal remedies and arsenic. “Surgeons” doubled as barbers. Neither the insurance nor hospital industries existed. And leeches were your best bet for countering infections. Bathing itself was suspect—removing all of your clothes and immersing yourself in water was, after all, merely an invitation to the devil.

In today’s England, they have a national healthcare system that is the “third rail” of their politics. No politician dare suggest messing with it or, heaven forbid, privatizing it, so beloved is it by ordinary citizens who can all get whatever medications they need and who do not have to devote a big chunk of their paychecks to insurance premiums. Nor do doctors who work in that system have to incur a lifetime of debt in order to get through medical school so in turn they are not consumed with the idea of pursuing wealth as they commence their practices. Of course, folks on the radio in this country will swear you have to wait in line for a month to get an aspirin. But they, like Lear’s daughters Regan and Goneril, have other motives for saying the things they say, which are frequently divorced from fact.   

Our healthcare system, for many, is kind of like that depicted in Lear. It depends heavily on the largess of family members and, if you are old enough or extremely impoverished, the floor of Medicare or Medicaid. That is because we are the only functioning democracy with the following anomalies in our system:

  • Most of us rely on private insurance plans to help us cover healthcare costs when they arise.
  • Most of us get access to these insurance plans through our employers.
  • If extreme accidents happen, we have to sue people to try to get them to cover our medical costs (except in places like Texas where they have essentially outlawed malpractice suits).
  • We have the very best medical schools and teaching hospitals but charge would-be doctors enormous amounts for this training.
  • Years ago, doctors gave over responsibility for valuating their services to bureaucrats who created a mind-boggling coding system that makes doctors even less interested in participating in a solution to the financial side of their profession.
  • Pharmaceutical companies are hugely profitable and influence public policy in multiple spheres.
  • We don’t believe much in preventative care—certainly not free or cheap access to prevention or discussions about what we could eat to avoid obesity. So the uninsured and unwealthy wait for crises and then go to emergency rooms where they cannot in principle be turned away but where the costs are most exorbitant and are passed on to those paying for insurance.
Lots of these anomalies are intertwined and self-perpetuating. These anomalies also explain why, as Claudio says in Measure for Measure, “The miserable hath no other medicine but only hope.” (III.1).

Wednesday, June 27, 2012

Proud Titania--Daring To "Have It All"

Ill met by moonlight, proud Titania.
A Midsummer Night’s Dream, II.i.60

The women-and-work circles are all abuzz thanks to Anne-Marie Slaughter’s recently released article in The Atlantic: “Why Women Still Can’t Have It All.” The article is a compelling personal account from a woman who seemed as if she had indeed found a way to have it all—tenured position at Princeton, high-level policy job at the State Department, fabulously supportive husband who took on more than half of the parenting duties as necessary. But Slaughter recently walked away from the “dream job” and has now delivered a provocative public confession to explain why. Basically, she indicts the very notion that “work-life balance” is achievable—at least without a cultural revolution. She takes aim in particular at the way career success correlates to being willing to give up all else to submit to a workplace grind that puts such a premium on the sheer number of hours clocked and on “face time” instead of actual value added. Slaughter suggests that the law-firm model, with its “cult of the billable hour” epitomizes the problem.

I must admit that I agree with that last bit. At least I do not have to think very hard to come up with a long list of exceedingly talented women who have left the legal profession or at least opted for lower-prestige jobs primarily because they wanted more out of life—including more than 15 minutes a day with their children—and the partnership track at the country’s best law firms really wasn’t going to accommodate those desires. Many female lawyers leave firms (or do not even start down that track) because they do not want to work in a context where putting in time (and other manifestations of making rain) are the ultimate barometers of their worth.

Women who “opt out” of the professional fast-track after graduating with honors from a top-tier law school are not generally women who just don’t want to work hard anymore; the issue is about how hard work—or, actually, “good work”—is measured and what kind of work really counts as work. I could tell all sorts of amusing tales about how some law firms deal with work-life balance issues. (For instance, there was the time—during the very first outing I took after joining a certain, not-to-be-named law firm—when one of the handful of female partners sat down next to me. She’d heard that I had a toddler in my household and confessed that no female associate with a child had ever tried to make partner before. Then she explained how, after she had had her kid after making partner, she routinely scheduled at least one all-nighter per week so that she could try to be home for dinner all of the other nights. Sure! I thought. I could do that, too. I’ve never been big on sleep anyway. . . .)

But enough already with the war stories. I will simply note here that I left a law firm that demanded an ungodly amount of my time; way too much time—especially in light of that little toddler I had just added to the mix at what the firm (rather reasonably) saw as just the wrong time.

What does Shakespeare have to say about this work-life balance issue? You laugh! Well, it might seem hard to turn to the Bard for help with this one. After all, as I noted in my last post, Shakespeare does not give much airtime to mothers qua mothers in any respect. And even with one of the rare mother-daughter duos—in R & J--the person depicted as doing the real mothering of Juliet is not Lady Capulet, but Juliet’s ebullient Nurse.

Nevertheless, I have managed to identify a Shakespearean character whose struggles with work-family balance are played out for us in a very telling way.

