Wednesday, October 31, 2012

To Seeing Past Sandy

Blow, winds, and crack your cheeks! rage! blow!
You cataracts and hurricanoes, spout
Till you have drench'd our steeples, drown'd the cocks!
You sulphurous and thought-executing fires,
Vaunt-couriers to oak-cleaving thunderbolts,
Singe my white head! And thou, all-shaking thunder,
Smite flat the thick rotundity o' the world!
Crack nature's moulds, an germens spill at once,
That make ingrateful man!

Lear on the heath, King Lear, III.2
Violent storms are humbling events, testing our priorities, our commitment to the social contract, our perception of leadership. Shakespeare liked to use storms as symbols of transformation, a catastrophic breaking point from which some emerge with a deeper understanding of how the world really works.
In King Lear, as Lear reels from his oldest daughters’ betrayals and the sense that his entire universe is coming apart around him, he wanders out onto the health where a storm assaults him. The storm reflects his rage as well as his impotence. But after the storm, as he stumbles feebly into a peasant’s hovel, he starts to see the world in non-egotistical terms for the first time. He expresses empathy for the peasants who had to live their entire lives where he is taking temporary shelter. In turn, these reflections humble him enough that he can, thereafter, at least make peace with his one loving daughter whom he has gratuitously wronged.
The Tempest begins with a storm. But this one is conjured up by the lead character, Prospero. The storm is a device Prospero employs to take charge of his destiny. He, not nature, transforms his fate, permitting him a chance to confront his enemies by having their ship crash on the island where he has been stranded for a dozen years. He then takes the opportunity to get his old job as Duke of Milan back and to set his daughter up with a royal husband who is almost worthy of her charm and wit.
The Winter’s Tale has the oddest, most shamelessly symbolic storm. A storm breaks out as Antigonus, a member of the court of Sicilia, is in the midst of carrying out orders from his crazed King to abandon a new born baby to die of exposure. The King has given this horrific order because he is convinced, absent any evidence, that the child born to his Queen is illegitimate. As Antigonus abandons the newborn, he sees the storm coming and says to the infant:
The day frowns more and more: thou'rt like to have
A lullaby too rough: I never saw
The heavens so dim by day. A savage clamour!
Well may I get aboard! This is the chase:
I am gone for ever.

Antigonus is then promptly killed by a marauding bear. Then, in the very next moment, a goofy Shepherd enters, muttering to himself about the waywardness of youth. Apparently, some pesky youngsters have let some of his sheep out and now he has to track them down before they are lost in the storm:
I would there were no age between sixteen and
three-and-twenty, or that youth would sleep out the
rest; for there is nothing in the between but
getting wenches with child, wronging the ancientry,
stealing, fighting—

The Shepherd stops in his tracks—“Hark you now!”—as he spies the abandoned baby. He is convinced that the poor babe must be the product of some dalliance:
though I am not bookish, yet I can read
waiting-gentlewoman in the 'scape. This has been
some stair-work, some trunk-work, some
behind-door-work: they were warmer that got this
than the poor thing is here.

The Shepherd decides to “take it up for pity.” Next enters the Shepherd’s son, whom Shakespeare merely names “Clown.” Without warning, what has been a relentlessly bitter tragedy for three Acts has suddenly turned into a pastoral comedy. The Shepherd and Clown marvel at the storm, at the bear-mutilated corpse of Antigonus, and at the babe’s luck in having survived all the commotion. They then exit, vowing to “do good deeds.” Then, weirder still, the next character that enters is called “Time.” Time makes but one brief appearance to deliver a zippy monologue, delivered directly to the audience. Time explains that the action of the play is going to skip ahead sixteen years just because he feels like it:

 I, that please some, try all, both joy and terror
Of good and bad, that makes and unfolds error,
Now take upon me, in the name of Time,
To use my wings. Impute it not a crime
To me or my swift passage, that I slide
O'er sixteen years and leave the growth untried
Of that wide gap, since it is in my power
To o'erthrow law and in one self-born hour
To plant and o'erwhelm custom.

As if to suggest that time heals all, Time then explains what has happened in the intervening years since the storm struck. The baby, now a young beauty named “Perdita,” has “grown in grace” and what becomes of this “shepherd's daughter” is to be revealed in the remainder of the play. Time ends his little ditty with a lame joke about how he hopes the audience will allow the play to continue because he assumes they have spent their time even more foolishly before and if not, he “wishes earnestly [they] never may.”
Right about now, I wish Time would just skip ahead and show that the raw sewage engulfing Hoboken has been removed, that the miraculous NYC subway system has been restored, and that the millions of folks responsible for so much of this country’s vitality in the great Northeast have not only withstood Sandy, but flourished in the storm’s wake.

Saturday, October 27, 2012

An English Precursor of The Red States, Blue States Thing

O, let us pay the time but needful woe,
Since it hath been beforehand with our griefs.

