Monday, July 30, 2012

Words, words, words

Hamlet says “Words, words, words” in response to an annoying question from a guy named Polonius: “What do you read, my lord?” (II.2)

How should we interpret this famous line?

On one hand, Hamlet’s response seems to mean “I am just reading words”—as in “nothing of importance, especially since I am wandering around this castle depressed out of my mind because I believe my uncle, who is now married to my mother, killed my father and what solace can I possibly hope to find in some stinkin’ book?”

On the other hand, we have to remember who is talking here: Hamlet, the guy who loves nothing more than words; the guy who is all about words, whose soliloquizing is world famous! Words are his bread and butter. Therefore, he could be saying that even words—something he really cherishes—is just not sufficient to help him negotiate his existential crisis and that has him scared.

On yet another hand, Hamlet is probably just being snide because the person who has asked him this lame question is clearly aligned with the new king (the murdering uncle) and is in the process of not-so-subtly spying on Hamlet at that very moment because the new king wants to know if Hamlet has gone mad or is just faking it.

If I had yet one more hand, I could make a really profound point. That point would be that, as with Hamlet, for lawyers words are never “just words.”

“Just words.” A deceptive phrase if ever there was one.  Words can hurt a great deal more than sticks or stones. And they can do as much to transform how people see the world as non-verbal deeds can. Consider Martin Luther King, Jr.’s “I Have a Dream” speech as an example. Words not only “trigger” action, as Judge Learned Hand suggested, they are actions—at least when they travel from one person to another. And I am not referring only to that which philosophers call “speech acts,” such as words consecrating a marriage (“I now pronounce you husband and wife.”). Words in motion can be criticism, praise, inspiration, provocation, education, deception, seduction, persuasion, instruction, analysis, commentary—  You get the idea.

Getting the words just right is an essential part of good lawyering (or even “the” essential part?). So it pains me to recall that, when I was a child, I used to roll my eyes and groan theatrically when my mother directed me to the dictionary in response to my relentless questions about the proper spelling or meaning of words. (Even more appalling is seeing that behavior re-enacted for me, as if by magic, by my own daughter.)

Yet every normal, non-lawyer was appalled when Bill Clinton famously testified that his answer to a certain pointed question from a special prosecutor “depends upon what the meaning of the word 'is' is.” But lawyers know that HUGE legal matters often hinge on the interpretation of a single word. Ask any patent lawyer. Also ask my pal, Master Blawgger Barry Barnett who recently wrote a very funny, biting post about this very topic featuring my favorite recurrent characters: “Snappy and Bitey Talk About What ‘So’ Means.” Legal analysis that turns on a single word—especially one that does not seem particularly susceptible to interpretation, such as “is” or “so”—can seem infuriating. But it is a key part of lawyering and judging. And not just in a bad way. Sure, in some hands, the practice can seem manipulative—like a ruse to finagle one’s way to the result one had in mind from the outset. But in other hands, the practice can seem like Caution and Reason incarnate. A genuine quest for understanding. A profound reminder that words are not, after all, stones. Even though words can break your bones, they are not solid lumps that stay reliably fixed for long stretches. If that were the case, no one today would have a bit of trouble understanding all those words that Shakespeare put in the mouth of Prince Hamlet.

Tuesday, July 24, 2012

Meta Talk

In lit-crit circles, “meta-discourse” or “meta-criticism” has been big for so long that it is now as passé as polyester paisley-print leisurewear. “Critical theory,” its more common name, exploded on the American intellectual scene in the early ‘70s. Inspired by a bunch of frogs—Derrida, Foucault, Lyotard, Lacan, de Man—the movement took aim at the fundamental premises of criticism, the very act of judging texts, and the practice of interpretation. Criticism about criticism. This approach to texts also prompted great interest among literary scholars in writing that is self-referential such that readers are forced to remain conscious that they are reading something that has been constructed by an author—instead of merely being seduced, for instance, by a gripping plot.

Oh so postmodern.

But really, Shakespeare was all over this concept long before the Derrida Man came to town. Shakespeare weaves self-referential bits into many plays and sonnets. He gives us plays-within-plays and numerous extended metaphors about theater. For instance, Hamlet uses a traveling band of actors to put on a play, which Hamlet calls “The Mousetrap,” to “catch the conscience of a king;” that endeavor reminds the audience that it is watching a play, but also underscores Shakespeare’s tragic theme: Hamlet, who is obsessed with deceptive appearances, employs artifice to get at the truth. Similarly, Shakespeare has the “mechanicals” in A Midsummer Night’s Dream rehearse a play in the woods about two young lovers whose demise looks an awful lot like the plot of another play Shakespeare had written a few years earlier. And this self-referential, self-deprecating critique makes the mechanicals’ naively sincere performance even more hilarious. Likewise, in the sonnets Shakespeare does a lot of writing about writing: “If this be error and upon me prov’d,/ I never writ nor no man ever loved.” Shakespeare uses meta-talk as a potent literary tool that goes well beyond just reminding the audience that texts are cultural constructions.