When we first hear of the Fairy Queen Titania in A Midsummer Night’s Dream, her partner, King Oberon, is having a hissy fit because of all the attention she is giving to a newly adopted “changeling.”  The boy’s biological mother, who had been “a vot’ress of [Titanias’s] order,” died in childbirth. Titania then vowed to rear him up as her own. But “jealous Oberon” wants her to prove her affection for him by giving the boy up to be Oberon’s “henchman.” She refuses. Oberon then decides to take his revenge by having his minion, Puck, acquire a “little western flower … purple with love’s wound [that] maiden’s call love-in-idleness.” Oberon instructs Puck to douse Titania’s eyes with the magical juice from this flower as she sleeps. The magical potion guarantees that “she shall pursue with the soul of love” “the next thing then she waking looks upon”—no matter how “vile.”

Despite Oberon’s machinations, we are given the impression that Titania is quite capable of handling her responsibilities as a leader in the fairy world even as she becomes the primary caregiver for a child. She does have a lot of help—Peaseblossom, Moth, Cobweb, and such. And of course she had already achieved the pinnacle of career success when she decided to add maternal duties to her plate. Yet she seems more than prepared to handle the balancing act—and still get a decent night’s sleep—but for the fact that her partner not only refuses to help but insists on throwing additional roadblocks in her way.

That is, there is trouble in fairyland—but not because Titania tries to balance childrearing with the obligations associated with her leadership position. Nature is totally out of joint because of the patriarch’s reaction to this development. As Titania explains to Oberon:

… the winds, piping to us in vain
            As in revenge, have suck’d up from the sea
Contagious fogs; which, falling in the land,
Hath every pelting river made so proud
That they have overborne their continents.
            [etc, etc. etc.]
            And this same progeny of evils comes
            From our debate, from our dissension;
            We are their parents and original.

Oberon’s petty jealousy and recalcitrance are clearly the problem, not Titania’s inability to strike the right work-family balance.  

The fairy leaders are only reconciled in the end when Oberon pretends to come to the rescue by undoing the spell that Titania does not even know he has ordered be inflicted on her in the first place. Talk about inefficiencies! But more importantly, Titania’s ordeal shows that Shakespeare had no problem with the idea of a woman occupying a position of power and going toe-to-toe with the guys, while still finding a way to nurture a child. But doing so does take a village of fairy-helpers. It also takes an accommodating partner (who will not encourage you to fall in love with an ass just so that he will look better by comparison). And it takes adding demanding elements (like caring for a kid) after other elements are already fairly well locked down. Finally, it takes a bit of magic.

That, I think, is basically Slaughter’s thesis in a nutshell.

Amazing how Shakespeare seems to have beaten so many to the punch. . . . 

Monday, June 25, 2012

Pursued By A Bear

I’ll admit it: my family contributed its share to Pixar’s $67-million haul during Brave’s opening weekend. And I’ll lay it all out there and admit that I LOVED this movie. My daughter, however, was too distraught about the heroine’s mother being turned into an enormous, snaggle-toothed, hook-clawed bear to find the event entertaining in anyway whatsoever.

What struck me most about this breathtaking bit of super-expensive computer animation were not the astonishing visual effects, but the story. The plot centers on a complex and ultimately life-affirming mother-daughter relationship. Such relationships are not just an anomaly in Disney films. They are rare in pop culture (Mamma Mia notwithstanding). Certainly, there is nothing of the sort in Shakespeare. Indeed, after the movie, I tried hard and could not come up with a single example of any mother-daughter relationship that gets meaningful airtime in a Shakespeare play.

Mothers in general are pretty scarce in Will’s plays. We have some nice father-daughter relationships (e.g., Lear-Cordelia, Prospero-Miranda). And there is the decidedly awkward, but vivid, mother-son relationship between Queen Gertrude and Prince Hamlet. And then, uhm, well… There are plenty of wives—including some very appealing ones, as I have discussed before. But mothers of daughters? Not really. Except for

--the chilly one between Lady Capulet and Juliet; and

--the fleeting one in Will’s freakishly experimental A Winter’s Tale.

I have a great affection for that wacky play (about which I wrote a Masters thesis many moons ago). But “wacky” is really quite the understatement. No one ever produces the thing because it is just so damn strange. At the outset, the thoroughly charming Queen Hermione is suddenly accused by her husband, absent any evidence whatsoever, of sleeping with his best friend while she is in the advanced stages of pregnancy with the royal couple’s second child. King Leontes becomes so consumed with his own feverish delusion about her infidelity that he plans to assassinate his best friend and imprison his pregnant wife. The friend is tipped off in time and escapes; but the queen has no such luck. The stress of prison causes her to go into labor prematurely and then lapse into a deadly coma. Meanwhile, the young prince dies, too—broken by the shock of having had his mother ripped from him by his own suddenly maniacal dad. The king then reacts to these developments by declaring that the newborn, a baby girl and his sole surviving family member, must be abandoned in the wilderness and left to die of exposure.

