Saturday, September 29, 2012

What a Piece of Work

What a piece of work is a man, . . . .
Man delights me not—nor women neither, though by
your smiling you seem to say so.

Hamlet, II.2.303+

Of all of his creations, Hamlet is Shakespeare’s most likely poster child for SNOOTiness. See previous post: “Of Solecisims and SNOOTs.” For one thing, Hamlet is decidedly attuned to language and its nuances. And putting aside that his circumstances suggest ample grounds for legitimate rage, the guy is rather persnickety about messes. (“O, that this too too sullied[1] flesh would melt,/ Thaw, and resolve itself into a dew!”). In particular, his mother’s messy sexuality really seems to unhinge him. He chides her, for example, in rather graphic terms for her decision: “to live/ In the rank sweat of an enseamed bed,/ Stew'd in corruption, honeying and making love/ Over the nasty sty,--” Indeed, he has such a hard time controlling the urge to correct and control that he even feels compelled to give snide advice to a band of traveling players about what he claims “offends [him] to [his] very soul;” and he gives this advice before he has even seen them rehearse:
Speak the speech, I pray you, as I pronounced it to
you, trippingly on the tongue: but if you mouth it,
as many of your players do, I had as lief the
town-crier spoke my lines. Nor do not saw the air
too much with your hand, thus, but use all gently;
for in the very torrent, tempest, and, as I may say,
the whirlwind of passion, you must acquire and beget
a temperance that may give it smoothness.

You could argue that Hamlet’s SNOOTiness eventually costs him his life; he cannot stand it that the world—and particularly human beings—are profoundly flawed. And the way he commits to “fix” everything guarantees his own destruction.
Most lawyers cannot afford to be unmitigated SNOOTs—even though I suspect that many SNOOTs go to law school. I’ll pursue these two propositions independently.
First, most lawyers are not SNOOTs because (a) not all people who become lawyers are hardwired to be SNOOTs; and (b) most lawyers cannot afford to be SNOOTs, even if nature inclines them to be so.
As David Foster Wallace and Bryan Garner suggest, SNOOTiness seems to have a genetic component. You have to have an overactive left hemisphere. Then, that genetic proclivity has to be nurtured through a disciplined, yet obsessive, commitment to both language and rules. Most people expect lawyers to be sticklers about both language and rules; at the same time, most people (including the kind known as “corporations”) generally do not want to pay for the time it takes to generate work product that will be entirely satisfactory to a true SNOOT. Likewise, most clients, not being SNOOTS themselves, do not feel comfortable sharing important confidences with true SNOOTs. These clients might express exasperation about typos in deal documents or briefs for which they have paid good money; and such exasperation is warranted. But being perfectly SNOOTy is not exactly the trait associated with most first-rate rainmakers. Rainmakers usually have other important assets—including charisma, empathy, the judgment to know when to withhold judgment.
Bryan Garner, as Wallace notes, is a lawyer. He went to law school and did exceedingly well. He got a law job upon graduation. But perhaps he only practiced law for about five minutes because he was not inclined to curb his SNOOTiness. And perhaps his firm did not fully appreciate the hours he devoted to drafting a fantastic modern usage manual instead of pursuing billable work. In any event, he would not likely argue with the suggestion that he was, by temperament, better suited for academia than for the private sector.
Of course Garner got the last laugh in that he has been able to parlay his academic propensities and pronounced SNOOTiness into a lucrative consulting practice on top of producing stunningly successful books about usage and writing. My point is, though, that actual law practice does not privilege the true SNOOT—Garner’s sui generis career notwithstanding.
The second proposition is that, although most practicing lawyers cannot be pure SNOOTs, many SNOOTS go to law school and thrive there. Why? Because law school is a really good fit for people who care about or are terribly insecure about words, rules, power, and propriety. Most law schools reward these values. Students who possess some compendium of these values are the ones who get on law review. They are the ones who become intimately acquainted with The Bluebook: A Uniform System of Citation. They are the ones willing to clock untold hours checking and correcting their own and others’ factual and grammatical messes.
Of course, not every law student who serves on law review or other academic law journals loves that kind of work. I actually suspect that most do not. Yet these folks commit to this work because they recognize that this display of masochism makes them more attractive to private employers who pay really well. And for most, the hope of gainful employment was the main impetus for going to law school in the first place.
The fact that so many non-SNOOTs in law school are willing to devote untold hours to pure SNOOT labor proves that SNOOTs are the ones who call the shots. Law-school culture privileges SNOOTiness even though SNOOTiness is, to some extent, incompatible with actual law practice because law school is populated by law professors, most of whom, like Garner, only practiced law for about five minutes.
Is that a bad thing—that elite law schools and law practice privilege different, even occasionally incompatible values?
Not necessarily. Although a debate on that subject is currently being waged. See, e.g., Brian Tamanaha’s Failing Law Schools.
I merely suggest here that, while lawyers can learn a great deal from SNOOTs, the realities of law practice are not conducive to pure SNOOTiness. SNOOTs who train their eye on lawyers’ use of language will, of course, find many “[e]xamples gross as earth [to] exhort.” But being a true SNOOT while practicing lawyer is a formula “[w]hich might deprive your sovereignty of reason/And draw you into madness[.]” (I.4.73-74).

[1] In some versions, editors chose “solid” instead of “sullied.” But because the latter fits better with Hamlet’s larger obsession with all things flawed, I prefer “sullied,” as do the editors of The Riverside Shakespeare.

Wednesday, September 26, 2012

Of Solecisms and SNOOTs

Solecisms and SNOOTs
They have been at a great feast of languages, and stol’n the scraps

O, they have liv’d long on the alms-basket of words.