“The Bastard,” King John, V.7
One of Shakespeare’s most political plays is also among his least read. Fewer still bother to produce it. At least I’ve never had a chance to see a production of King John, and I am a glutton for such punishment.  King John is one of the history plays, named for a medieval English monarch.  John was son of Henry II and Eleanor of Aquitaine, who are the stars of that great flick, A Lion in Winter (played by Peter O’Toole and Katharine Hepburn). John was one of three sons vying (scheming, really) to be named Henry II’s heir before he dropped dead. Seemingly, the boys all hated each other and their dad, who didn’t trust any of them. One reason the family may have been a little dysfunctional was the King’s decision to imprison his own wife during the kids’ formative years.
But the main character in King John isn’t really John.  Instead, “The Bastard” is the fellow at the heart of all the drama, the real hero—to the extent that the world of political intrigue allows for heroes. The Bastard becomes a focal point when King John and his rather controlling French mama figure out that The Bastard is probably the son of the late King Richard I, aka “Richard the Lionhearted” who, for the English crowd, had the kind of gravitas we associate with George Washington and Abe Lincoln. King John and Mama Eleanor decide to bribe The Bastard with knighthood to get him on their team. He later proves very committed to that team, trying his best to negotiate a peace deal between feuding France and England, for instance. But then there are problems with an offended pope, such that John gets excommunicated. Not to mention various assassinations and acts of treason within the English court. So the French find a way to attack anyway. In the end, the French are defeated; however, King John dies shortly thereafter, poisoned by an irate monk.
At play’s close, The Bastard articulates the play’s moral. He suggests that England “never shall,/ Lie at the proud foot of a conqueror,” but it does a fine job of shooting itself in the foot. If England’s own would just behave themselves going forward, The Bastard thinks “Nought shall make us rue,/If England to itself do rest but true.”
That idea is pretty hilarious considering Shakespeare (and his audience) already knew what would followed—which was a few more centuries of internal, bloody power struggles. That in-fighting did not cease until the conclusion of the War of the Roses (the domestic power struggle between the two main English factions, the Lancasters and the Yorks). That civil strife was finally brought to a close by a usurping member of the Tudor clan, Henry, the Earl of Richmond, who becomes Henry VII, Elizabeth I’s grandpa. Got all that? And even though Henry VII’s ascension ends the Lancaster v. York feud, the transition from his son’s reign up to and through Elizabeth’s is not exactly a story of domestic tranquility.  So, in Elizabeth’s/Shakespeare’s day, one could hardly have heard The Bastard muse about how great it would be if England would just be true to itself without choking back a rueful laugh.
The Bastard’s views about the particularly destructive nature of internecine strife still resonate. He longed “[t]o push destruction and perpetual shame/Out of the weak door of our fainting land” (V.7) just as so many Americans, especially in swing states, must long to get out from under the barrage of negative campaign ads. Worse, our obsession with peculiarly petty divisions and power-grabs seems to guarantee a kind of communal stagnation when there is so much important and interesting work to be done to enable a future we would actually like to live in. Some, of course, find the whole red states v. blue states drama exhilarating. But I bet most see those maps as evidence of hopeless gridlock, proof that we are our own worst enemies screaming at each other from inside competing echo chambers. We then shrug, reach for the remote, and sigh, “Well, at least there’s football.”

Friday, October 26, 2012

Friends, Yeomen, Countrymen

The reporting on the presidential horse-race suggests that the front-runner status has been flipping back and forth on a daily, perhaps hourly basis since that first debate. This development reminds me of the dynamic captured in those famous funeral speeches everyone studies in high school. As you probably recall, in Julius Caesar, after Caesar has been assassinated on the Senate floor, Brutus gives Caesar’s protégé, Marc Antony, a chance to speak at the funeral. Antony is allowed to do so only by accepting several conditions. He must:
·         “not in your funeral speech blame us,/ But speak all good you can devise of Caesar;”
·         “say you do't by our permission;” and
·         speak only after Brutus’s “speech is ended.”
Brutus, confident in his rhetorical powers and in the righteousness of his position, takes the stage first despite the mob’s angry shouts. He explains that he and the other Senators killed Caesar as a matter of “honour.” He invites the mob to be “the better judge” of his deeds after recalling that Brutus was Caesar’s “dear friend.” (We should all have such friends, huh?) But despite loving Caesar, Brutus explains that he “loved Rome more.” Within a few minutes, Brutus has the mob eating out of his hands. He ends with a naked appeal to their self-interest, pride, and patriotism:
Who is here so rude that would not be a Roman? If
any, speak; for him have I offended. Who is here so
vile that will not love his country? If any, speak;
for him have I offended. I pause for a reply.

