Wednesday, January 30, 2013

Not In Our Footsteps

 My daughter must try-out for a class production of A Midsummer Night’s Dream this week. It is a fifth-grade tradition. Each student has been asked to submit a list of the “top three” roles for which she would like to be considered. My daughter is not enthused. Here is her list:
(1)        one of Titania’s fairies (who just says “I am Peaseblossom”);
(2)        “the guy who plays the Lion” in the Mechanicals’ play-within-a-play because “all he has to do is roar;” and
(3)        the Little Indian Boy (who is the subject of the dispute between Titania and Oberon but who never appears on stage).
Ach! How can that be? “Beshrew that heart that makes my heart to groan/ For that deep wound [she] gives” to me! [Sonnet 133]  
Then again, I must take comfort knowing that it isn’t that my daughter dislikes Shakespeare. She actually loves memorizing sonnets and monologues and then showing over her wondrous feats of mental retention. But she likes to do so in the comfort of her OWN HOME. In other words, it isn’t Shakespeare but performing Shakespeare (or much of anything) that she dislikes.
So I should get over it. But this is kind of like being a trial lawyer whose kid is required to participate in a mock trial and that kid says she would be willing to be:
(1)        the fourth-chair attorney whose job it is to refill the water pitchers at counsel table;
(2)        the bailiff; or
(3)        a child of a person related to someone whose wrongful death was allegedly caused by the product at issue in the mock case—but who never appears in the courtroom.

Tuesday, January 29, 2013

How Stands It With Standing?

Recently, I was discussing with a non-lawyer friend the pending SCOTUS cases involving (1) the “Defense of Marriage Act” (DOMA) and (2) California’s Proposition 8. Both cases, as most everyone knows by now, involve the constitutionality of bans on same-sex marriage and thus denials of access to the legal benefits and responsibilities that accrue to those whose marriages states and the federal government do recognize. I shared with my friend my fear that the consolidated cases—and partly because they have been consolidated—may well be dismissed for “lack of standing.” That would mean that the Court would not reach the merits of the Con Law claims. This sense was solidified when I saw a post on the SCOTUS Blog describing a particular amicus brief just filed in the case:
This post describes a friend-of-the-court brief of the old-fashioned variety that is far less common these days; it is a brief written at the Court’s request, ostensibly seeking objective, expert guidance about a discrete subject relevant to the case. What is that discrete subject in this amicus brief? It has to do with standing. Harvard Law prof, Vicki Jackson, was asked to weigh in about “standing” problems suggested by the DOMA case. Professor Jackson has concluded that the set of Republicans in the House of Congress who have brought the appeal do not have “standing” to speak on behalf of the entire Congress, let alone to step into the shoes of the Executive Branch that elected not to defend the law that the appellate court had struck down below.
Likewise, the SCOTUS directly asked the parties in the Proposition 8 case to address a standing problem in that one. Specifically, the parties are supposed to explain how sponsors of the Proposition 8 ballot measure, as opposed to the state of California, which is charged with enforcing state law, had “standing” to bring the appeal that was unsuccessful below and is now pending before the SCOTUS.
Standing is a barrier born of the way the SCOTUS has long interpreted Article III of the Constitution, which expressly limits the kinds of cases that the federal judiciary can hear. Federal courts are supposed to be courts of limited jurisdiction; and the SCOTUS has decided that means these courts are only supposed to hear actual “cases” and “controversies.” This principle derives from the fact that Article III, section 2 uses those words—“cases” and “controversies”—in the short laundry list of the types of legal disputes federal courts are allowed to adjudicate. Here is the whole text:
The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
An astute reader such as yourself will notice that the word “standing” is not in there. Nor is the word “ripeness” or “mootness,” a couple of the Court’s other favorite “justiciability doctrines.” These doctrines have emerged over the years as the SCOTUS has fleshed out its understanding of the words “cases” and “controversies.”
This development is probably why my husband (also a non-lawyer) insists that “standing is a crock.” Certainly, standing is, in some sense, a court-invented doctrine that permits the court to reduce its own workload. But I, a lawyer, wouldn’t go so far as to say that that makes standing a “crock.” Yet I understand the sentiment because I once felt that way myself. In fact, among law students, I would say I was rather slow to embrace the whole concept—especially in Con Law cases with big social implications. If a dispute over the proper way to interpret a Constitutional provision was a meaty one, if the facts of the case provided a vivid instance of why the provision needed interpretation, and the parties in the suit represented much larger groups that cared about getting those issues resolved in the name of Justice, why should it matter whether some technical “threshold” requirement was satisfied? Indeed, it seemed rather absurd that a case, after years of litigation, could be dismissed at the highest level for “lack of standing”—the rationale for which is the principle of “judicial economy.” How could it be “economical” or efficient to throw out a case on a technicality when so much work had already been put into teeing it up such that the Court could resolve a matter of textual interpretation?
That is what I, as a law student, thought. I have grown since then. Now I rather enjoy these threshold justiciability issues when they arise. (Especially when I am on the defense side of a case and I can really appreciate the value of nifty tricks developed to help judges reduce their workload. . . .)
Shakespeare, however, would not, I think, be a fan of standing. All we have to do is look back at my earliest blogs about Measure for Measure. That play is all about someone pursuing justice whom federal courts would say had no standing to do so—at least initially. Isabella starts out the action by petitioning the authorities on her brother’s behalf. In other words, she steps into his shoes (since he is in jail at the moment) and argues to The Man charged with dispensing justice that her brother’s death sentence for “fornication” is a wee bit harsh. But no sister, no matter how righteous her cause and how right she is about the underlying legal issues, can just step into her brother’s shoes and pursue an appeal of his capital case (or any case) in which her brother had been the loser just because she “cared” about the issues and had some “relationship” to the actual party to the underlying case. And I feel certain that Shakespeare would have seen this as a crock.
Spare him, spare him!
He's not prepared for death. Even for our kitchens
We kill the fowl of season: shall we serve heaven
With less respect than we do minister
To our gross selves? Good, good my lord, bethink you;
Who is it that hath died for this offence?
There's many have committed it.
We shall have to wait and see if the SCOTUS thinks standing, in the DOMA/Prop 8 cases, is a crock or not.