The subordinate charged with doing King Leontes’ bidding—a Sicilian named “Antigonus”—sails to the coast of “Bohemia”—a country that has no coast. As he carries the babe through a raging storm, Antigonus tries to comfort her by telling her about a dream he had the night before wherein her dead mother placed a curse on him for what he is about to do:

. . . thy mother
Appear'd to me last night, for ne'er was dream
So like a waking. ….
And gasping to begin some speech, her eyes
Became two spouts: the fury spent, anon
Did this break-from her: 'Good Antigonus,
Since fate, against thy better disposition,
Hath made thy person for the thrower-out
Of my poor babe, according to thine oath,
Places remote enough are in Bohemia,
There weep and leave it crying; and, for the babe
Is counted lost forever, Perdita,
I prithee, call't. For this ungentle business
Put on thee by my lord, thou ne'er shalt see
Thy wife Paulina more.'

So bizarre. Doesn’t even read like Shakespeare.

Antigonus places Baby Perdita by a craggy rock as the storm picks up. He is then the subject of one of theater’s most famous stage directions. Having left the innocent babe to die as per his king’s directive, he “exits pursued by a bear.” We are thus left with the strong impression that, in accordance with his dream, Antigonus does not endure the confrontation and live to see his own wife (or anything else) again. Immediately thereafter, Perdita is rescued by a kind, illiterate shepherd. The play abruptly turns into a romantic comedy. A character identified as “Time” skips on stage and announces that they are just going to skip ahead sixteen years. And—well, I told you it was wacky.

Maybe there is some profound synchronicity in the fact that Pixar’s Brave and Shakespeare’s A Winter’s Tale both involve meaningful roles for bears. But it cannot be said that A Winter’s Tale depicts a complex mother-daughter relationship as Brave does. A Winter’s Tale only shows a mother-daughter relationship ending before it even begins (until it sort of begins again at play’s end when the mother is resurrected from death once the grown daughter, who did not die after all, is reunited with her chastened father after she has fallen in love with the son of her father’s banished best friend—got all that?).

Okay, it’s time to find some way to connect this to the law.

Historically, the law too has had next-to-nothing to say about mother-daughter relationships. Until relatively recently, what the law had to say about wives and mothers was pretty god-awful and mostly involved shoring up the former as property charged with delivering male children to carry on the father’s line. Eventually, the law came to privilege mothers over fathers in at least one context: fault divorce. Yet, in short order, the default rules continued to evolve such that, in divorce cases involving offspring, joint custody is now the norm in principal if not always in practice.

Could it be that Shakespeare, who was so fond of using the law and legal actions as key literary devices, did not have anything to say about mothers-and-daughters because the law did not touch on such relationships? Those relationships were just not “of interest”—whereas at least mothers, through sons, had some hope of having legal standing?? The absence of legal standing hardly means that such relationships are without significance to those who have been a party to them. Indeed, there are few types of relationships fraught with more complexity. Which is why it really is a delight to see a major motion picture fairytale that takes on one of those relationships. Instead of settling for an evil step-mother working to annihilate the daughter-figure, Brave depicts a loving, if somewhat frustrated, mom wrestling with a daughter’s legitimate—and legitimately painful—rebellion such that they learn to “bear” each other as the daughter prepares to exit childhood. And, perhaps, only by becoming the Mama Bear herself does the daughter begin to learn to forgive the mother--who turned out to be no mythic queen or goddess, but merely, though not simply, human.

Sunday, June 24, 2012

Play Many Parts

Got around to opening the latest edition of “Austin Lawyer,” the local bar’s monthly newsletter. I like to read the legal-writing column by my friend and colleague, Wayne Schiess. He offices next door to me, but it is still good to see what I can learn from him without having to shout at through the adjoining hall. This month Wayne describes the writing process of the Pulitzer Prize-winning author, Robert Caro. Wayne identifies a 10-part process that he attributes to Caro and suggests that legal writers could benefit from adopting a similar “editing-oriented, recursive, multi-step process.” I absolutely agree. A commonality among law students and lawyers who struggle with their writing is that they tend to think you should move breezily from outline to draft to a final proof in rapid succession. (And sometimes they even skip that outlining step.) In reality, producing any decent work product is far more about labor-intensive revising then about unfettered drafting. Indeed, in my view, quality written work generally can be explained by two things: a big investment of time and obsessive, self-criticism.

Elsewhere, I have described the legal-writing process in terms of seven stages, borrowing from Shakespeare—surprise, surprise. My “seven stages” roughly parallel the “seven ages of man” identified by the theatrically melancholy Jaques in As You Like It. In a monologue that is one of my daughter’s favorites, Jaques explains life as an eventful, but predictable journey from “mewling and puking in the nurse’s arms” to “second childishness and mere oblivion.” You probably know how the speech begins even if you have never seen the play or don’t remember the context:

. . . . All the world’s a stage,
And all the men and women merely players;
They have their exits and their entrances,
And one man in his time plays many parts,
His acts being seven ages.


Each stage of the writing process, like the seven ages of man, suggests a chronological sequence. But unlike life where time’s vector only goes one way, you don’t always move through these stages of the writing process in a straight line. Expecting to do so can short-circuit the creative process.

No kidding: I really believe that legal writing is a creative enterprise.