Love's Labor's Lost (v.1.38-39)

It is so interesting how a person such as myself, who lives partially in another century, learns of things.
This week I was teaching a class for which the students and I read transcripts of interviews conducted in 2006-2007 with eight of the nine Justices then sitting on the Supreme Court of the United States. These interviews were conducted by legal writing and usage guru, Bryan Garner. One thing that struck me upon re-reading these interviews is how spoiled these folks are. Most of the legal writing that their job requires they read represents the pinnacle of the genre; briefs at that level—at least merits briefs submitted after the SCOTUS has decided to grant a writ of certiorari, aka picked a winning lottery ticket—tend to be clear, thorough, carefully organized, thematic, and meticulously scrubbed of style and grammar errors. And since the SCOTUS has granted cert, odds are also high that the issues involved are compelling and have obvious ramifications for society writ large. I fear that most of the legal writing I read cannot be similarly characterized. Even those trial court briefs and research memos that are well crafted, and these are hardly in the majority, often involve fights over, or analyses of, issues that would strike most of the world as painfully pedantic.
When the Justices were asked in these interviews to provide writing advice, some of them focused on matters that reveal just how rarified their circumstances are. For instance, in his interview, Justice Scalia devoted considerable time to inventorying particular words or phrases that drive him crazy. Some of the constructions that irk him are errors or, as he puts it, indications of “illiteracy,” like missing apostrophes. Some that give him heartburn, however, mystify me. For instance, “nexus.” Apparently, he hates the word “nexus” and sees it as a “pretentious” effort to suggest something “scientific” when the word “connection” would do nicely, thank you very much. I happen to like the word “nexus” myself—although I recognize that I, like Scalia, like all kinds of words that are not exactly common currency. Therefore, my liking a particular word does not necessarily make it a good choice to employ in legal writing. But I do not see “nexus” as one of those SNOOT sesquipedalian words that, like “sesquipedalian” itself, exposes you as a pompous ass if you drop it into a brief or casual conversation for no good reason. “Nexus” is not exactly inaccessible. Also, it has a nice, clipped sound to it—zippier than the plodding and decidedly generic and occasionally too New-Agey “connection.”
More understandable than Justice Scalia’s dislike of “nexus” was Justice Kennedy’s irritation with what he describes as “trendy” formulations. I understood him to be referring to neologisms or phrases that become hot in academic or business circles and thus get bandied about so much they can end up being a substitute for real communication. Kennedy uses the word “incentivize” as an example. I think of phrases such as “deals with problematic issues” or “requires thinking outside of the box.”
Only people who spend most of their time wading through the best legal writing that the profession has to offer, though, could think that the biggest problem with lawyers’ writing is their reliance on words like “nexus” and saying “cite to” instead of “cite.”
Now to loop back to my initial observation—about the uncanny accidents that can lead a person to surprising epiphanies.
I was not familiar with the term “SNOOT” before seeing Scalia use it in his Garner interview. Perhaps the term itself is a kind of litmus test; and perhaps Scalia, while talking to a fellow SNOOT like Garner, knew and liked it that only other true SNOOTs could appreciate his allusion.
Although the allusion was lost on me, one of my super-bright and remarkably non-snooty students clued me in later. “SNOOT” is an acronym proffered by the late David Foster Wallace in a stunning[1] essay Harper’s published in 2001: “Democracy, English, and the Wars over Usage.” The essay had escaped my attention until said student, who was probably a pre-teen when it was published, sent it to me the other day. Interestingly, the essay purports to review Bryan Garner’s A Dictionary of Modern American Usage. (See all these connections?? Could there be a secret SNOOT cabal???) But Wallace’s essay is so much more than a mere review. The essay is really about the profound tension between two core components of American culture: traditionalism and egalitarianism. The SNOOTs, as you can imagine, are largely traditionalists. At least when it comes to language, they deplore any and all solecisms (i.e., grammatical improprieties) and see themselves holding the line with their erudite vocabulary against the marauding ignoramuses blithely destabilizing English at every turn. Wallace admits to being a SNOOT, even though he’d decided to forego the bowtie generally worn by members of the club. He also explains that, in his family, SNOOT stood for either “Sprachgefühl Necessitates Our Ongoing Tendance” or “Syntax Nudniks of Our Time”—depending on whether you were a SNOOT or not. 
Reading this essay really got me thinking. The content, as well as (1) Wallace’s subsequent suicide after losing his long-standing battle against depression and (2) the title of his 1996 magnum opus, Infinite Jest, being an allusion to a line from Hamlet, led me to speculate about the nexus among lawyers, SNOOTs, and Shakespeare. Working through all the associations and hypotheses now exploding in my head will take some time, however. Therefore, I intend to devote a while to exploring this terrain. Meanwhile, I offer these tentative reflections:
  • Most lawyers are not SNOOTs, but many SNOOTs go to law school.
  • The same tension between SNOOT and anti-SNOOT values that Wallace describes among lexicographers is now coming to a head in the legal academy.
  • Although I am not a SNOOT, I suffer from manifest SNOOT-envy.
  • Shakespeare was not a SNOOT, but hardly romanticized illiteracy.
To be continued . . . . (Only a SNOOT would know if putting a space before starting that ellipses is correct.)

[1] I say “stunning” because of the amalgam of erudition, high and low wit, confession, and energy apparent in this essay about an exceedingly complex and “SNOOTy” topic. Besides, since Wallace was rather fond of the phenomenon, I felt a footnote in a blog post was an apt tribute.