I mention all this because it struck me the other day that one of the cool things about the common-law tradition is that the whole enterprise amounts to meta-talk. Maybe that is why Shakespeare was so drawn to the law as an enterprise. Cases consist of talk about other cases—which is one reason why cases are so tough for even really smart people to read. Before the reader is in a position to assess or even comprehend what some court is saying in a particular case, they have to read a bunch of other cases to which the opinion cites. And sometimes a case only makes sense if you also track down certain highly relevant cases that preceded a particular opinion that the court chose not to cite. Yes, our law is overtly comprised of meta-talk. Yet people are often shocked and dismayed by the notion that case law is constructed by particular authors, not delivered on tablets from on high. And perhaps people forget this because only with dissents and concurrences is an author’s meta-talk tied expressly to a particular authorial voice. More likely, people forget about the constructed nature of the law because most people are not actually spending their days reading cases. They rely on what others—often non-lawyers—say the law says such that the meta nature of the law is harder to see. But seeing the law as meta-discourse really is essential to making any sense out of why courts decide things the way they do—whether one is pleased with a given holding or not.

I end this post with some meta-talk of my own: blawging about a blawg post. I’d like to call attention to a recent post on Balkinization by Joey Fishkin: “Who’s Afraid of the Medicaid Expansion (and Why)?” This post provides concrete rebuttal points to those arguing that states should “just say no” to the Medicaid expansion provided for in the Affordable Care Act (aka Obamacare). I turned to this post for guidance after I realized that I was not entirely sure about: (1) how the Medicaid expansion is supposed to work and (2) why certain governors were going to such lengths to say “no” in advance on behalf of their entire states using rhetoric that sounds a bit like nostalgia for the ole Jim Crow era. Fishkin’s post is lively, accessible, informative, and provocative. Except for being even more long-winded than I tend to be, it exemplifies blawgging at its best. I am grateful for the schooling. Perhaps if I had read it sooner I would have been in a better position to keep up with a doctor-friend during a recent conversation on this topic instead of free-lancing in a way totally unbecoming to a lawyer. Certainly, posts like Fishkin’s promote more informed policy debates and more nuanced readings of charged political discourse.