Friday, January 25, 2013

Spinach, Soccer, Shakespeare, and Statutory Interpretation

Looking at the list that comprises this post’s title, you might feel inclined to burst into song: “One of these things is not like the other. One of these things just doesn’t belong. . . .” But let me explain—starting with the easy ones. Spinach, soccer, and Shakespeare, aside from starting with the letter “s,” are all things that are perceived as being good for a person—in spite of, or because of, their being a tad difficult. Therefore, parents routinely feel obliged to foist them upon their children. But even when these parental efforts produce a positive response in the kiddos, such that they actually like the spinach, enjoy playing soccer, or get into iambic pentameter, the efforts don’t seem to produce life-long passions in most. Some kids never recover from the mandatory mouthfuls of mushy spinach; not enough soccer-playing youths turn into adult soccer enthusiasts to keep many professional organizations afloat in this country; and most kids who enjoy Shakespeare don’t become adults who make a habit of seeking out productions of the Bard’s work. And that is a shame.
As for statutory construction, it is something that is also difficult, most would agree. (Mostly because much legislative drafting is a horror show of dry obfuscation.) And although most would probably not agree, I suggest that the practice of construing statutes is good for a person. It makes those who are or would be lawyers see the importance of word choice, of attention to detail, of grammatical structure, of context, and of appreciating the fecundity of the English language.
You, astute reader, even if you agree with the statements articulated in the above paragraph, recognize that I did not suggest that statutory interpretation is an activity to which parents generally feel compelled to expose their offspring. Putting aside that one might be able to find some Asian households were such a recreation is part of the Saturday routine, I will admit: I have never heard of parents who believe that the difficult, yet salutary, effects of statutory interpretation are such that their children should be introduced to it at a young age. And that is a shame.
Just as I have had great fun forcing my daughter to memorize Shakespearean sonnets and soliloquies, perhaps I should try sitting her down and introducing her to the joys of undertaking a close reading of a few of the myriad rules and regulations that inform or existence mostly without us even thinking about them—and certainly without us reading the rules’ actual texts. For instance, she might enjoy learning that, under Texas law, she is currently “under a legal disability” per Texas Civil Practices & Remedies Code § 16.001(a), which prevents her from doing all sorts of things that she might be itching to do, like enter into a contract to buy a lifetime supply of iTunes. And this “disability” of hers arises from her being “younger than 18 years of age,” and this “disability” cannot be cured “regardless of whether [she] is married” at some shockingly young age like they used to do in the olden days. Id. § 16.001(a)(1). And even once she (or anyone) turns 18, if she proves to be of “unsound mind,” she will still be considered “legally disabled.” Id. § 16.001(a)(2). And to know what the state of Texas means by the term “unsound mind,” we would have to look to yet another statutory provision and a whole bunch of judicial opinions interpreting that concept so as to discern useful patterns. What fun! I can’t wait to get started.
On second thought, perhaps I’ll just stick with trying to convince her to eat green things, run around outside, and memorize bits of Shakespeare like this one about Cleopatra’s barge to which she has been oddly resistant, despite my sense that she has more than a few things in common with that beautiful queen:
The barge she sat in, like a burnish’d throne, 
Burn’d on the water; the poop was beaten gold, 
Purple the sails, and so perfumed, that        
The winds were love-sick with them, the oars were silver, 
Which to the tune of flutes kept stroke, and made 
The water which they beat to follow faster, 
As amorous of their strokes. For her own person, 
It beggar’d all description; she did lie        
In her pavilion,—cloth-of-gold of tissue,— 
O’er-picturing that Venus where we see 
The fancy outwork nature; on each side her 
Stood pretty-dimpled boys, like smiling Cupids, 
With divers-colour’d fans, whose wind did seem        
To glow the delicate cheeks which they did cool, 
And what they undid did.
Antony and Cleopatra, II.2.

Tuesday, January 22, 2013

The Play’s the Things, Part 4

So sad. Work keeps interfering with my desire to ruminate about how Shakespeare’s plays-within-plays provide useful insights about the relationship between work and the rest of our lives. This interference is both frustrating and patently comical. (I mean, how dare the work for which I am paid interfere with the work I wish to do to keep myself alert enough to continue to be enthused about “real work”?) But I at least want to express my gratitude to the anonymous person who left the encouraging comment on my last post. Just as I am grateful to anyone who bothers to read these musings and occasionally chime in, I really appreciated the suggestion that this blawg is not just a big waste of time. It can be rendered meaningful when it sparks some connection across the void. Hooray!

Now, to wrap up the series about plays-within-plays: I have been meaning to turn to Hamlet, which is, after all, the source for the line “the play’s the thing.” (See the end of the very long Act II.2.) Hamlet includes a rather famous play-within-the-play. We do not see a full-blown rehearsal of this internal play, as we do in Midsummer. But we see how the script is crafted and specifically tailored to provoke the precise audience that Hamlet has in mind. That is, the play shows how art or artifice can be put to work to further a real-life cause. The “work” that the internal play does is help solve a crime, illuminate a mystery. Indeed, Hamlet dubs the internal play “The Mouse-trap,” because it is designed “to catch the conscience of the king.” More precisely, the internal play is modified to depict the murder of Hamlet Sr. as that deed was previously described to Prince Hamlet by the ghost of the late king. Since Hamlet, Jr. has been to a university and internalized some reasonable advice about the value of approaching things like ghosts with a healthy bit of skepticism, he does not want to accept the ghost’s narrative at face value. He wants to be sure that his icky uncle, now also his step-father, really is the murderer. Making such an accusation publicly with nothing but the “word” of a sketchy apparition would likely make Hamlet, Jr. persona non grata around the court. Moreover, such an accusation would also accelerate the likelihood of Hamlet’s joining his father in “the undiscovered country” in short order. The play-within-the-play, which Hamlet puts together along with a group of traveling players, gives him the verification he needs. It proves who the guilty party is—beyond a reasonable doubt. In short, the play-within-a-play works such that art imitates life to expose actual facts otherwise shrouded in the past.
The internal play also suggests something metaphoric about how creative strategies can be employed productively at work.
In terms of what the play within Hamlet can teach lawyers about better ways to approach their work, here are a few thoughts:
·         Don’t take everything clients say about the facts underlying their legal difficulties at face value; seek external verification. Trust no one—especially self-serving ghosts bearing grudges.