The mob responds, as mob’s do, in unison: “None, Brutus, none.”
Then Brutus makes what seems in hindsight to be a really foolish/arrogant tactical decision. He closes his speech by assuring the crowd that the same dagger that he used to kill Caesar should be turned on him, Brutus, “when it shall please my country to need my death.” As the crowd shouts, “Live, Brutus! live, live!,” Brutus modestly entreats them to pretty please be polite enough to stay and listen to Antony: “I do entreat you, not a man depart,/ Save I alone, till Antony have spoke.” Brutus then leaves the premises.
We all know what happens next. Marc Antony gives an even better speech—a way better speech. It is more palpably emotional and more subtly manipulative. It is also really long. He starts with the “Brutus is an honorable man” refrain, which really gets the crowd going. They may not all be the sharpest knives in the deck, but they get it—the steady segue from seeming sincerity to irony and then to outright derision. So Antony is quickly able to defuse the impact of Brutus’s speech through sheer repetition and juxtaposition:  “Brutus says he was ambitious;/ And, sure, he is an honourable man.”
Then, Antony reminds the crowd about Caesar’s will, in which he left all of his estate to them, the people. Next, he starts in with the moving anecdotes that show how Caesar was always a true man of the people despite the lofty heights he attained; and Antony contrasts the body of Caesar’s good deeds with what elites like Brutus and Cassius did to the literal body of this man-of-the-people, describing in gory detail the stab wounds “weeping” blood.
Once the crowd has been moved to righteous indignation Caesar they focus more easily on the violence he experienced than on the high-minded, abstract concept proffered by Brutus: that the assassination was really done for them, the people. Next, Antony ups the ante still further. Insisting that he is not trying to “stir you up/ To such a sudden flood of mutiny,” he does precisely that. With a last, brilliant rhetorical flourish he bids Caesar’s wounds to speak for him (since he has promised Brutus he himself will not speak ill of Brutus and his cohorts):
. . . . were I Brutus,
And Brutus Antony, there were an Antony
Would ruffle up your spirits and put a tongue
In every wound of Caesar that should move
The stones of Rome to rise and mutiny.

The crowd is now ready to go. They all swear in unison: “We'll mutiny.”
So nice to know that politicians today do not presume they can manipulate the masses with relentless repetition, emotional appeals, and conscious efforts to tap into our most primal prejudices and economic fears. . . .  All hail Citizens United!

Wednesday, October 24, 2012

Lend Me Your Ears

I voted today. Always a nice feeling. But while anticipating this event, I suddenly recalled something that happened, TWENTY YEARS AGO, on the eve of the 1992 Presidential election (Bush I v. Clinton). The night before that election, I launched a little theater company in a Deep Ellum bar with a small group of wild-eyed romantics. As part of the celebration, we performed a political satire I’d written called “Lend Me Your Ears,” a 45-minute piece comprised entirely of Shakespearean mash-ups.
This eve, after I got over the trauma of realizing that this event occurred TWENTY YEARS AGO, which means that I am OLD, I thought I might as well try to blog about it. It’s not that I can whip out the script and quote passages. That script is long gone, as much a victim of “Time’s bending sickle” as I am. I only remember a few random bits and those unforgettable characters—Bush asking us to read his lips, Clinton asking us to look past Jennifer Flowers’ big hair, Pat Buchanan inciting a culture war, Ross Perot with his fantastic ears. And I remember a packed house. And lots of laughter. Perhaps that could have been because of the alcohol that was flowing freely. But I prefer to think that the crowd actually understood the resonances between the Bard’s work and current events and found it all hilarious.
Shakespeare is full of subtle political commentary that has, unlike my memory, withstood the test of time. For instance, there is the scene in Richard III in which Buckingham, basically, Richard’s chief campaign strategist, advises Richard to resist the offer of power “but by mighty suit” and to make sure that, when he is approached about assuming the throne, he “get a prayer-book in [his] hand” and be seen “stand[ing] betwixt two churchmen.” Political leaders still know that we prefer the idea of a politician who, like Plato’s Philosopher King, has to be dragged reluctantly into a race because, despite his personal preference for things spiritual, he will assume the mantle of power only because “his country needs him.” So politicians still play that game. And, amazingly, people still fall for it.
Because has so many political insights to offer, until this excruciatingly long, contentious, and close election is behind us, I am just going to offer up some. That exercise will, perhaps, remind that, even before the advent of modern democracy, human beings have been indulging in the same silly antics. Meanwhile, we can also marvel that, even as we are bludgeoned with those silly antics, many refuse to lose faith entirely in the idea that we deserve better.

Sunday, October 21, 2012

Restraint Can Set Us Free

[T]his rough magic
I here abjure, and, when I have required
Some heavenly music, which even now I do,
To work mine end upon their senses that
This airy charm is for, I’ll break my staff,
Bury it certain fathoms in the earth,
And deeper than did ever plummet sound
I’ll drown my book.

William Shakespeare, The Tempest, Act V, sc. 1

Those who would be President have an extraordinary ability to resist throwing a punch or at least screaming bloody murder when they have been mischaracterized and misquoted ad naseum or seen their opponent reinvent him- or herself more than Madonna—all in hopes of appeasing an electorate with a memory shorter than a fruit fly. I am not a person who possesses such extraordinary abilities. Which is one of many reasons why I will never run for President (or any political office).