Wednesday, July 18, 2012

Yo Mama part 2

I realized that my last post about ad hominem attacks had a “missing middle.” I just assumed (as Governor Perry also seems to have assumed) that everyone would understand that a certain phrase he’d employed in his Austin American Statesman editorial was intended to be insulting. But some insults are more subtle than others. If you call someone “a rascally knave,” it’s pretty obvious that you’re engaged in trash-talking. If you call someone “a law professor with ties to trial lawyers,” well, that’s a bit more subtle.
Or is it?
The tort-reform lobby has been so wildly successful at their language games that “greedy-trial-lawyer” has become a common compound noun. Even many trial lawyers, who’d spent their entire professional lives doing insurance defense trial work, got caught up in the game, bashing their own kind—with a special emphasis on those on the other side of the “v.” So, when the campaign against “greedy-trial-lawyers” culminated in 2003 with new laws curtailing lawyers’ ability to pursue personal injury claims that also led to putting many of the lawyers who had routinely defended those kinds of cases out of work. Too bad, so sad.
But really, this is nothing new. Since at least Shakespeare’s day, a person could count on lawyer-bashing as a way to score easy points.
You’ve heard the oft-quoted line: “The first thing we do, let’s kill all the lawyers.” You may not know that this line is shouted by “Dick the Butcher” in Henry VI, Part 2 to “Jack Cade,” the leader of a rag-tag populist uprising. Shakespeare probably knew the line would be good for a cheap laugh because he could count on his audience to empathize with the frustration that many feel regarding lawyers’ social clout. But it is clear from the context that Shakespeare himself did not think that lawyers should be the first before the firing squad. Nor did he seem to admire the likes of Dick the Butcher or Jack Cade. Quite the contrary. Those characters, with their comical lawyer-bashing, symbolize the highly uncivilized impulse to abolish the rule of law and bring on anarchy as a self-serving, short-term response to both real and perceived injustices. Cade says, “Is not this a lamentable thing, that of the skin of an innocent lamb should be made parchment? That parchment, being scribbled o’er, should undo a man?” This colorful, rhetorical question captures a rather scary disdain for literacy, written agreements, and the very concept that people should be bound by the contracts they sign. Nothing indicates that Shakespeare was of Jack Cade’s mindset. Sure, this infamous request that Cade begin his reign by killing all lawyers has been used to malign lawyers through the ages. But this fact is ironic. It is also somewhat understandable. In other words, Shakespeare packs a lot into that anti-lawyer exchange:  frightening, irrational rage (against lawyers and all that they stand for) and legitimate exasperation on the part of the powerless (with lawyers and all that they stand for).
The correspondence between the promises made by those who have so zealously pursued tort reform and the actual results of such reforms is still being investigated. Take a look at some more results compiled by Professors David A. Hyman of University of Illinois College of Law, Charles Silver of UT Law, Bernard S. Black of Northwestern University School of Law, the Kellogg School of Management, and the European Corporate Governance Institute, and Myungho Paik of Northwestern University School of Law: Their study suggests that Texas’s tort reform efforts relied in part on a sketchy premise about the status of physician supply before reforms were implemented and now evidence suggests that that supply has not measurably improved since—“whether one looks at all patient care physicians in Texas, at high-malpractice-risk specialties, or at rural physicians.” Ultimately, what makes science and the law so grand is that these areas of human endeavor require that falsifiable assertions be tested and demand hard data and other authoritative support before assertions are treated as facts.
At least on a gut level, the tort reform movement teaches that all lawyers should pledge to do their bit (1) not to engage in practices that give solace to the mindless lawyer-haters out there and (2) not to let people get away with denigrating a largely noble profession by recourse to overt name-calling and subtle insinuation.

Tuesday, July 17, 2012

Oh, yeah? Well, yo Mama--

He is deformed, crooked, old and sere,
Ill-faced, worse bodied, shapeless everywhere;
Vicious, ungentle, foolish, blunt, unkind;
Stigmatical in making, worse in mind.

The Comedy of Errors (4.2.22-5)

Ad hominem. The most titillating, but, nevertheless, lowest form of argumentation. It sounds more civilized when you give it a fancy Latin name. But when I was a kid, we just called it “Mama ranking.” Whatever you call it, the tactic involves attacking the messenger instead of the message—in a way guaranteed to push emotional buttons, thus causing the audience to see red and thus cease reasoning.

In Austin’s paper today, Governor Rick Perry resorted to this tactic in an editorial called “Tort reform has had just the impact we desired.” That impact involved essentially eliminating medical malpractice as a viable cause of action in Texas back in 2003. Perry’s editorial, published in 2012, is ostensibly a response to a recent empirical study showing that Texas-style tort reform has not, to date, produced cost savings to Medicare at least. But Perry’s response did not address the study in any cogent way—by, for instance, challenging the study’s presuppositions, questioning its controls or measurement errors, refuting any bases for its conclusions. Instead, Perry’s rebuttal relies on attacking the scholar reporting the results. That is, Perry hopes to convince folks to dismiss a serious bit of scholarship (should they ever hear of it) by tagging the scholar as “a University of Texas law professor with close ties to the trial lawyer lobby.”

Good lawyers know that the easiest way to annoy a court is to engage in this sort of ad hominem attack instead of addressing the substance of an adversary’s argument. In fact, few tactics more likely to raise the hackles of a principled trial judge. When courts are forced to witness lawyers sniping at one another, courts tend to experience it as a monumental waste of time. They want to know the facts and the law, presented from each party’s perspective, of course, but without inordinate spin.

But perhaps this, in a nutshell, is the fundamental difference between law and politics. With the latter, victories are often measured in the short term by benchmarks also associated with professional wrestling. But with the law, a win scored by hitting below the belt is likely pyrrhic—or at least less likely to withstand the test of (even a little) time. In any event, Shakespeare’s characters only resort to ad hominems for comic effect—or as a means to indicate their profound desperation. For instance, here is Kent—who knows that his man, King Lear, has made some monumentally stupid choices guaranteed to bring down the entire kingdom—unloading against a hapless messenger, calling him:

A knave; a rascal; an eater of broken meats; base, proud, shallow, beggarly, three-suited, hundred-pound, filthy, worsted-stocking knave; a lily-livered, action-taking knave, a whoreson, glass-gazing, super-serviceable finical rogue; one-trunk-inheriting slave; one that wouldst be a bawd, in way of good service, and art nothing but the composition of a knave, beggar, coward, pandar, and the son and heir of a mongrel bitch: one whom I will beat into clamorous whining, if thou deniest the least syllable of thy addition.