In law school and in law practice, many see “creativity” as a euphemism for trouble, a backhanded compliment akin to “For a fat girl, she doesn’t sweat much.”  Most likely, this fear of the “c” word is because the usual Type-A person who embraces law as a career path does so promptly after proceeding in a straight line from gestation to graduation with high honors. And because of this linear trajectory, many lawyers do not have much basis for comparison. They do not know what it takes to excel in a profession because, before law school, they did not spend much time trying on different professional hats.

In truth, creativity is a critical component of success in any arena. Creativity requires mental agility, passion, sensitivity, integrity, energy, focus, drive, self-sacrifice—all traits helpful to law practice. Sadly, these traits would not likely be the first to spring to the minds of laypeople asked to describe lawyers. Yet one reason good lawyers are paid so handsomely is because they are creative thinkers.

Legal writing expert, Bryan Garner, is quite clear about the important role creative thinking plays in legal writing. In the first chapter of The Winning Brief, for instance, Garner introduces “The Flowers Paradigm,” developed by Betty Sue Flowers, who was among Garner’s mentors in the English Department at the University of Texas. That paradigm describes the writing process in terms of four roles:  madman, architect, carpenter, judge. The madman is the mad genius, full of ideas, long on enthusiasm, perhaps prone to sloppy thinking. In The Flowers Paradigm, the madman is the generative spirit essential to the writing process. And for the madman to do his thing effectively, he needs a little space without the judge breathing down his neck.

To suggest, however, that the madman role is the only creative part of the legal writing process would be to over-simplify. Creativity involves more than generating raw material that the other, less crazed parts of the lawyer will ultimately sculpt into respectable work product. Being truly creative or inventive requires discipline. And it requires substantial preparation. Any seven-year-old can twirl around ecstatically to music and fancy herself a fabulous dancer. And all seven-year-olds so engaged are generally adorable. But no matter how authentic their feelings, they are not really being creative. I submit that all untrained seven-year-olds leaping about to music look pretty much the same because the palette of choices they have to work with is, shall we say, limited. To really create something, that seven-year-old is going to have to spend some serious hours in a studio developing both muscles and technique and learning the conventions associated with different dance forms. Then, once she has a solid foundation, she can start experimenting to produce something that is not merely derivative.

Similarly, the legal writer cannot do the hard work of creating effective work product until the writer has invested significant time mastering the rules associated with a particular project. All useful legal writing is, after all, tethered to rules—not just legal rules that must be identified, analyzed, and applied to a particular legal problem, and not just fundamentals of grammar, spelling, syntax. Any legal work product prepared for a court is supposed to respect rules of the relevant jurisdiction (e.g., state or federal rules of procedure) and the specific court’s “local rules” and even judge-specific “local-local rules.” And all legal writing is governed by rules of professional responsibility requiring lawyers to avoid tactics associated with used-car salesman.  Each legal writing genre is governed by express and implicit rules about appropriate organization, sentence structure, word choices, and tone. Comprehending all of those rules is a necessary part of the creative process—just as jazz musicians must master music theory and a wealth of musical motifs before they can hope to improvise a truly creative riff on a standard.

A creative legal writer does not, however, strive to be revolutionary. Mostly, the initial ideas for writing projects are borne of real-world problems that clients need solved. Moreover, being inventive with respect to legal source material is absolutely verboten. No legal writer should ever “get creative” in describing the contents of a particular judicial opinion or the material facts at issue in a particular case. Such conduct is a formula for court sanctions. Nevertheless, creativity—broadly and more accurately understood—should inform the entire legal writing process because creativity does not just mean “making stuff up.”  Despite what Theseus says in A Midsummer Night’s Dream says, the madman and the poet are not “of imagination all compact.” (V. 1.7–8.)  Unbridled madness will paralyze or destroy the creative impulse in the long run. I offer the sad fate of poet Sylvia Plath as an example. Her madness provided material for some of her poetry and probably motivated her to want to get “outside of herself” through the creative process. But, in short order, her madness interfered with her work as a poet, cutting short her life at age thirty when her latest suicide attempt proved successful.

To be a poet, and not just a madman, a person needs to be disciplined, focused, grounded, and self-critical, as well as imaginative. Similarly, to be a creative lawyer a person needs knowledge, discipline, the ability to see patterns, nuance, and fissures, and the skill to teach others how to see those same phenomena such that they are then inclined to act in a way that furthers a client’s cause. The creative legal writer must, therefore, be willing and able to see situations from several different perspectives and be able to keep those differences straight.

In sum, being creative is not synonymous with madness; and the writing process involves more than going mad. Being creative is a multi-faceted process—whether one is a dancer, jazz musician, poet, or legal writer. The process is prefaced by long hours drilling at the ballet bar, practicing scales, mastering technique, learning to think analytically. It then involves harnessing inspiration and using that energy to forge something new that resonates with an audience because, despite its novelty, it respects the rules associated with a given genre.