Sunday, September 23, 2012

Translation Is Possible

In my last post, I owned up to something: that Shakespeare is difficult and even unpleasant for many because his work requires translation to be accessible. Interestingly, Shakespeare liked the word “translated.” But in his vernacular the word meant “transformed.” For instance, in A Midsummer Night’s Dream, an impish fairy encounters a pompous amateur actor, “Bottom the Weaver,” rehearsing a play in the woods. The fairy (Puck) amuses himself by casting a little spell on the unsuspecting Bottom, leaving him with the head of a donkey. When his comrades next see him, they scream: “Bottom, thou art translated!” Which sort of proves my point about how much fo Shakespeare needs to and should be translated in the modern, linguistic sense.

I recently wrote an essay suggesting that seeing legal writing as a second language is a productive methodology. The idea is that approaching legal writing as an act of translation can breed habits that improve the odds of communicating effectively. Maybe someone will publish the essay. Or maybe not.  In any event, I learned several things in the drafting process. Most of the interesting things I learned were from international law students. More specifically, I interviewed law students for whom English is not their native language to test my hypothesis and ended up with an even more nuanced perspective.

Generally, I think writers of any stripe can improve by noting how other languages are different from, and yet similar to, their native tongue and thus appreciate how translation is challenging yet possible. For example, while talking with some former students the other day, I learned that the Chinese have an expression that describes the same phenomenon that English speakers mean when they say: “We’ll play good cop, bad cop.” In China, they say something like: “We’ll be the red face and the white face.” But because translation is hard, one cannot assume that, just because you know what the words mean, you thoroughly “get” the parallel. I bet that non-Chinese Americans would tend to assume that the red face = the bad cop and the white face = the good cop. And that would be wrong. This is because these two colors have different connotations in the two cultures. In the West, red is principally the color of passion, violence, hatred—hot emotions—whereas white is the color of purity and tranquility. By contrast, in the East, red is the color of health, fertility, celebration, while white is associated with death and evil spirits. Indeed, I learned a long time ago from some Vietnamese students that the idea of a bride wearing a white dress was really freaky to them; by contrast, Westerners would see a bride in red as a tad ironic. See The Police’s “Roxanne.” (“You don’t have to put on the red dress.”)

In sum, translation is possible. Yet it requires more than accounting for differences in words, grammatical structures, and idioms. Similarly, Shakespeare can be made more accessible, but not by simply setting the play in a modern context while having the actors speak the text exactly as written. Likewise, translating the law into accessible prose is possible, but not something that just “comes naturally” to anyone. Good legal writing requires careful, cautious bridge-building based on understanding that the person with whom you want to communicate does not speak the same language that you utilize inside your own head.

Saturday, September 22, 2012

Translation, Please

Someone I, uh, know rather well posted a comment on my Merchant of Venice post. The comment is essentially a re-post from another blog about the same play. In that post, that other blogger expresses appropriate indignation about the character Shylock and the legacy of anti-Semitism associated with him. The blogger also, however, goes on to dismiss all of Shakespeare as essentially unintelligible drivel. This I cannot condone! Reading Shakespeare poses difficulties for many. I get that. Indeed, I have previously written about that issue.

In that previous post, I tried to make the case that wrestling with the difficulty is worth it. What I did not do was specifically identify what makes reading Shakespeare so difficult. Here are some thoughts:

We have a basic translation problem. Many of the words that Shakespeare used have evolved; so they no longer mean what they once did. For Shakespeare, “artificial” meant “skillful” and “competitor” meant “partner”—to name just a couple that hinder communication.

Many of Shakespeare’s sophisticated tropes, analogies, puns, and verbal pyrotechnics are just too much to unpack in one sitting. Consider this little exchange between Hamlet and his former school chums, Rosencrantz and Guildenstern. The exchange takes place right after Hamlet has killed and then stashed the body of the king’s counselor whom Hamlet caught hiding behind a curtain in his Mama’s bedroom:

What have you done, my lord, with the dead body?

Compounded it with dust, whereto 'tis kin.

Tell us where 'tis, that we may take it thence
And bear it to the chapel.

Do not believe it.

Believe what?

That I can keep your counsel and not mine own.
Besides, to be demanded of a sponge! what
replication should be made by the son of a king?

Take you me for a sponge, my lord?

Ay, sir, that soaks up the king's countenance, his
rewards, his authorities. But such officers do the
king best service in the end: he keeps them, like
an ape, in the corner of his jaw; first mouthed, to
be last swallowed: when he needs what you have
gleaned, it is but squeezing you, and, sponge, you
shall be dry again.

I understand you not, my lord.

I am glad of it: a knavish speech sleeps in a
foolish ear.

These guys, Hamlet’s peers, can hardly keep up with him. So, understandably, modern audiences/readers can easily miss the point at the apex of this exchange when Hamlet says “Do not believe it--That I can keep your counsel and not mine own./ Besides, to be demanded of a sponge! What replication should be made by the son of a king?” What Hamlet means is that they shouldn’t expect him to keep their dirty secrets and yet divulge his own. He is alluding to his old pals being secretly in cahoots with his step-father, the new king. Then he compares these former pals to a sponge in a witty extended metaphor, which they do not understand either. Nor will modern readers understand most of Hamlet’s lacerating witticisms if they don’t slow down and think through the word pictures he creates. Yet who has time to do that in the middle of watching a play?

Shakespeare’s plays were composed to suit a different culture’s tastes. For instance, the plays are a tad long by our standards. Performing all of Hamlet would probably take 5 hours, which Elizabethans saw as getting their money’s worth. Also, the plays are replete with allusions to historical, literary, and folk tales—references that are no longer a part of modern audiences’ communal vocabulary. Unlike a contemporary audience, an Elizabethan crowd could be counted on to know a fair amount about court intrigue so as to see vital parallels between what was going on in the fictional Danish court with what went on in London—without the benefit of a “playwright’s note.”