King Lear (2.2.14-24). Hmm. Shakespeare seems to suggest that nothing spells defeat like the retort “Well, your Mama is a mongrel bitch.”

Monday, July 16, 2012

To be or not to be on Facebook?

A few years ago now, one of my younger friends insisted that I risked being “totally irrelevant” because I was not on Facebook. Perceiving my techno-phobia, she decided as a, uhm, gift to take it upon herself to start an account for me and then sent me instructions about how to “just get it done.” I never quite got around to it. But before long, even without finalizing the set-up, I started receiving “friend requests” at the corresponding g-mail address. I thought it was really odd that most of these requests were coming, not from friends, but from people I had known in high school or even in junior high but had not seen or heard from since! And many of those folks hadn’t really been “friends” in the first place. This limited experience suggested to me that Facebook promised to be one enormous time suck, waiting to engulf the overloaded existence I was already struggling to handle effectively. Then I attended one of the scariest continuing legal ed sessions ever—all about how various social media, The Cloud, and smart phones were wrecking havoc on the justice system and on lawyers’ careers. I was duly horrified.

Now I have waited so long, the party seems to be migrating elsewhere. Or at least lawyers seem to think that tweeting and other phenomena are even more important to professional development than being on Facebook. Then again, what would I know about it? I am, after all, a person who decided to join the blogosphere only after it has become bloated to the point that “sphere” seems like a dainty euphemism for a more unseemly condition. And, in any event, this blawg of mine is devoted to proving the relevance of a guy who has been dead for nearly 400 years. . . .

The issue of whether lawyers should have a multi-faceted Internet presence—really, that ship has sailed. So the question is not “to be or not to be” on social media but how to manage the whole branding minefield. I recently noticed that UT Law’s Career Services Office has a web page with tips for law students (and lawyers) about handling the social networking balancing act. It’s worth eyeballing: After all, recruiters and employers can as easily “cyber stalk” potential hires as law students and young lawyers can do so with regard to potential employers.

And because the dangers are so palpable, deciding how to inhabit a wired world really is akin to Hamlet’s existential crisis. On one hand, you have the chance “to end the heartache and the thousands natural shocks that flesh is heir to” by opting out of the whole circus; but on the other hand, the unknown associated with “shuffling off this [wired] coil” may not be “a consummation devoutly to be wish’d.” Going off the grid is kind of like venturing into “the undiscovered country, from whose bourn no traveler returns.” And because embracing nothingness is a frightening concept, we are willing to “grunt and sweat under a weary life” of cyber marketing--bearing “those ills we have/Than fly to others that we know not of.”

Or wait—maybe it’s the fear of embracing the new technology that makes us settle for the old ways. Like the way lawyers refused to give up WordPerfect until some external forced put out the lights.

Either way, “conscience”—also known as “thinking”—does seem to make cowards (or copycats) of us all.

(Hamlet, III.1.56-90).

Saturday, July 14, 2012

Be Not Hoist With Your Own Petard

What a piece of work is a man!
William Shakespeare, Hamlet, Act II, scene 2, line 312

Back when I had occasion to teach Shakespeare to undergraduates instead of legal writing to law students, I proposed that all of Hamlet could be reduced to a single metaphor: to be “hoist with his own petard.” (III. 4.207) That metaphor is, perhaps, misunderstood as often as it is quoted. A “petard” is an explosive device. Those who speak French will recognize that the word shares Latin roots with “péter,” which, en français, refers to a more modest bodily explosion, i.e., breaking wind. Hamlet uses the metaphor of an engineer being blown up by his own bomb to describe what he hopes will happen to his two former school chums whom Hamlet’s murdering uncle, King Claudius, has enlisted to “marshal [Hamlet] to knavery”—i.e., steer him to an early grave. But Hamlet plans “to delve one yard below their mines” and thereby “blow them at the moon.” In other words, he is going to see that they are undone by their own scheme. This metaphor sums up the entire play because every major character and several minor ones end up dying as a result of their own efforts to lay a trap for someone else. For example, Hamlet gets a target painted on his back after he arranges to have some traveling players stage a production for the court that Hamlet calls “The Mousetrap,” designed to “catch the conscience of a king.” (II.2.617) And, sure enough, the scheme works! The play, which reenacts Claudius’s murder of Hamlet’s father, does startle the murderer into revealing his guilty conscience. But the scheme also alerts Claudius to the fact that Hamlet, Jr. is on to him. Therefore, King Claudius becomes hell-bent on disposing of young Hamlet, even if the kid is both his nephew and his new wife’s beloved son. After a few missteps, Claudius succeeds in orchestrating Hamlet’s demise. But those same efforts also bring about Claudius’s own death—along with the deaths of his collaborator, Laertes, and the seemingly innocent bystander, Queen Gertrude. Eventually, Hamlet, Claudius, Laertes, and Gertrude are all hoist with their own petard in one fell swoop. And that is just one example.