Thursday, June 21, 2012

Whether Tis Nobler In The Mind To Suffer

This week my daughter and I decided to tackle memorizing the big “To be or not to be” speech—one sentence at a time. One sentence, though, is kind of long. It is essentially a laundry list of all sorts of things that make life rather dreary. My daughter thought one item on the list was just hilarious. That item was: “the law’s delay.” I don’t know exactly why she thought that one was such a scream. She is only nine, after all. She has yet to experience directly just how excruciatingly slow the wheels of justice can be. Perhaps this phrase just struck her like the time we were playing the game of “Life” with one of her friends and that friend’s mother, who happens to be a doctor. The girls thought it was a riot when a move led to “the doctor suing the lawyer.” Hysterical!!!!

My daughter’s laughter notwithstanding, anyone who has practiced law or been a party to a lawsuit knows what Hamlet means by “the law’s delay” and why it belongs on a list with “the whips and scorns of time” and “the pangs of despised love.”

In fact, one thing lawyers can virtually guarantee a client is that, if legal action is necessary, the resolution of whatever dispute is plaguing that client will likely be deferred even longer. Of course, taking a matter to a court is sometimes better than just taking whatever is being dished out. But filing a lawsuit will not usually speed up the resumption of peace or a return to “the status quo ante.” Lawyering does not speed up much of anything; and courts themselves are apt to take their own sweet time about making decisions.

Those of us who practice law know that the law’s delay can also be a good thing—and/or at least a strategically useful thing. Delay can cool things down; delay can buy precise time to accomplish legitimate ends.

We are seeing this duality in the little chess game being played out right now between a Congressional committee and the Attorney General. The committee has demanded production of all kinds of super-sensitive documents; the AG’s office claimed they needed time to gather and review responsive documents; the committee then declared it was sick of waiting and threatened the rather dramatic step of voting to hold AG Holder in contempt; the President then stated that it was going to assert executive privilege as to documents that, arguably, the AG has no legal right to simply hand over; and then the committee took its vote anyway, finding, along party lines, that AG Holder should be held in contempt. The “strategery” will likely continue.

With lawyers:

  • If your client is the one who wants certain documents, you always think the other side’s production is too slow.
  • If your client is the one being asked to turn over its sensitive documents, you always think you are being unduly rushed.
Yet both sides count on the fact that the law provides for rules of engagement when dealing with these exercises. The law also has mechanisms for asserting certain privileges with regard to certain kinds of qualifying documents and for challenging the assertion of such privileges.
Sorting out the whole thing is generally no fun at all and often feels like a monumental waste of time. Or at least those on the outside tend to look on such exercises as needless delay.

But whether the delay is warranted or not, the processes that permit parties to both demand documents and to protect certain documents—especially from public disclosure—serve an important function, even if lawyers are constantly trying to game the system. Without those rules, abuses would be even more likely and more outrageous. Lawyers know this deep down; the rules keep people from killing each other (or worse). But lawyers also get so caught up in the game sometimes that they forget that, people on the outside—like Hamlet, my daughter, ordinary citizens—tend to view delay solely with suspicion—as mere stalling, which can only mean that a person is trying to hide something really bad.

I’m just saying that I agree with Hamlet that “the law’s delay” is something that can make a person want to end it all “with a bare bodkin.” But I am also saying that insisting on rights afforded by the rules, which may entitle a person to more time to accomplish a serious task, is not inherently a bad thing. It is generally a good thing if your job is to look out for that person's legal rights. To know if rules are being abused, a person has to know the full story. Rushing to judgment generally produces even more sinister results than attempts to exploit the law’s delay.

Monday, June 18, 2012

As With Collards

Unquiet meals make ill digestions.
The Comedy of Errors, V.1.81
Last night I had a transformative experience. Before last night, I believed that I was averse to collard greens. And that is a conspicuous understatement. This perception of mine dates back to childhood when I was first introduced to collards that had been boiled for two days straight in a vat of salt along with a ham hock and some other unidentified animal parts. These collard greens had been prepared by a particularly surly Mama who insisted that her daughter and I, her overnight guest, eat at least five heaping spoonfuls of said greens before we would be excused from the table and permitted to resume the activities that had hithertofore so happily absorbed our attention. The explanation justifying this mandate had something to do with the salutary nature of this vegetable and the woman’s assurance that: “Around here, children eat what I tell ’em to eat. And I’ll be god-damned if I’m in a mood to start making exceptions over a bowl of perfectly good greens.”

Over the years, I have made peace with greens of various kinds. Even come to relish consuming some. But collard greens? Ugh. Just saying the words was enough to unsettle my lower track. But yesterday my husband specifically requested that “collard greens” be part of the Father’s Day dinner menu. Instead of arguing the point, on a whim, I decided to try to conquer my long-standing fear. To do so, I employed a strategy that did not involve any ham hocks, but would otherwise take a page out of the Cajun-cooking playbook. After all, I figured, I could probably stomach a few bites of anything masked by sufficient firepower. 

Surprise, surprise, I didn’t just choke down a few bites. I discovered that I liked those collard greens. In fact, I can’t wait to cook up some more—with even more garlic this time (and a tad fewer tomatoes. . . .)

The point?