ALL RIGHT ALREADY! I CONCEDE ALL THIS! But just because translation is hard, that doesn’t mean we should give up on the possibility of communicating across cultures, right? Or across eras? Or across the dinner table?

I certainly hope not. More on this subject to come.

Tuesday, September 18, 2012

Such Fire

Jeffrey Toobin—lawyer, best-selling author, staff writer for The New Yorker—is releasing a new book today, The Oath: The Obama White House and the Supreme Court. The buzz on the book is that it provides the inside scoop as to how and why Chief Justice Roberts switched his vote regarding the constitutionality of the Patient Protection and Affordable Care Act (aka Obamacare), thereby saving the Act and, perhaps, both the Obama presidency and the High Court’s reputation in the process. The latter two intertwined possibilities are ironic, considering the strained and even “confrontational” relationship between the Court and the White House that Toobin describes. In this book, Toobin purports to expose Roberts as the radical and Obama as the conservative in terms of core legal principles, such as commitment to stare decisis; additionally, Toobin seeks to show how the ideological war suggested by the tense relationship between Roberts and Obama came to a head in the SCOTUS’s 2011-12 term, which was chock full of cases involving politically charged issues.  
What I find quite irritating about this book is that Toobin was able to draft it so quickly—seemingly in the time it takes me to prepare the week’s grocery list. Whether one agrees with Toobin’s thesis or not, you have to be impressed by his productivity. In this, he shares something with my hero Willie Shakespeare.
Shakespeare’s productivity was remarkable. Even if you just consider the sonnets, his prodigious output is breathtaking. Shakespeare wrote at least 154 (that’s just counting the ones that ended up published). These beautifully crafted, complex love poems all adhere to a strict form:
·         14 lines of iambic pentameter (5 “feet” each made of a short-long syllabic stress pattern);

·         3 quatrains each with an “a-b-a-b” rhyme scheme; and

·         a final rhyming couplet.
Many writers would have been happy to crank out just one sonnet that rises to the level, say, of Sonnet 73, which captures the agony of falling in love with someone much younger, whose youthful verve quickens the pulse even as it reminds the person of a certain age just how ephemeral life is:
That time of year thou mayst in me behold
When yellow leaves, or none, or few, do hang
Upon those boughs which shake against the cold,
Bare ruin'd choirs, where late the sweet birds sang.
In me thou seest the twilight of such day
As after sunset fadeth in the west,
Which by and by black night doth take away,
Death's second self, that seals up all in rest.
In me thou see'st the glowing of such fire
That on the ashes of his youth doth lie,
As the death-bed whereon it must expire
Consumed with that which it was nourish'd by.
This thou perceivest, which makes thy love more strong,
To love that well which thou must leave ere long.

Most lawyers spend much of each day pounding out verbiage. The good ones recognize how much time it takes to draft something worthy of public consumption—even if the “public” consists of a single judge and a few law clerks. Those who can write effectively and quickly about challenging topics like Supreme Court Commerce Clause jurisprudence, doomed love, or mortality deserve our awe. Obviously, such people are highly evolved when it comes to time management. Perhaps, for instance, they just sit down at the keyboard and focus on the task at hand instead of reading tips on reducing procrastination, as I did in the middle of writing this post.

Sunday, September 16, 2012

“Sufferance is the badge of all our tribe”

Erev Rosh Hashanah. A fitting time to ponder one of my least favorite plays: The Merchant of Venice. As a long-standing Jewish sympathizer, I find it difficult to feel enthusiastic about that one—even though it abounds with rich poetry and treats the rule of law as worthy fodder for drama. Sure, Portia’s speech about the quality of mercy is lovely. (“The quality of mercy is not strain’d./ It droppeth as the gentle rain from heaven/ Upon the place beneath. . . .) In a vacuum, I am perfectly happy to hear people recite that speech, including my own precious daughter (who is learning it now). The trouble is the context.
Portia’s famous “mercy” speech is the closing argument in a courtroom scene. In that scene, she is passing herself off as both a man and a lawyer. Her client is a young Venetian merchant, Antonio, who gambled his future by placing a big commercial bet that his ships would come in in time, in the process borrowing a big sum from a man he openly despised. The bet came up short. He breached his agreement to pay back the loan as promised. At trial, no doubt exists about his liability. Moreover, the plain language of the contract is explicit: in the event of a breach, Antonio was obligated to forfeit a pound of his own flesh. Taken literally, that form of liquidated damages would mean the death of him. He goes to trial to try to get out of the bargain he’d made, fair and square. His defense hinges entirely on inciting prejudice against his partner in the contract.
The person with whom Antonio entered into this contract—the person whom Antonio promised to pay back by a certain date with interest or else submit that pound of flesh—is “Shylock the Jew.” Shylock, of course, does not have much need for Antonio’s flesh. But he felt such a bargain was worth forging because of the lifetime of taunts, insults, discriminatory practices, and ghettoized existence he’d endured in Venice, thanks to the likes of Antonio. This is why, when Shylock is asked what he could possibly hope to gain from acquiring that “pound of flesh,” he says “if it will feed nothing else,/it will feed my revenge.” (III.1.53-54).
Indeed, Shylock justifies the stakes involved in his bet with Antonio in an exceedingly moving and disturbing speech demonstrating the collateral consequences of racism:
. . . . I am a Jew. Hath
not a Jew eyes? hath not a Jew hands, organs,
dimensions, senses, affections, passions? fed with
the same food, hurt with the same weapons, subject
to the same diseases, healed by the same means,
warmed and cooled by the same winter and summer, as
a Christian is? If you prick us, do we not bleed?
if you tickle us, do we not laugh? if you poison
us, do we not die? and if you wrong us, shall we not