How does this theme apply to lawyers’ work?

Lawyers should be a bit wary about their own petards. For instance, what might seem like a really clever provision to stick in a contract may, in retrospect, become a landmine that blows up on those whom it was intended to protect. (I have seen it happen, though I am not naming names.) Of course, predicting when, where, and why business relationships will fall apart is extraordinarily difficult. And drafting hermetically sealed, self-contained contracts whose terms are obviously enforceable in all respects borders on impossible. Even when a legal document seems crystal clear to lay eyes (which is hard even to imagine), when people want out of a legally sanctioned relationship, they will squint and see some loophole in the document. And if the stakes associated with breaking up the relationship are high enough, people can always find a lawyer willing and able to marshal all manner of creative arguments as to why the contract is: indefinite; the product of mistake, fraudulent inducement, or duress; barred by laches, the statute of limitations, or estoppel; or downright  unconscionable. But instead of elaborate, clever constructions, as a rule, simple, transparent formulations are a safer bet. Less imprecision means less to fight about. To quote Hamlet’s mother, Queen Gertrude:  “More matter, with less art” (II.2.95) is the best goal. Otherwise, clever lawyers on the other side will find a way to see you hoist with your own petard.

Wednesday, July 11, 2012

"If Your Metaphor Stink, I Will Stop My Nose"

The name of this post comes from a very funny, fleeting scene in a not very funny play, All’s Well That Ends Well. That play is so notably not-very-funny that most scholars have now moved it out of the “Comedies” column into the “Problem Play” category, along with some of my favorite ditties like The Winter’s Tale and Measure for Measure. This post isn’t, however, about “problem plays.” It is about problematic metaphors.
Metaphors are one of the most effective devices we have for communicating a great deal of information efficiently. They “carry across” meaning such that an abstraction is rendered more concrete. The person receiving information conveyed by metaphor is able to “see” what you mean in a way that transcends the merely mechanical.  Word pictures also conjure up emotions. So metaphors connote distinctly positive or negative value judgments among the bundle of information they provide.
Some metaphors are so entrenched that we don’t even think of them as metaphors. For instance, when we say an argument “stinks” we are using one such entrenched metaphor. We do not literally mean that the argument smells bad. But because we all understand the concept of literal stinkiness we have no trouble understanding what a person means when they say someone’s analysis stinks metaphorically speaking—and we know that this is not a compliment.
Some metaphors force us to stop and think through the comparison that is being made because the metaphors are novel or involve multiple steps, as with analogies. The ability to appreciate the nuances of metaphor and analogy says a lot about a person’s analytical reasoning skills (which is why the SAT used to have those pesky sections devoted to Analogies). Making effective analogies is, therefore, an important skill for advocates, not just poets. Being able to expose how an opponent’s metaphor or analogy breaks down is very important, too. Analogical thinking is, quite simply, a core skill in the legal arena. Choosing metaphors that sound the right note (to use a metaphor) is something lawyers have to think about when writing briefs, advising clients, talking to juries.
The first bit of Shakespeare that my daughter memorized was Sonnet 18—which is all about metaphors and how they can come up short. Here is how it starts:
            Shall I compare thee to a summer’s day?
            Thou art more lovely and more temperate.

In trying to explain this sonnet to my daughter back when she was five, I had a problem. And my problem had to do with Texas. With this sonnet, Shakespeare is saying that a “summer’s day” is an inadequate metaphor for his Beloved because, as great as a summer’s day is, it just cannot compete with the youth’s all around fabulousness. (BTW: most everyone agrees now that this most popular of love poems was addressed to a young man, probably the mysterious “Mr. W.H.” to whom Shakespeare dedicated the sonnets.) In any event, the problem I had explaining this sonnet had to do with us living in Texas, not England. In Texas, “summer” is oppressively hot and humid; it is the time of year when flowers shrivel and when inviting someone to take an afternoon walk could be construed as a threat. For a Texas girl to comprehend Shakespeare’s “summer’s day” metaphor it had to be translated, placed in a specific cultural/geographical context. The bucolic summer to which Shakespeare was alluding is more like our October.
            Shall I compare thee to an October day?
            Thou art more lovely and more temperate.