A person could hastily derive several morals from this little tale:

·         You should never try to make kids eat anything because you’ll just create life-long aversions that may never be overcome except by happy accidents of garlic.
·         Kids don’t like greens, so you should at least wait until their taste buds mature before subjecting them to a whole bowlful.
·         Everyone can grow to love greens, given the right recipe.
·         Overcoming any and all aversions is possible.

But each of these generalizations is readily rebuttable:

·         With some kids, if you do not encourage them to try things, they will never eat anything except Mac-n-Cheese, cheese pizza, and Happy Meals.
·         My brother loved greens—everything and anything green—the moment he sprang from the same womb that had borne me.
·         The “there is a recipe for everyone” argument sounds like the dreadfully insensitive one I made in my youth to my first vegetarian friend: “I bet you don’t like steak because the ones you tried were always overcooked. Meat should be a little bloody, you know.”
·         And no way can you convince my husband that there is any mechanism that could help him overcome his aversion to cockroaches, great and small.

Some things are just difficult for a person—either because of an early trauma, because of the reality that tastes vary, because of some underlying belief or principle, or because of some wholly irrational fear. For some, Shakespeare is like that: impossibly difficult. At least that is what my husband has been insisting lately. “Gretch, people just find the stuff impenetrable.”

I have already argued that difficult things, like Shakespeare, can and should be embraced—especially by lawyers. Besides, the idea that, just because something is “difficult” means that people will forever shun it, is a gross oversimplification analogous to my collard-green precepts. My husband, for instance, has been a big fan of all kinds of objectively difficult things: phenomenology, quantum mechanics, French grammar, Leonard Cohen’s singing. People can and do like all kinds of “difficult” things. The interesting question is: why do some difficult things simply appeal to some people right off the bat whereas others need some kind of awakening to discover their value?

I do not know. When I’ve been asked to explain how I came to love Shakespeare, I have not been able to identify a collard-greens moment. Instead, I just know that, by high school, I already self-identified as a “Shakespeare fan”—and not just because I fancied myself to be an actress. (Besides, plenty of actors have the same Shakespeare-phobia that other folks do; in other words, those who would be actors is a much larger set than those who automatically love Shakespeare.) But because I love Shakespeare so much, I want to figure out how to create collard-greens moments for others. I want to do this not only because I love the guy, but because that is what teachers do.

And that is what lawyers do.

Lawyers are forever trying to find inventive ways to get people to eat their collards and appreciate them, too—which means that blatantly coercive tactics generally do not get the job done. Thinking like a lawyer, suggests that I should pursue my Shakespeare-is-akin-to-collards teaching while keeping the following in mind:

·         If someone already likes collards, then convincing them that collards are a good thing is no big accomplishment.
·         Because some people think they hate collards, I need to be sensitive to that fact but should not assume that the hatred is insurmountable.
·         As with any “difficult” thing, some people may never come to appreciate collards. But those people should not dictate taking collards off the menu.
·         Maybe the world can go on turning without collards, but the possibility of expanding just one palate may be worth a certain amount of experimentation.

These generalizations are better than the collard-greens precepts listed above because these arguments are not so easily rebutted. That’s what lawyers attempting to serve collards (or Shakespeare) need to recognize: arguments that truly resonate are ones that withstand at least a wee bit of thinking because “there is nothing either good or bad, but thinking makes it so.” (Hamlet, II.2.250-1).

Thursday, June 14, 2012

Matter of More Worth Pt. 2

Give me my Romeo; and, when he shall die,
Take him and cut him out in little stars,
And he will make the face of heaven so fine
That all the world will be in love with night
And pay no worship to the garish sun.

Shakespeare himself would not be a likely nominee for “Husband of [Any] Year.” But what does his work suggest about his view of marriage?

Overwhelmingly, the plays depict marriage, and wives in particular, in both positive and nuanced ways. That fact—what some literary critics have called Shakespeare’s “gynaecolatry”—might be seen as a tremendous irony in light of his biography. (Or as yet more proof that the character from Stratford was not the guy who wrote those plays.) Or you could see the contradiction as the artist’s version of a busman’s holiday problem: he could write beautifully about something that he had no energy for when he was “off duty.” Sadly, it is not difficult to find examples of all sorts of artists and philosophers who expressed great passion and sensitivity about the human condition who had no patience for actual human beings. In any event, marriages in Shakespeare are generally treated as a very good thing; and when they go badly, if the blame can be laid exclusively on one half of the corporation, it is usually the male half. See, e.g., Othello.

Marriage is both implicitly and explicitly celebrated as an institution in Shakespeare, yet he doesn’t really depict “traditional” marriages where the participants stick with traditional gender roles and thus live happily ever after. For instance, in so many of the comedies, the girl gets her man by dressing up as a boy and seducing the “straight” guy by being smarter and more interesting than he is. See, e.g., Rosalind in As You Like It and Viola in Twelfth Night.   

The only play where we have what looks like a wife submitting demurely to a traditional patriarchal husband is at the end of The Taming of the Shrew. But that result—such that spirited Kate seems to be broken/tamed by play’s end—is really too abrupt, too silly to be taken seriously. The author seems to beg us to see Kate’s submissive performance as a self-conscious joke. The lack-of-seriousness is built into the singsong-y meter and forced rhymes of Kate’s last speech. For example, are we really supposed to believe that it is a good thing that the woman who, during the preceding four Acts, has displayed incredibly sharp, quick, inventive verbal skills ends up saying things like this:

Fie, fie! unknit that threatening unkind brow,
And dart not scornful glances from those eyes,        
To wound thy lord, thy king, thy governor[.]