Even if we can defend Shakespeare by arguing that at least he gave Shylock this moving speech before making a public mockery of his pain in the courtroom scene, it is virtually impossible to suggest that the playwright intended Shylock to be more than the butt of the young Christians’ joke in the end. The audience is entreated to laugh upon learning that Shylock’s own daughter has stolen his life savings, forsaken him, and eloped with a Christian boy; the secondhand reenactment of his pain is treated as riotous comedy:
I never heard a passion so confused,
So strange, outrageous, and so variable,
As the dog Jew did utter in the streets:
‘My daughter! O my ducats! O my daughter!
Fled with a Christian! O my Christian ducats!
Justice! the law! my ducats, and my daughter!’
The young Christian hipsters get the better of him at trial and beyond; he is forced to convert and is then left alone in misery while the happy couples’ wildest dreams come true.
So I don’t like this play. Nor do I like the idea that it depicts the law as a malleable instrument fairly exploited by the young, beautiful, and powerful against outcasts made prematurely old and gnarled by the heartless vitriol of the disdainful majority.
But it seems the Jews do get the best of Portia and her Venetian cohorts in the long run. The chosen people have the last laugh—or, really, the next laugh—by stubbornly insisting on making the rest of the world laugh with them, often by turning the ugliest tribalism on its head. See, e.g., my husband’s favorite blog:

Friday, September 14, 2012


The title of this post is the last line of the truly pathetic epitaph on Shakespeare’s tombstone. That bit of doggerel alone was sufficient to make other great writers like Twain and Freud skeptical about the claim that William Shakespeare of Stratford was really responsible for the literary canon attributed to him.
I heard a rather bizarre bit of news yesterday about bones. The news is a reminder that “history” is a difficult construct—both malleable and recalcitrant: “Archaeologists searching for the grave of King Richard III say they have found bones that are consistent with the 15th century monarch's physical abnormality and of a man who died in battle.” See the full story here:
The reason folks have been devoting energy to this seemingly odd quest for some very old bones has to do with competing views regarding the historical Richard who is the eponymous anti-hero in Shakespeare’s famous “history” play. For most, Richard epitomizes pure, Machiavellian evil: the man willing to do anything to obtain power, like murder the numerous relatives, including two young nephews, who stood between him and the throne. To the extent that people know anything about Richard, I suspect most “know” what they know thanks to Shakespeare—even if they have never seen or read the play.
But for centuries—and more aggressively in the past sixty years or so—some have argued that Shakespeare just made up most of the ugly tale as a means to suck up to the Tudors. By Shakespeare’s day, the Tudors were well ensconced as England’s monarchs, yet, as Shakespeare well knew: “uneasy [always] lies the head that wears the crown.” (Henry IV, Part 2, III.1).
As far as I know, the first literary effort to take on Shakespeare’s version of history did not appear until 1951. The Daughter of Time, by Josephine Tey, is a really fun bit of pulp fiction—a detective story about a contemporary British detective entertaining himself during a convalescence by plodding through the “evidence” of Richard’s malfeasance; he ultimately concludes that the whole thing was a massive defamation. Perhaps Tey’s literary efforts inspired the resurrection, a few years later, of the “Richard III Society,” which, according to that organization’s website, is fueled by “the belief that the truth is more powerful than lies - a faith that even after all these centuries the truth is important. It is proof of our sense of civilised values that something as esoteric and as fragile as reputation is worth campaigning for.”
It is truly scary how easy it is to make up facts. Scarier still is how easily the truth can get lost beneath layers of debris, perhaps forever. By contrast, it is encouraging how people nonetheless believe that “the truth will out,” that lies can be overcome by education, that the best response to false, deceptive, manipulative speech is yet more speech. But complexities abound—such as the undeniable facts that some always have the ability to build bigger megaphones and that uncracking eggs of calumny thrown into the public square is a virtual impossibility. Yet I will continue to hope that, even if Shakespeare propagated falsehoods about the historical Richard, Shakespeare was right to suggest that his Richard’s worldview is not one likely to sustain a person for the long haul. Like a Nietzschean ubermensch, Shakespeare’s Richard says: “Conscience is but a word that cowards use,/ Devis’d at first to keep the strong in awe.” (V.3.309-10). That Richard ends up, however, alone, haunted by ghosts, and crushed by forces bigger than his own selfish ambitions. See previous post “What Would William Do?” Then again, wouldn’t it be a supreme irony if DNA evidence ultimately demonstrates that the man who wrote a rousing morality tale about the triumph of good over evil did so in a “history” play that was a calculated fiction?

Tuesday, September 11, 2012

Like Clinton Not Cymbeline

 Publish we this peace/ To all our subjects.
Cymbeline, V.v

Last week, former President Bill Clinton gave what was widely lauded as a bang-up speech. Regardless of one’s political inclinations, lawyers should have been delighted about the encomium that speech inspired. The speech was not simply long and substantive. It was Bubba-quality funny. Yet its most salient characteristic was the seemingly effortless way Bill rendered really hard stuff accessible. Lawyers have to appreciate just how hard that is to do—distinguishing, for instance, multi-billion-dollar savings to Medicare outlays from multi-billion-dollar cuts to Medicare benefits and explaining how it is intellectually dishonest to pretend that those things are one and the same.