But I am a lawyer. And those who would be lawyers must manage disappointment, frustration, and exasperation on a routine basis. Part of dealing with these emotions means learning to resist the temptation to abuse the power inherent in a law license—even when you are on the receiving end of misconduct by those who forget that they, as lawyers, are officers of the court. After all, legitimate power is always tempered by a sense of responsibility.

Shakespeare’s The Tempest is about this difficult balancing act. Prospero, the central character, was the Duke of Milan before he and his little daughter Miranda became castaways on a desert island. Prospero got into this predicament by abdicating his political responsibilities to his brother, Sebastian. Prospero preferred lofty academic pursuits to the tedium of governance.  And because Duke Prospero felt powerful enough to forego taking an active role in governing, the treacherous Sebastian was able to conspire to have Prospero and Baby Miranda whisked away one night and deposited on a leaky barge, hoping that Prospero and his only heir would die at sea. Lucky for them, they managed to crash on an island somewhere in the Mediterranean instead. While stranded on this island for a dozen years, Prospero had nothing much to distract him from his academic pursuits and his interest in magic and the occult. So he amassed a very different kind of power—which, when the play begins, he wields to orchestrate a storm that causes a ship carrying those responsible for his plight to crash on the island. Prospero then seems poised to exact revenge.

Instead, as the play unfolds, Prospero gradually learns to exercise restraint. As a result, by play’s end, he prepares to return to the land of the living (Milan) where he will presumably exercise power more wisely this time: taking responsibility, as he had failed to do when he was the nominal Duke, but without trying to assume absolute control, as he had as godlike master of the island. While teaching his enemies a thing or two about despair and redemption, Prospero himself learns a valuable lesson about compromise.  Therefore, the play ends happily, with Prospero at last liberating the noble sprite, Ariel, who has assisted Prospero so dutifully during his tenure on the island. With his last words, Prospero uses a legal metaphor to ask the audience to release him as well:  “As you from crimes would pardon’d be,/ Let your indulgence set me free.” (Epilogue, lines 19-20).[1]

Seemingly, real freedom always involves letting go—even when you have been terribly wronged. Because, unless you plan to spend your life on a “bare island,” fighting every fight makes you passion’s slave.

[1] Because The Tempest is considered Shakespeare’s last play, Prospero’s last lines are often seen as Shakespeare’s own farewell to the theater and to the writer’s life.

Friday, October 19, 2012

Once More Unto the SNOOTs

Last night, the presidential candidates participated in the annual Al Smith dinner, doing their respective best to impersonate stand-up comics. No fear, I will not critique those performances here. I simply note that watching them reminded me of a lesson I got recently from a fantastic former student when the tables were turned and he was the one critiquing my work. He reminded me that, if you have to explain your references too explicitly, you risk sounding pedantic—offending those who “got it” without needing any special explication. When it comes to humor, one often relies on an audience of insiders who “get it.” For instance, if you don’t keep up with the world of political pundits, you would not get the reference President Obama made last night to the tingle that once shot up Chris Matthews’ leg; but the President was speaking to a ballroom full of press people who know MSNBC’s Chris Matthews and well remember all about that tingle he got four years ago. So, at least in the context of that audience, the President could count on the joke hitting home.

Much of Shakespeare’s humor depends on at least some members of his audience possessing a certain kind of inside knowledge: a knowledge associated with SNOOTs. (For more posts on SNOOTs:  and For example, you have to be rather sophisticated about language to get most of Shakespeare’s scatological puns. And the guy was a big fan of using malapropisms as a symbol of incmopetence. Perhaps only those in the SNOOT contingent even know what a malapropism is; in any case, you can only see how malapropisms are funny if you know that a verbal mistake is being made. As an illustration, consider the little snippet from Measure for Measure that I used to introduce my last post in which the local constable mistakenly uses the word “benefactor” when he means “malefactor.” The humor comes from recognizing the word switcheroo in the face of the character’s own earnest ignorance.
Come to think of it, Shakespeare must have had some special experience with a member of law enforcement who was peculiarly challenged in this way. In Much Ado about Nothing, “Officer Dogberry” suffers from the same syndrome:
First, who think you the most desertless man to be constable?

Hugh Otecake, sir, or George Seacole; for they can write and read.

Come hither, neighbour Seacole. God hath blessed you with a good name: to be a well-favoured man is the gift of fortune; but to write and read comes by nature.

Both which, master constable,--

You have: I knew it would be your answer. Well, for your favour, sir, why, give God thanks, and make no boast of it; and for your writing and reading, let that appear when there is no need of such vanity. You are thought here to be the most senseless and fit man for the constable of the watch; therefore bear you the lantern. This is your charge: you shall comprehend all vagrom men; you are to bid any man stand, in the prince's name.