And how about this patently awful pair of couplets at the end of her big speech:

Then vail your stomachs, for it is no boot,
And place your hands below your husband's foot:
In token of which duty, if he please,
My hand is ready; may it do him ease.

Come on. No way Will wants us to think she believes that crap—or that he is recommending this display as something women should really emulate.

So I am standing my ground: Shakespeare was not one to promote conformity—in marriage or otherwise.

But what about all those weddings? Isn’t that promoting convention?

Okay, sure, Shakespeare liked to use the convention of a wedding to symbolize a “happy ending”—a celebratory closing that also suggests a fresh start, that life will go on despite all the horror human beings are capable of inflicting upon one another. Virtually all of the comedies wrap up with the announcement that one or two or even four or more couples are going to get hitched in the near future. BUT in all of Shakespeare only one wedding ceremony takes place that involves The Church—and that one is a bit sketchy.

I am speaking of Romeo and Juliet. The kids’ co-conspirator, Friar Lawrence, sees that they cannot keep their hands off each other. So he agrees to perform a quick, secret ceremony in his monastic cell:

Come, come with me, and we will make short work;
For, by your leaves, you shall not stay alone
Till holy church incorporate two in one.

We don’t see the actual ceremony; but we know that the Friar performs it although he knows that the couple only met the day before. He also knows full well that their parents definitely would NOT approve of the arrangement if they had a clue what was going on. And these are mere teenagers we are talking about! So this “religious service” is not exactly a rousing endorsement of the role religion plays in sanctifying marriage. And The Church’s (secret) blessing most certainly does not insulate R & J from disaster for very long. They have one fantastic night together; then he must skip town at dawn because he has been officially banished for killing Juliet’s cousin. When the couple is eventually reunited, it is in a tomb. He kills himself thinking she is already dead. Then she, waking up to find his dead body on top of her, kills herself with his dagger. Yep. Shakespeare’s most famous love story, and the only one depicting a religiously sanctified marriage, never progresses beyond a frenzied, one-night honeymoon.

The only other wedding ceremony is in The Tempest. It is a psychedelic affair involving pagan goddesses conjured up by Prospero for his daughter Miranda and her new beau Ferdinand. The latter is the son of the King of Naples. During the wedding masque, the King is wandering around elsewhere on the enchanted island, laboring under the misapprehension that his dear boy and heir to the throne drowned at sea in the storm that Prospero’s magic created. Aside from the happy couple, the only witness to the ceremony is Prospero himself. And the whole thing—a colorful tribute to fertility—is cut a bit short by news that Prospero’s disgruntled slave, Caliban, has joined forces with some drunken sailors who are headed that way to try to assassinate Prospero. Not exactly a “traditional” wedding. But it does usher in what looks like a truly promising partnership between Miranda and Ferdinand who spend their first date as a married couple playing chess.

I could go on and on. But I can envision my own husband saying, “But you really don’t have to….”—as a not-so-subtle hint that I have already rambled on long enough, thank you very much.

I’ll conclude simply by insisting that we can learn a lot about the promise, pleasure, and pitfalls of marriage from Shakespeare’s plays. One thing we learn is that this old institution is a complicated thing that resists easy classification. Therefore, legal arguments about the proper role of the modern state in determining who can get married, how it is accomplished, and what it means once you get there should, perhaps, be similarly nuanced.

Wednesday, June 13, 2012

Matter of More Worth Pt. 1

Marriage is a matter of more worth
Than to be dealt in by attorneyship.
Henry VI Pt. 1 (V.5.55-56)

June is “traditionally” wedding season. So it seems like a fine time to use Shakespeare to muse about the concept of “traditional marriage.” After all, Shakespeare did get married; and the way that event came about can tell us something about this “tradition” in his day. He also used marriage as a literary trope in ways that tell us less about traditional marriage but a lot about marriage as a universal aspiration, infinitely varied in its specific manifestations, which can be a force for both profound good and misery.

Shakespeare’s Marriage: A Love Story?!

Hardly. Here are the scandalous details:
·         He was only 17 or 18 at the time, which means he’d not yet achieved legal majority and so needed Dad’s permission to go through with the deed.
·         His wife was 8 years older than he was.
·         She was already pregnant.
·         They were in such a rush that they had to short-circuit the then-mandated Church approach to getting hitched, which required reading some legal document to the congregation for at least 3 consecutive Sundays to see if anyone had a problem with the arrangement—such as knowledge that someone else had a prior legal claim to the property (aka the bride).
·         Short-circuiting the “normal” approach required that the couple get a special dispensation from a bishop willing to vouch for the marriage bond. That meant coming up with some serious cash. (Seems that such bonds were to hedge against the possibility of having to pay off other claimants should they show up and object, thereby saving the bishop from unseemly embarrassment after he’d stuck his neck out.)
·         The official records seeming to memorialize the Shakespeares’ marriage not only spelled his name two slightly different ways (no biggie) they royally screwed up the wife’s name. In one entry she was identified as “Annam Whateley” in another as “Anne Hathwey.” (She is now usually referred to as “Anne Hathaway.”)
·         At some point, not long after the birth of three kiddos (including twins), Will ditched sleepy Stratford-upon-Avon and took off for London on his own. He seems to have stayed away for a good 15 years or so.
·         Aside from the marriage and baptism records, the only other record that expressly refers to their marriage is Shakespeare’s mean-spirited last will and testament. In that document, as an afterthought, he leaves his wife “the second best bed” and nothing more.