This is the challenge that lawyers of all stripes encounter every day: making complex substance user-friendly. Indeed, a lawyer and blawgger whom I admire, Barry Barnett, has said that one reason why he blogs is to show an ability to make really hard stuff intelligible. Mr. BBar does this because he knows this is what lawyers are called on to do; therefore, proving he has this skill tells you something about his abilities as a lawyer. Barry’s blawg, like Clinton’s 2012 convention speech, should inspire lawyers to pursue better ways to talk to clients, courts, colleagues, adversaries, and family members about mind-numbingly complex stuff.

By contrast, lawyers looking for ways to communicate more effectively should study Shakespeare’s Cymbeline for tips about precisely what not to do.

Cymbeline is truly interesting, although I would never want to have to sit through a production. It is classified as a “problem play.” And not just because it is an over-the-top tragedy with a forced happy ending.

The problem with Cymbeline is that it tries to do too much all at once. I can sympathize with WS on this front because that is sort of my problem as a writer. I am forever trying to say too much in any given sentence, paragraph, brief, essay or blawg.

But Cymbeline really drives home the consequence of too much complexity, of trying to say too much all at once. In this play, the action is triggered when the male lead, Posthumus, is banished for being so presumptuous as to exchange secret marriage vows with the king’s daughter, Imogen. While in exile in Italy, Posthumus brags about his girlfriend’s beauty and then accepts a bet with some random Italian, who swears he can seduce Posthumus’s girlfriend, Imogen. Meanwhile, Imogen’s step-mother encourages her creepy son Cloten to put the moves on Imogen. She wants Cloten to marry his step-sister, whom the mother intends to assassinate, along with her husband, so that Cloten will end up on the throne. To avoid the advances of the icky Cloten and to protect her true love, Imogen disguises herself as an effeminate Frenchman and flees to Wales. While in the Welsh mountains, Imogen stumbles upon an old guy living in a cave with two young men. Imogen does not know that these young men are really her long-lost brothers, kidnapped twenty years ago—before Imogen was even born. The kidnapper was an angry courtier, banished for supposedly conspiring  with the Romans against King Cymbeline. But the old exile and the boys, who also have no idea who they really are, agree to give Imogen, herself disguised as a French boy, shelter.  Meanwhile, Cloten, disguised as Posthumus, catches up with Imogen in Wales. He sees through the cross-dressing. He tries to rape her. His effort is thwarted, however, by Imogen’s brothers, who behead Cloten to prevent the assault. Imogen is a bit upset about all this and so takes some “medicine” that her step-mother had given her as a parting gift. Unbeknownst to Imogen, the “medicine” is really a deadly poison. At some point, an entire Roman legion is defeated by a small band of outcasts. This outcome has something to do with the God Jupiter appearing in a vision at the eleventh hour, which a soothsayer is called upon to interpret. Eventually, the stars of the star-crossed lovers are uncrossed—but only after it turns out that Imogen did not really die from drinking the poison; the wicked step-mother dies instead. And because the King is reunited with his long-lost sons who will now inherit his kingdom, he permits Imogen to marry whomever she wants. Moreover, the king decides that, while he is in a forgiving mood, the Brits will make peace at last with the Romans; all prisoners will be pardoned; and everyone is invited to a big feast.

The problem with this “problem play” is now, perhaps, clear? It’s as if WS was trying to cram bits of As You Like It, King Lear, Othello, Coriolanus, Hamlet, Measure for Measure, Henry V, The Tempest, and Romeo and Juliet all into five acts.

In any event, as a lawyer striving to teach prospective lawyers how to communicate better, I vow to be vigilant against my own Cymbelinean tendencies. Long live concision, precision, and Clintonian zingers!

Sunday, September 9, 2012

Impediments, Schmediments

 My daughter is now memorizing Sonnet 116. It should take her another five minutes. This is because she is nine. Also, this is because Sonnet 116 is among Shakespeare’s most accessible and, therefore, most popular sonnets. But if you look at it through a lawyer's jaundiced eye, the poem seems a tad outrageous in its rhapsodic simplicity.

Let’s analyze:

“Let me not to the marriage of true minds/ Admit impediments.”

That means “I will not entertain the possibility that true love will tolerate barriers” or, basically, “love conquers all.” But isn’t that a strange thing for the author of Romeo and Juliet to assert? One can easily think of all manner of things that love alone cannot conquer: family feuds, disease, global warming.

“Love is not love which alters when it alteration finds,/ Or bends with the remover to remove.”

First of all, the “which” in this sentence should be a “that” because it introduces a restrictive, not a nonrestrictive, clause. In any case, the sentence means “love does not change in response to changed circumstances.” Oh, really? I submit that anyone who has stayed married for more than four years will tell you that love requires that a person alter and bend in all sorts of ways to deal with both unforeseen events as well as the eternal return of the same. Otherwise, partners would be tempted to open fire when they see that, YET AGAIN, he has failed to put the toilet seat down or ONE MORE TIME she has instinctively finished his sentences during a dinner party.

“O no, it is an ever-fixed mark,/ That looks on tempests and is never shaken.”

Alas, we have another grammar lapse here. “That looks” should be “which looks” if the comma is proper, such that the business about “tempests” is an aside describing a category of “marks,” not a specific “mark.” In any case, this bit means “Love stays in one place like a lighthouse in a storm.” Give me a break! A “love” that rigid would hardly make it through the first serious argument about religion, whether and when to have kids, and how to deal with the other person’s peculiarly exasperating mother.

“It is the star to every wandering bark,/ Whose worth’s unknown, although his height be taken.”