Back when I was in drama school, I was told that the word “malapropism” actually came from a character in a play by Richard Sheridan, The Rivals (1775). In this play, the haughty character, “Mrs. Malaprop,” frequently lets fly with malapropisms while making pronouncements about all kinds of things, e.g., she directs a younger woman to “promise to forget this fellow—to illiterate him, I say, quite from your memory.” Wikipedia, however, suggests that giving Sheridan responsibility for naming the term may have been undue; at least Wikipedia presently claims that “malapropism” first appeared in the Oxford English Dictionary as earlier as 1630. Yet I prefer the story that gives the dramatists all the credit: suggesting that Shakespeare captured the syndrome and then Sheridan pushed the device even further by creating a character who could hardly utter a sentence without some aggressive display of verbal ignorance, which then gave the syndrome a “local habitation and a name.” [A Midsummer Night’s Dream, V.1]

Whatever the truth may be, malapropisms—intentional or otherwise—are funny only if you are a language insider. Talk about a translation challenge! And, really, a great deal of humor requires that the audience appreciate allusions to fairly exclusive knowledge. Jokes based on such allusions serve as a shortcut, packing a lot of information into a pithy form. The problem arises when you cannot count on your audience to get the reference. While law students can count on each other to understand why naming a men’s intramural football team “Mens Rea” is funny, the joke would fall flat outside their little (nerdy) community.

Relying on humorous allusions to make a point is increasingly challenging as your audience becomes more diverse or opaque—although the pay-off is big if you can score a connection. This is, perhaps, something to ponder whenever trying to infuse legal writing or texts about legal writing with ostensibly witty references. . . .  

Sorry. Talking to myself again—as a means to dissolve a linguistic mystery and thereby debut my own allusions.

Monday, October 15, 2012

Lean Upon Justice

If it Please your honour, I am the poor duke's
constable, and my name is Elbow: I do lean upon
justice, sir, and do bring in here before your good
honour two notorious benefactors.

Benefactors? Well; what benefactors are they? are
they not malefactors?

If it? please your honour, I know not well what they
are: but precise villains they are, that I am sure
of; and void of all profanation in the world that
good Christians ought to have.

Measure for Measure, II.1
I began this blawgging enterprise by focusing on a nun-in-training, Shakespeare’s “Isabella” in Measure for Measure. Indeed, this blawg is named for the “true complaint” Isabella lodges against The Establishment, revealing the tawdry things she has experienced while trying to save her brother from a capricious death sentence:
O worthy prince, dishonour not your eye
By throwing it on any other object
Till you have heard me in my true complaint
And given me justice, justice, justice, justice!

This past week, a full-blown nun visited the law school where I teach: Sister Helen Prejean. Sister Helen is a Roman Catholic social-justice celebrity and a leading advocate for abolishing the death penalty. During her visit, she discussed two books about her experiences serving as a spiritual adviser to people on death row: Dead Man Walking and The Death of Innocents. While ruminating about the various political, cultural, and religious forces that explain the death penalty’s resilience in parts of this country—most notably, in the Deep South—Sister Helen’s feisty, funny, poignant commentary focused primarily on the role poverty plays. She quoted the adage, “No one with capital gets capital punishment.” In passing, she also mentioned that Martin Luther King, Jr. had noted that a nation’s budget is a moral document, as it identifies a country’s social priorities; she then suggested there is something odd about the vast sums of money that states continue to spend on executing a handful of people while so many other needs go unmet. For some sobering stats, see
I was curious about what precisely MLK had said on this front. What I discovered was that he made the following statement in his famous anti-war speech: “A nation that continues year after year to spend more money on military defense than on programs of social uplift is approaching spiritual death.” That speech, "Beyond Vietnam: A Time to Break Silence," was delivered on April 4, 1967 in NYC’s Riverside Church—exactly a year to the date of King’s assassination (on April 4, 1968). A sobering synchronicity.
Another person of interest whom Sister Helen quoted during her talk was Justice Antonin Scalia. Also a Roman Catholic. Also a powerful advocate for various policy positions, though on the other side of the death penalty issue from Sister Helen. During her talk, Sister Helen noted Justice Scalia’s preference for textualism, a particular approach to construing legal documents (such as constitutional provisions like the Eighth Amendment’s prohibition of “cruel and unusual punishment”); and she noted the limitations of that approach by reminding that every decision to engage in textual interpretation (aka hermeneutics) begins by selecting the text upon which one decides to focus. Sister Helen then used as an example of such selectivity comments Scalia made during a conference on Catholicism and the death penalty in America that focused on passages from the Old Testament that describe a wrathful God, quite comfortable with meting out the death penalty. I found the implicit analogy that she attributed to Justice Scalia fascinating. He contends that textualism permits reading the Constitution’s Eighth Amendment as compatible with the modern death penalty just as American Catholics can read religious doctrine as being compatible with the death penalty. But at least the latter only works, as Sister Helen suggested, if a person is rather selective about the text upon which you focus. If a Catholic wants to find support for the death penalty in religious doctrine, texts like Leviticus are, for instance, quite helpful. See, e.g., Leviticus 20:2 (requiring death for any who “giveth any of his seed unto Molech”); id. 20:9 (ordering that “every one that curseth his father or his mother shall be surely put to death”); id. 20:10 (condemning all adulterers to death); id. 20:27 (prescribing stoning for anyone who “hath a familiar spirit, or that is a wizard), etc. The textualist argument is, however, more difficult to make if the text upon which one focuses is in the New Testament, e.g., John 8:7, which quotes Jesus as saying to a mob preparing to stone a woman caught in the act of adultery: "He who is without sin among you, let him throw the first stone at her."
In short, the limitation of textualism as an approach to legal texts is exposed when the same argument is scrutinized in other contexts. The foundational premise—that someone interpreting legal text should start and, preferably, end with the “plain language of the text”—contains its own deconstruction. Because textual interpretation begins with an act of framing, “just looking to the text” for answers about that text’s meaning is not really possible. Finding the means to interpret texts justly is, I think, a better, less pretextual goal.