I bet you’ll agree that these scant facts do not paint a portrait of nuptial bliss. But these details do tell us something about “traditional marriage” back in the day. Let’s compare then and now to see how much has changed:

·         Back then, for minors to get married, they needed Dad’s permission. Mom’s permission did not count because she had no legal authority. Today, states still have “age of consent” laws, which mostly set 18 as the cut off (but in liberal Alabama they’ll let you marry at 14 if the folks give their okay).
·         Back then, marrying an older woman was not illegal, but certainly raised eyebrows—unless of course she was worth a pretty penny. Today? Don’t think much has changed.
·         Back then, pregnancy was a reason to speed things along. Today, having children “out of wedlock” is still socially challenging in some quarters and economically challenging when it results in a single-parent household. But it is not hard to think of successful people who have had kids and stayed together to raise them despite the absence of a marriage license without having to wear a scarlet letter.
·         Back then, paying off a bishop could smooth the path to legitimacy. That is, money could buy you an end-run around “traditional” protocol.  Today, we don’t necessarily need to pay off a bishop. But marriage is still the only private contract that the State has to sanction to make it legally binding.  The terms, however, are not dictated by The Church (and I do mean “the” not “a”). In Shakespeare’s day, there was only one state-approved church at a time, and, arguably, The Church had more power than the State. Even so, a lot of people still want “a” (not “the”) church, temple, or mosque to give its blessing along with the State’s when they decide to get married; but many religious organizations will give the couples some flexibility in terms of picking texts, venue, timing, etc.
·         Back then, all property that a woman brought into a marriage or that she acquired during a marriage belonged to the husband as a matter of law. If the guy chose to write her out of the will, that was his prerogative. Today, the default rules vary from state to state but many embrace some kind of community property default rules. At the very least, women in recent years have been able to own property and are no longer defined as property themselves.

The take-away?

  • The objectives of “traditional [Elizabethan] marriage” were to shore up property for patriarchs, ensure legitimacy for offspring, and to get rid of daughters.
  • Contemporary marriage is easily distinguishable from “traditional marriage” in all sorts of ways.
  • Most of the ways that marriage has evolved should make us shout “Hooray.”
  • Then and now, a marriage contract will not be viewed as legal unless the State has blessed it.

Without the State’s blessing, those who merely consider themselves married in body, mind, and soul are not going to be able to lay claim to the panoply of legal rights, privileges, and obligations that the modern State affords to married couples. A couple who wants something beyond all of that squishy one-true-love-forever-and-always stuff is going to have to get the State to check the box first. But the kind of marriages that the State will approve and the way two people can go about solemnizing their new status has changed considerably.

Hmm, you say, if we just look back a few hundred years, we can see noteworthy change in this arena. So why couldn’t there be yet more change?

And that would be a good question. And because it is a good question—meaning, a legitimate question grounded in some understanding of history, facts, stuff like that—we should not be content when those resisting change declare that an institution should not change because “that is the way it has always been.”

These “We can’t change our approach to x because x has always been done this way” arguments often rest on two fallacies.

First, the argument usually relies on some very short-term notion of “always.” That is, their concept of “always” is like my 9-year-old daughter’s who often postulates that if something has happened two times in recent memory, then that is “always” the way it happens, e.g.: “We always have pasta for dinner.” And the corollary of that one is the thesis that something “never” happens because it is not happening at that particular moment, e.g.: “I never get to stay up late.”

Second, the argument-from-tradition presupposes, without analysis, that the imagined tradition is wholly desirable. Therefore, change is bad.

But with marriage, the tradition has already changed considerably since Elizabethan times. (And let’s not get started on Biblical times just yet.) Moreover, I do not see lots of people clamoring to go back, except, perhaps, those who want all civil law to be derived from Sharia law or some other religious doctrine.

You might say, Well, the “That’s the way it has always been done” argument does have some force in legal circles because the legal system is all about precedent.

That is true. Those charged with interpreting the law are supposed to be tethered by the principle of stare decisis—which is basically the legal version of the Law of Inertia. But even in the law, arguments based on precedents—even precedent that is squarely on point—can fail when the precedent reflects a view of a social institution that has not aged well. Precedents can be overturned. “Traditional” notions can be rejected. Even “traditional” notions about a tradition like marriage can be invalidated as a matter of law. See, e.g., Loving v. Virginia, 388 U.S. 1 (1967) (unanimously overturning an 84-year-old precedent and finding Virginia's traditional ban on interracial marriage unconstitutional).