At least WS is being consistent here with the nautical metaphor. He is saying that “love is like a star guiding every lost ship; and though the star’s value—like love’s value—may not be known (or knowable) at the moment, it is clearly something that shines way above everything else.” Perhaps. Sometimes love really does shine through, acting as a kind of moral compass that puts everything else that people strive for—fame, fortune, beauty, athletic prowess, an edge over the professional competition—into perspective. But people often lose sight of love even when they have experienced it; it gets shrouded in mist as they strive for all kinds of other, often nonsensical things that seem incredibly important in the moment. They only realize how obtuse they were retrospectively, after love has walked out the door.

“Love’s not Time’s fool, though rosy lips and cheeks/ Within his bending sickle’s compass come./ Love  alters not with his brief hours and weeks,/ But bears it out even to the edge of doom.”

Here is some wisdom. WS is saying that “love—real love—is not so pathetic that the mere passage of time will undo its hold on the heart. Sure, physical allures will fall prey to time, which ravages all, just as Death, with its razor-sharp scythe hacks away at everything that comes within Its path. But ‘love’ has got to be more than physical attraction to youthful beauty or it is more accurately called by another name that rhymes with ‘bust.’”

“If this be error and upon me proved,/ I never writ, nor no man ever loved.”

My daughter really loves this part. It was the easiest thing to memorize. She also thinks it is funny. WS says: “If I am wrong about my definition of love and you can prove it, well then, I never wrote anything, and no one has ever been in love.” That is, Shakespeare is so confident about his definition of love that he issues a challenge akin to those associated with professional wrestling. He asserts that he can only be wrong if: (1) he has never written anything; or (2) no one has ever been in love. First, he has clearly written things. Duh. He is in the process of writing something as he makes the assertion. Moreover, he is widely recognized as being among the best and most prolific writers ever. Second, plenty of people claim to have experienced love. Including the sonnet’s author. So this argument is akin to saying “I am only wrong if you can establish that I do not exist.” Or “I am only wrong if gravity is an illusion and the sky is not blue.” Who would bother to mount a refutation in the face of such confidence?

Well, actually, scientists and philosophers, for instance, have long been in the business of challenging beliefs that people think of as self-evidently true. And in the process, they have discovered that nature is way more complicated than even super-smart folks like Newton once surmised. In other words, human beings, if they work at it hard enough, can continuously push the boundaries of The Knowable. So arguments like the one in Sonnet 116’s couplet are kind of puerile.

In any event, even a moderately reasonable person has to admit that begging the question is not the best rhetorical strategy. “I am right because I can’t be wrong” is just not a compelling argument. Especially, one hopes, in legal discourse.

So much for the marriage of romance and a lawyer’s true mind.

Saturday, September 8, 2012

Failure to Cohere

That last post of mine was not my best. I was tempted to make it disappear, assuming such things are still possible in cyber-space. But that seemed unfair. More sporting to see if I could turn yesterday’s debris into today’s fertilizer.
That last post failed because the attempt to forge connections between several unrelated things was both overly ambitious and underdeveloped. Of course, an inherent challenge (and much of the fun) in a blawg like this is in trying to make meaningful connections between seemingly incongruous things—like Shakespeare, current events, law or law practice, and, on occasion, my daughter’s latest cute antic. But the connections have to resonate beyond the confines of my own head.
Arguments about perceived similarities that seem strained or insufficiently supported will fail to spark the same kind of epiphany in a reader that I experienced, say, while jogging around Lady Bird Lake. To succeed, my blogging efforts need to simulate the process of building certain kinds of legal arguments. For instance, a legal argument can be premised on the perception that two different cases involving different facts are sufficiently alike such that the later one should have the same outcome as the earlier one. But convincing a decision-maker to see things your way first requires recognizing that the decision-maker has not necessarily read the earlier case upon which you want to rely. You have to tell the reader enough about the story underlying the previous judicial opinion—but not so much that the details overwhelm or distract. You then have to walk them through the analogy that makes you believe the old case is like your new case, never forcing readers to draw appropriate inferences on their own. You also have to convince your readers that the previous court’s reasoning in applying a legal rule to a particular set of facts was sound such that adopting the reasoning and the outcome in the new case would be just. You will not convince your readers if they cannot follow that reasoning. Yet equipping someone to follow someone else’s reasoning often means making explicit what was only implicit, making a causal chain even more accessible than it was in the original.
Another problem is this: although humans are inclined to see patterns everywhere, they do not simply see the same patterns that another human being sees. To enable someone else to see a pattern that seems obvious to you, you have to take a set of impressionistic images and turn them into a linear sequence forged in words. And because human minds are so tempted to make logical leaps, you cannot leave any gaps that those you are trying to convince will be tempted to fill in their own idiosyncratic way.
In other words, people see connections among disparate things easily. But getting people to make the same connections that you have in mind requires logical argumentation, which is hard.
Shakespeare kind of makes this point in Othello. All the bad guy, Iago, has to do is insinuate that Othello’s new bride may be messing around with Othello’s dashing young lieutenant, Cassio. Then Othello starts to see things that are not really there. Iago merely uses a few props and circumstantial evidence to induce Othello to misread innocent events and to discount evidence that contradicts an hypothesis he is, for whatever reason, predisposed to believe. If Othello had stopped and reasoned through the connections he was making, he may have been able to see how foolishly paranoid and insecure he was. Instead, he eventually comes unhinged by irrational jealous.  Even as he marvels at “that whiter skin of hers than snow,/ And smooth as monumental alabaster,”  he can no longer see his beloved Desdemona except in the dark terms Iago obliquely suggested. And so Othello kills her.
So, if you want to control how someone connects the dots—seeing the same pattern in distinct events that you see—you have to be incredibly meticulous about it. With legal arguments, a decision-maker may have no emotional investment in your cause or may be temperamentally predisposed to see disputes like yours in a particular way. Either way, you cannot leave it them to do the heavy intellectual lifting if you want to have any hope of success. Because, just as Puck recognizes that “reason and love keep little company together,” we have to see that reasoning and decision-making are not essentially coefficients. Intuitive gut reactions come more naturally to folks than plodding, coherent arguments.
For more on how our intuitions often operate at odds with reason (and verifiable reality), I direct you to a terrifically disturbing book by cognitive psychologists, Christopher Chabris and Daniel Simons: The Invisible Gorilla. I think it should be required reading for all lawyers and free-associating blawggers.