Saturday, October 13, 2012

Tragic Indeterminacy, Not Tragic Inevitability

A phenomenon that has long fascinated me about litigation is this: a lawsuit is like a chess match, in that you need to try to anticipate the consequences of your every move; but unlike a chess match, even if you are a masterful lawyer, your ability to foresee what will happen a few moves ahead is severely limited because the variables are so numerous and ineluctably unpredictable. No matter how long you have played the game, you cannot know with any certainty, for instance, how long a judge will sit on your motion, how that judge will ultimately rule on the motion, how precisely that ruling will affect the relative positions of the parties, or how any party will react to the changed circumstances even if the effect on the party’s interests seems obvious. Therefore, confidently predicting how a lawsuit will play out is silly talk; at best, you are trying to play probabilities or anticipate options by analogizing to similar past experiences. In other words, lawsuits are not deterministic systems.
Additionally, lawsuits can have huge, unanticipated consequences that are not obvious for many years after they are supposedly “resolved.” That is a message being borne out now in a news story that is not, perhaps, garnering as much attention as Joe Biden’s attempts to identify “malarkey” or Psy’s K-Pop “Gangnam Style.” But this story certainly caught my attention because of the accidental dramatic arc the story suggests.
Here are the basics: about a decade ago, in a case styled Thompson v. Western States Medical, the Supreme Court of the United States struck down a federal regulatory scheme directed at the practice of drug “compounding” by pharmacies. Historically, the practice of compounding had been what pharmacies did, back when pharmacists were truly druggists mixing up little potions to address their customers’ various ailments. Concocting medicinal drugs was a practice largely taken over by big pharmaceutical companies, which are heavily regulated and, I suspect most would agree, for good reason. But some compounding persisted even with the rise of Big Pharma. Congress eventually got antsy about how these practices were operating beyond the FDA’s reach. So Congress passed a big law in the 1990s to impose some oversight, which included provisions limiting compounding pharmacies’ ability to advertise their services.
This law was challenged in Western States Medical, which the SCOTUS decided in 2002. The Court found the law violated the First Amendment. More specifically, the SCOTUS concluded that the government had failed to carry its burden to show that the limits the law imposed on compounding pharmacies’ commercial speech was constitutional under the seminal “Central Hudson test.” And in explaining how the government had come up short, the SCOTUS described the long-standing Central Hudson test in terms that made the government’s burden seem even more onerous than it had previously appeared. In fact, the Court, in accusing Congress of paternalistic interference and of looking to solve phantom problems, seemed profoundly indignant about legislation that crimped the style of worthy, job-creating corporations who should be able to communicate about their services in a capitalist society that places a premium on the free exchange of information; besides, if the practices of these compounding pharmacies really posed a public safety concern, the Court suggested that this issue should be left to the states to handle on their own.
Sound familiar?
Anyway, in the wake of Western States Medical, some states where compounding was a thriving business did not see why they should interfere with these businesses. (And one can imagine that it was easier for local pharmacy boards to lobby state legislatures to leave them alone than it would have been to get the FDA off their backs.)
Fast forward ten years. A national Spinal Meningitis outbreak has now been linked to contaminated steroid injections concocted by some of these compounding pharmacies, causing some to wonder: What is a “compounding pharmacy”? Why are pharmacies able to make unregulated drugs? Why has the FDA been asleep at the wheel? NPR had a little story about this situation this week, expressly emphasizing the link between the contemporary health crisis and “little-known and lightly regulated companies called compounding pharmacies.” You can read about the report here:
The story caught my ear during my morning jog because, although Western States Medical was not mentioned by name, I recognized the facts of the case.
How did I even know about this case?!
A mere fortuity.
This case was a key authority in a moot court problem explored by students I coached for an ABA-sponsored competition a couple of years ago. Hearing about this random case got me to thinking about indeterminacy more broadly. A judicial decision about commercial speech rights that led to a lack of regulatory oversight over a little-known industry now connected to a serious public health problem— Well, that surprising causal chain interests me.
Do you think the seeds of that causal chain were lying dormant from the outset? Did the SCOTUS have to rule as it did? And did states then have to permit compounding pharmacies to operate as they did? And then did compounding pharmacies have to produce injections for back pain that contained deadly viruses? Answering “yes” to these questions would seem like silly talk. Yet if you really believe in a deterministic universe you would have to say “yes” to each.
Greek tragedy relies on the premise that the universe is deterministic. Fate is hard-wired, and tragedy arises (1) when a hero (e.g., Oedipus) tries to resist his fate although to do so is hopeless or (2) when a hero (e.g., Agamemnon) simply accepts his fate even if it makes him feel icky; either way, the guy is doomed in advance. Thus, the ancient Greeks found the human condition tragic.
Shakespearean tragedy is a bit different. Shakespeare’s tragic narratives focus on the individual choices that set in motion the hero’s demise—but those choices are not presented as inevitable.
Consider Macbeth. When we first meet this Scottish war hero, the “Weird Sisters” greet him as follows:
All hail, Macbeth! hail to thee, thane of Glamis!