Ah, now, that makes sense!
With this particular example, the problem with the metaphor cannot be blamed on the author. Shakespeare’s metaphor was not inept; it just got a little lost in translation. But many metaphors are problematic because the author/lawyer employing them has not thought them through carefully enough. Sometimes ill-conceived metaphors expose a fundamental weakness in an argument or trigger unintended associations that incline the audience to resist the outcome the metaphor-maker propounds. But the urge to use metaphors, to make analogical arguments is almost instinctual. And because they are vivid, they are disarming—even if they do not hold up under close scrutiny.
For instance, in part of his “Obamacare opinion” that is not part of the Court’s opinion, Chief Justice Roberts relies on an extended metaphor to explain his position that the “individual mandate” is not constitutional under the Commerce Clause.  More specifically, Roberts concludes that, in passing the mandate that all non-exempt individuals buy some basic health insurance or pay a penalty, Congress exceeded its authority “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const. art I, § 8. And he explains himself by comparing the problem of the health insurance market to the problem that “many Americans do not eat a balanced diet.” Roberts says that, just because both of these failures—to buy insurance and to eat a healthy diet—have real consequences on the “health care market” that does not mean that the Government can require you to do something just because the Government would like you to do it. According to Roberts, the Government’s position with regard to the insurance mandate is wrong because ordering people to buy health insurance or pay a fine is analogous to “address[ing] the diet problem by ordering everyone to buy vegetables.”
But I wonder: are those two things really analogous? How coherent is the metaphor? Aren’t there some noteworthy differences between insurance and broccoli? Insurance is a product that involves a hedge against future risks that only works as a matter of collective action; individual decisions to buy or not buy insurance affect the larger system in fundamental and immediate ways—such as in shaping how premiums are calculated. Vegetables are, by contrast, a rather different kind of product. I am not sure how even large numbers of people’s decisions not to buy vegetables is having a palpable, negative impact on the national food market such that every individual participating in that market feels some of those bad effects each time they eat. Besides, I know that I, a big broccoli fan, am paying less for my vegetables each month than I am for health insurance—and yet with the veggies, I get something I can consume as soon as I pay for it. Of course, if I buy more veggies than I get around to eating, they will soon perish in the fridge; whereas not using my insurance tends to be something that the purveyors of the product see as a good thing. My insurance will not rot if I fail to use it in time; but even if I do not use it much, when I do need it, I can still expect to pay a pretty penny because of all the other people out there not buying it and yet insisting on eating anyway and thus driving up the prices for all concerned. I don’t think it works quite that way with vegetables.
Then again, I could be wrong. Perhaps Roberts chose a terrific metaphor and the fault lies with me. “I just don’t get it,” as my daughter said when I first trotted out Sonnet 18. Let’s keep thinking about it. But you can be sure that, “if your metaphor stink, I will stop my nose; or against any man’s metaphor.” All’s Well That Ends Well, V.2.13.

Sunday, July 8, 2012

Quoth I

Boy, have I got a profound observation for you: Shakespeare gets quoted a lot. And quite often, the quoting is done without regard to the context from wence the quotation cometh. Great writers don’t make this mistake. When William Faulkner, for instance, named a novel “The Sound and the Fury” he knew quite well that the quote was from a specific speech in Macbeth that resonated beautifully with the theme of his novel about an aristocratic Southern family’s colossal decline largely attributable to the moral blight of slavery that had cast a pall over the family for several generations. If you think about that speech from Macbeth while reading Faulkner’s novel, the experience is enhanced by the resonance.

But like I said, Shakespeare gets quoted a lot without regard to context.  And, sadly, those who do so these days can generally count on their audience’s ignorance. So they don’t have to worry much about accidental incongruities.