Monday, September 3, 2012

No Brother’s Keeper

If you read enough Shakespeare, you start to get the impression that the guy had a real problem with his brother. I’ve mentioned the unpleasantness between brothers Edgar and Edmund in King Lear. See “Acting, not Faking” post. And in Hamlet, we learn that Hamlet, Sr.’s younger brother, Claudius, poisoned the king while he was napping in the garden and then promptly married his brother’s distraught widow. In The Tempest, Prospero has been stuck on a desert island for about 14 years thanks to the evil machinations of his brother, Antonio. Antonio usurped Prospero’s dukedom, and the whole play is about Prospero creating the conditions such that he could exact revenge on his brother, but decides not to: “You, brother mine, that entertain'd ambition,/ Expell'd remorse and nature; …/Would here have kill'd your king; I do forgive thee,/ Unnatural though thou art.” (V.1).

Moreover, As You Like It—well, that play involves two sets of feuding brothers. The female lead, Rosalind, is the daughter of banished “Duke Senior,” who has been run out of a job and driven into exile in the forest by his brother, “Duke Frederick;” and the male lead, Orlando, is the wronged younger brother of Oliver, who inherited their father’s fortune and was entrusted to use some of it to provide for Orlando’s education. But instead of spending a dime on Orlando, Oliver has ensured only that the guy wanders around in rags feeling very self-conscious about his ignorance:

Besides this nothing that he so plentifully gives me, the something that nature gave me his countenance seems to take from me: he lets me feed with his hinds, bars me the place of a brother, and, as much as in him lies, mines my gentility with my education.

As You Like It actually begins with a big dust-up between Orlando and big brother Oliver:

Now, sir! what make you here?

Nothing: I am not taught to make any thing.

What mar you then, sir?

Marry, sir, I am helping you to mar that which God
made, a poor unworthy brother of yours, with idleness.

Marry, sir, be better employed, and be naught awhile.

Shall I keep your hogs and eat husks with them?
What prodigal portion have I spent, that I should
come to such penury?

Shortly, Orlando and brother Oliver are going at each other physically and have to be pulled apart by an old family servant. Oliver then tells his brother and the servant, who merely intervened to prevent bloodshed, to get packing. Not exactly a portrait of fraternal love.

William Shakespeare from Stratford-on-Avon did have some brothers (and sisters, too). Three brothers, to be precise. Will was the eldest; but the others died before he did. Nothing in the little we know about these brothers suggested that they had some blood feud with Big Bro that might explain Shakespeare’s obsession with brother discord. For one thing, Will was out of the house by age 18 after his scandalous marriage to a much older woman who was already “with child” at the time.  And the rest of what we know about the brothers, thanks to christening and burial records, doesn’t suggest much fodder for high family drama:

Age at Death
Professional Life
World’s greatest writer
Worked with Dad as a glover’s apprentice, then became a haberdasher
No education or record suggesting he did much of anything
No education, but went to London to try to make it as an actor where he died, probably of the plague; brother William may or may not have helped him out professionally and may or may not have paid for the funeral

 So, assuming, arguendo, that the William Shakespeare from Stratford is indeed the person who wrote all those plays, I’d like to propose that it is more profitable to see the feuding-brothers motif in his plays as a metaphor for a larger phenomenon than as an obsession arising from the playwright’s biography. That larger phenomenon is kind of like what Freud called “the narcissism of minor differences.” Freud describes the concept in Civilization and Its Discontents; but, basically, the idea is that people who are very close—in terms of territory or culture—are often engaged in constant feuds. These feuds arise from fixating on a small, but critical difference that distinguishes the two groups. The difference may be something like religion when virtually everything else--food, language, history--is the same. Freud saw this tendency to fixate on our brother's one, salient difference as a way that humans vent some of their nastiest aggressive impulses to achieve greater cohesion within a circumscribed tribe. Those described as “other”—who are actually very similar—become the target of a community’s hostility such that the community can maybe achieve some equilibrium. It doesn’t really work, though, because, as Freud explains, humans keep finding more and more minor differences to feud about.

Recently, an example of this “narcissism of minor differences”—a kind of brother v. brother feud—seems to have erupted in the most elite judicial circle. I am referring to some rather public indications that the renowned Judge Richard Posner of the Seventh Circuit, conservative jurist and admired writer, has been taking aim at Justice Antonin Scalia of the SCOTUS, conservative jurist and admired writer. The latest manifestation of this brother feud is Posner’s scathing review of Scalia’s pricey new book, co-authored with Bryan Garner. The book, Reading Law: The Interpretation of Legal Texts, purports to offer lawyers a systematic way to make better textual arguments, whether the text be a constitutional, statutory, or contractual provision. To dispel any ambiguity regarding Posner’s view of this new book, Posner styles his review “The Incoherence of Antonin Scalia.” This feud is well worth following. Posner’s review, a great read in its own right, is available at:,0