All hail, Macbeth, hail to thee, thane of Cawdor!

All hail, Macbeth, thou shalt be king hereafter!

That is, the witches greet Macbeth by his current title (thane of Glamis), a title (thane of Cawdor) he is about to receive although he hasn’t heard the big news yet, and then a seeming prediction that he shall eventually be king. Because Macbeth decides that the latter is his destiny, he and his eager spouse launch a bloody plot to make it so. If the whole thing were destined, it would be tempting to see Macbeth as a victim, a mere pawn of the gods. But the play really does seem to put the onus on Macbeth. The tragedy is that he decides to accept what the witches say as a foregone conclusion; and he does so to rationalize the horrific actions that he decides to take. Then, in pursuing what he thinks he wants/deserves, he brings about his own demise (because no guy is going to be king for long who only got the throne by murdering a perfectly respectable king, trying to frame his servants for the deed, and then assassinating those servants before they could be interrogated by the king’s heirs and supporters).
Shakespeare’s vision of tragedy is more modern than the Greek view. Most modern folks do not really believe that human actions and the fate of the cosmos are predetermined. And because things are not “written,” the consequences of human actions, including lawsuits, cannot be fully anticipated. Lawsuits and the judicial decisions that seem to “end” them can have far-reaching, surprising, and even tragic effects. But once those consequences become apparent, perhaps that information can and should be used when facing different, yet similar choices in the future. Those consequences should be used to urge taking a different fork in the road next time. Because, even if consequences cannot be predicted because they are mired in indeterminacy, we don’t have to resign ourselves to a tragic eternal return of the same.

Wednesday, October 10, 2012

Writing as an Act of Generosity

If I could write the beauty of your eyes . . . .
Sonnet 17
I just finished reading a really inspiring article about a HUGE writing crisis in this country—a crisis that chips away a bit at my soul each and every day like a faucet dripping on old porcelain. The article is inspiring because it focuses on some people who have not only identified a real problem but also come up with a template for fixing it. My favorite quote from this article comes from David Coleman, designer of a set of new high school writing standards that promote “lucid communication” over self-expression: “As you grow up in this world, you realize that people really don’t give a shit about what you feel or what you think.”
Perhaps it seems ironic that I—a blogger continually mouthing off about how I feel about this, that, and the other—should seize upon this statement to applaud. My approval stems from the fact that, as the context of the utterance makes clear, Coleman’s observation arises from an awareness of how people learn to write well—or, really, how people fail to learn to write well when the pedagogical emphasis is on self-expression. Self-expression is a laudable goal; but it is not the ideal focal point. This is because most people write to be understood by others, not just to vent. And being understood requires focusing on your readers’ needs, not just on capturing what is rattling around in your head.
And here are some things the article teaches that can be readily applied to legal writing:
·       Good writing has to transcend the idea of self-expression. In fact, a person does not effectively express anything about him- or herself without thinking somewhat mechanically about bridging the gulf between one’s interior life and the outside world.
·       Writing well indicates you can do other things well because writing well reflects precision. (And precision is important when it comes to, like, law, and other technical stuff.)
·       Moreover, writing reinforces reading comprehension, speaking ability, and listening skills.
·       Writing helps you comprehend a subject in a way that simply reading about that subject cannot do.
·       Good writing requires expressly linking related ideas—which means being mindful of conjunctions (and, or, but, yet) and the words used to introduce dependent clauses (although, despite, however).
·       You can’t deviate from the rules effectively until you understand what they are.
·       After announcing a conclusion or introducing a topic, you have to provide the reader with specific, concrete examples that substantiate the generalization. These examples should be introduced by words that inform the reader of the relationship between the specifics and what came before (e.g., specifically, for example, for instance).
·       Writers benefit from a structural formula they can follow to ensure that their exposition does not go astray.
And here is why I think Will Shakespeare, a notably good writer, would agree:
·       Even his most blatantly personal writing, the sonnets, adheres to a strict form that forced him to take his feelings and forge them meticulously into something worth sharing.
·       His writing reflects some of the most sophisticated thinking about all manner of things—mortality, human hypocrisy, romantic and filial love, deception, jealousy, class warfare, ambition—you name it.
·       His writing reflects: tremendous literacy, an amazing ear for speech as a reflection of character, and an understanding that words can and should be exploited to make music as an additional means to convey information.
·       All of his plays adhere to a five-act structure, are made of lines that fit a precise pattern, and employ plots already proven to resonate with audiences.