Here’s a little example. Perhaps you’ve heard someone quote the following: “Forbear to judge, for we are sinners all.” This line is from Henry VI, Part 2—and is itself an allusion to a rather famous precept found in another revered text (see Matthew 7:1). But in Henry VI, the quote cannot really be interpreted as a spiritual directive. The line is spoken by the young King Henry just after the passing of Cardinal Beauford. The audience knows that the Cardinal is a rather despicable fellow. And we see him die after being “suddenly” taken with “a grievous sickness” that did not exactly bring out the best in him. It made “him gasp, and stare, and catch the air,/ Blaspheming God and cursing men on earth.” The King reacts to the Cardinal's ugly death throes by sweetly urging his companions to forego judging this guy who seemed rather unprepared to face his Maker. In context, Henry’s “forbear to judge” instruction has to be seen as ironic. For “feeble Henry” is the only person in the play totally clueless about the machinations and mayhem swirling all around him as members of two powerful clans vie for power at Henry’s expense. Henry is being crushed by all of the free-floating evil. If anyone should have been doing a little judging right about then, it was Henry.

So, by lifting Henry’s line out of the world of the play and using it, for instance, as a tag line for an inspiring sermon, a person can create some unintended comedy. Kind of like quoting Polonius’s little words of wisdom, which have become entrenched clichés, as if they are legit advice. Someone who knows Hamlet knows that Shakespeare was not offering advice about frugality when he has Polonius say “Neither a borrower nor a lender be.” Likewise, those five people who know Henry VI are going to smirk instead of reflect upon their spirituality when they hear someone quoting Henry’s line about “forbearing to judge.”

When quoting, lawyers need to be WAY more wary about misusing quotations than those who misappropriate little bits of Shakespeare. Yet lawyers aren’t always so wary. They find some really good language in some court’s opinion, then take that quote and stick it in a brief to support an argument. But later on, the judge and/or the judge’s law clerk goes and looks at that quote in its larger context. They see the quote—but also notice the bit that comes right afterwards where the Court says: “But we disagree with our sister court’s analysis. We, therefore, reject the holding that arose from the analysis described above.” 

Whoops. There is not much better fodder for a response or reply brief than catching a lawyer on the other side quoting a line from some case without regard to its context.

Legal quotations, like the best appropriations of Shakespeare, validate a position only if they resonate once fully contextualized.

Friday, July 6, 2012

A Promise of Calm Seas, Auspicious Gales

At the end of The Tempest, Prospero decides to abandon magic and return to civil society. He makes this decision only after using his occult skills to enact a kind of mock retributive justice. His vengeance entails conjuring up a violent storm that causes a shipwreck that brings his enemies to the very island where Prospero and daughter Miranda have been shipwrecked for a dozen years. Prospero’s revenge does not, however, involve any bloodshed. Nor does his revenge-procured-through-magic involve the naïve belief that all of the bad guys (including his own rotten brother) will be magically reformed in the process. Prospero’s revenge is theatrical and ritualistic; he puts the wrong-doers through various psychological torments, exposes their relative failings, proves that they are vulnerable such that he could take an eye for an eye, and then he pardons them. In using his “most potent art” in this way, he does change some minds—but mostly he solidifies a future for his daughter and his own ability to return from exile. Not a bad outcome. Since undoing the past is not exactly an option, at least this compromise is one he can live with. Arguably, such a compromise, not “pure” vengeance, is what permits him to resume living.

A person could read The Tempest as a dynamic example of how a person learns to pardon, which is essentially an act of grace that is both irrational and highly reasonable. (Think about it while singing something rousing from Les Miz.) Neither I nor The Tempest suggests that societies shouldn’t do their bit to try to reduce crime—part of which means crafting punishments that might act as deterrents. But The Tempest seems to acknowledge an important role for pardons—especially because pardons are perhaps the best means whereby the victims are able to overcome the feelings of rage and grief that, however justified, can keep them imprisoned in the crime’s aftermath. Maybe this is why The Tempest ends with Prospero directly addressing the audience as follows:

As you from crimes would pardon’d be,
Let your indulgence set me free

On one hand, Prospero is just asking the audience to applaud, thereby breaking the play’s “spell.” On the other hand, he relies on a metaphor that presumes an understanding that pardons, not retribution, are what free both perpetrators and victims from the legacy of crimes.

Wednesday, July 4, 2012

Little But Fierce

And though she be but little, she is fierce.
(Helena describing her friend Hermia in A Midsummer Night’s Dream, III.2.325)

I had a farewell lunch with a very endearing former student who has just launched an exciting career as a legal journalist. She may or may not be reading this post. She told me that she subscribes but “just kind of skims” because she’s “just not that into Shakespeare” and, besides, I tend to go on. I have already admitted that these two characteristics—the obsession with Shakespeare and the inclination to be, shall we say, a tad didactic—just might mean that this blawg is not likely to go viral any time soon. At least it will never have the mass appeal of the “super cats” on YouTube that my husband felt compelled to send me the other day. I am resigned to this fact. But in honor of my student and the recent discovery regarding the Higgs boson, I have decided to dedicate July to the diminutive. In other words, this shall be a month of short posts.

Besides, today is July 4th, a decidedly American holiday about which Shakespeare had nothing to say as the Jamestown colony was not even founded until 1607, just a few years before Shakespeare “shuffled off this mortal coil.” (Hamlet, III.1.66). And if Americans are universally recognized for anything it is their short attention spans.

So here is a little Shakespearean aphorism lawyers should appreciate:

            Let me have no lying; it becomes none but tradesmen.
The Winter’s Tale (IV.3.747)

Monday, July 2, 2012

Such a Cliché

Take each man’s censure, but reserve thy judgment.
Hamlet, I.3.73

The other day, the exciting fact of this blawg came up in my class. One student reacted to the news by commenting that “a lot of people don’t know how many clichés come from Shakespeare.” We then briefly discussed an interesting phenomenon: how many of Shakespeare’s once-novel poetic tropes—like Juliet’s observation that “a rose by any other name would smell as sweet”—are now considered clichés because they are so entrenched in English discourse. That is the truly sad paradox of a cliché. Most expressions deemed clichés came into this world as inventive, metaphoric formulations. Indeed, these expressions were so vivid, so fresh that EVERYONE wanted to use them to capture something vital. Then, because EVERYONE wanted to use them, the expressions soon lost their sheen. They turned trite and shabby. They became linguistic pariah, indicating a failure to “think outside the box” to, uh, borrow a particularly annoying, once oh-so-clever phrase.  

Any decent style manual offering writing advice warns against using clichés. Perhaps, then, it will surprise you to know that a lawyer once told me that the only literary turns of phrase that belong in legal writing are clichés. In his view, clichés operate as effective shorthand. And since legal briefs are not supposed to be literary works, what matters is getting a point across as efficiently as possible. Therefore, in this lawyer’s view, incorporating clichés into legal writing can be a good idea because the reader will “get them.” If you tell a judge in the context of a discovery dispute that “what is good for the goose should also be good for the gander” or urge the judge “not to split the baby” when deciding whether a set of claims should go to the jury, the judge may not be impressed with your originality, but the judge will understand what you want the judge to do. Even more, the judge will see your dispute as a morality play where one result, and only one, will further the interests of justice.

Where do I stand on clichés?

I split that poor baby!

On one hand, the pragmatic advice described above initially made me wince. But the more I thought about it, the point seemed legit. And I’ll even admit to having embraced that advice on occasion—intentionally employing a cliché to try to cut to the chase. On the other hand, clichés should never be a default option—especially if you are trying to get a reader to see something in a fresh light. Nothing makes me cringe more than reading an argument stating in conclusory fashion that “x” is “a slippery slope.” That expression seems like nothing more than a lazy scare tactic, like threatening a kid with the boogie man or lost dessert privileges. In other words, whether a cliché is worth using depends on context, intent, execution.

Even Shakespeare employed expressions that already were (or at least felt like) clichés before he got his hands on them. But he did so for strategic purposes. That is, I would never accuse my man Will of “settling” for a cliché because he couldn’t think of a better way to say something. I can, however, think of instances where he used clichés artfully to convey something about character.

I offer the famous blowhard, Polonius, in Hamlet as an example. Polonius is a member of the Danish court. He hangs out a lot with the King and Queen, forever offering his opinions; and he has two grown kids, Laertes and Ophelia, whom he also likes to advise. In the first Act, we meet Polonius’s son, Laertes, as he is trying to get out of town. Laertes had returned to Denmark to pay his respects to the new (and newly married) King (Hamlet’s uncle, now married to Hamlet’s mother). But Laertes is in a big hurry to get back to Paris. Just before Laertes is able to duck out the door, Polonius corners him to offer up a “few precepts.” Polonius then blathers on for over 20 lines, barraging Laertes with advice about being “familiar, but by no means vulgar” and “neither a borrower nor a lender.” Each precept is rather reasonable if considered independently. But the net result of the litany suggests that Polonius is a tedious, intermeddling old man such that we have no trouble understanding why his son is eager to get the hell out of Dodge. In short, Shakespeare tells us a great deal about Polonius—his pomposity, his cluelessness, his well-meaning, if misguided, intentions—by using clichés.

So, as with many things in the legal context, I am left concluding that the real danger is in hasty, overbroad generalizations. Even when it comes to something as maligned as clichés, “it must follow, as the night the day,” that the best bet is proceeding with caution.