In sum: superb creative writing is not just a matter of self-expression; so why would we ever think that the best way to prepare people to write something far more prosaic involves placing a premium on self-expression? Learning to write like a lawyer wouldn’t be so painful, perhaps, if people were taught to embrace a formulaic, rule-based approach to writing earlier in life. Certainly, reading the writing produced by those who would be lawyers would be less painful if those writers saw certain formulas as liberating, not stifling.

Monday, October 8, 2012

“What news on the Rialto?”

This weekend I saw a terrific acting company (“Actors from the London Stage”) perform my least favorite of Shakespeare’s plays (The Merchant of Venice). This company is so terrific because they create every production using a simple, yet profound principle: cast a small group of actors who really know how to speak Shakespeare’s lines and let them interpret, edit, and stage a production unburdened by a set or a director with some tedious concept. I was hoping that this terrific group might make me rethink Merchant. But no. Their superb handling of the text just illuminated how irredeemable the piece is, which is, at its core, anti-Semitic. Even more, it really seems to celebrate bigotry—or at least the human tendency to use fear of the Other as a means to feel empowered and united during trying times.
The confusing thing is that the play’s most moving speech is Shylock’s “Hath not a Jew eyes” monologue in which Shylock explains his desire for revenge against Antonio (the merchant of the play’s title). Antonio, whom everybody else seems to think is the world’s greatest guy, has made a public habit of scorning and deriding Shylock, his profession, and his tribe. In light of this tendency, Shylock wonders why people expect him to do anything but follow the example set for him by Christians since Jews too are human beings with all the same sensibilities:
. . . .  He hath disgraced me, and
hindered me half a million; laughed at my losses,
mocked at my gains, scorned my nation, thwarted my
bargains, cooled my friends, heated mine
enemies; and what's his reason? 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
revenge? If we are like you in the rest, we will
resemble you in that. If a Jew wrong a Christian,
what is his humility? Revenge. If a Christian
wrong a Jew, what should his sufferance be by
Christian example? Why, revenge. The villany you
teach me, I will execute, and it shall go hard but I
will better the instruction.

It is tempting to see this speech as an internal deconstruction of the play’s larger message, which rewards those who scapegoat Shylock and whose final victorious act is to subject him to a forced conversion or else risk banishment or death. But I think that is really wistful thinking. At best, the deconstruction happens now in spite of Shakespeare’s intent. Even so, the deconstruction has to be imposed from the outside by a contemporary interpreter of the text.
Which reminds me of my problem with originalism and its kissing cousin textualism. These modes of interpreting legal texts pose problems because texts, including those memorialized in legal documents (like Constitutions, statutes, even contracts and patents), do not stand still. Nor does human culture. Nor human values. Time marches onward, often leaving all manner of ambiguities in its wake. Sometimes those ambiguities do not even exist until later; sometimes they were simply overlooked when the text was drafted. Or with some texts, like Merchant or that bit in the US Constitution that counted African-American slaves as only 3/5s of a person for purposes of calculating how many representatives to which a state would be entitled, the problem is not a true ambiguity but only that contemporary readers do not like the actual words they read because the text reflects values that now seem repugnant; so seeing ambiguities that do not really exist is a means to avoid the harder problem of recognizing that heroes (like a nation’s founding fathers) had some really creepy ideas. Textualists would say, “Well, if people come to see things that way, they can just amend the text. Problem solved.” The problem is, even if a majority has moved on and recognized that a certain text now reflects bad values, bad policy, or a bad deal, that does not mean that changing the text can be readily effected. Change is hard. Changing some of the more egregious portions of the Constitution, for instance, took a really bloody war. And every time I see someone driving a big pick-up truck with a “SECEDE” bumper sticker on it or lauding “state’s rights,” I wonder if we aren’t still fighting that war.
The title of this post is a recurrent line in Merchant. In the play, each time someone asks the question, the implicit answer is that the news is bad: Bassanio is in debt again and needs to borrow money, Antonio’s ships have been wrecked at sea. My news from the Rialto is that I shall henceforth forswear trying to find ways to redeem The Merchant of Venice. Sure, it has some great stuff in it. But it is fundamentally flawed because it does not just reflect upon an ugly side of human nature; it glorifies it. And that proves Shakespeare was human. All too human. Sigh.