·         If you can, avoid confronting bad actors directly with bald accusations regarding their past malfeasance. Instead, see if you can create conditions such that they are essentially compelled—perhaps under oath during a deposition—to telegraph their guilt so that all the world can plainly see it.

·         Whenever you are preparing legal documents, think first and foremost about your intended audience and how best to make the abstract accessible to them such that the reader will be drawn into an otherwise dry tale. Find a way to make your particular reader care about your message by showing you know how to see things through their eyes.

·         When communicating with an adverse party, communicate so as to make them jump out of their skin—but only because, very soberly, you have illustrated how the law is such that they are on the wrong side and will, therefore, ultimately lose if they persist in thinking they can keep up appearances.
But if your tactics succeed, unlike Hamlet, don’t indulge in an obnoxious victory dance. (See Act III.3.) When the internal play prompts Hamlet’s uncle, King Claudius, to freak out, call for light, and abruptly end the play, Hamlet has his answer. But he responses by jumping up and singing like a madman:

Why, let the stricken deer go weep,
The hart ungalled play;
For some must watch, while some must sleep:
So runs the world away.

Then he brags:

Would not this, sir, and a forest of feathers-- if
the rest of my fortunes turn Turk with me--with two
Provincial roses on my razed shoes, get me a
fellowship in a cry of players, sir?

Not exactly the portrait of professionalism. . . .  And maybe that is why, shortly thereafter, Hamlet spends the rest of his days dodging a series of assassination attempts, the last of which succeeds (while also bringing down everyone else in the Danish court). So, work hard, play hard—but not too hard. And when your hard work integrating play into your work pays off such that you score big at work, don’t celebrate in such a way as to suggest you can’t see any difference whatsoever between play and work.  

Tuesday, January 15, 2013

The Play’s the Things, Part 3

After reading my last post, my super-smart husband said, “Isn’t it interesting how the fake actor’s Prologue in Midsummer is similar to the real actor’s (Puck’s) Epilogue?” That is such an interesting observation that I decided it merited further inspection. Lo and behold, if you put the speeches side by side, the similarity is striking and the differences amusing. So I thought I’d share. The left column below is the speech delivered by “Peter Quince” before the mechanicals perform their comically tragic play-within-the-play to the newly married members of the court. On the right is the speech “Puck” delivers directly to the audience watching Shakespeare’s play.

Peter Quince’s Prologue
Puck’s Epilogue
If we offend, it is with our good will.
That you should think, we come not to offend,
But with good will. To show our simple skill,
That is the true beginning of our end.
If we shadows have offended,
Think but this, and all is mended,
That you have but slumber'd here
While these visions did appear.
And this weak and idle theme,
No more yielding but a dream,
Consider then we come but in despite.
We do not come as minding to contest you,
Our true intent is. All for your delight
We are not here. That you should here repent you,
Gentles, do not reprehend:
if you pardon, we will mend:
And, as I am an honest Puck,
If we have unearned luck
Now to 'scape the serpent's tongue,
We will make amends ere long;
Else the Puck a liar call;
The actors are at hand and by their show
You shall know all that you are like to know.
So, good night unto you all.
Give me your hands, if we be friends,
And Robin shall restore amends.

How are they similar? First, each speaker begins with a preemptive apology in case his fellows (1) end up offending or (2) have offended over the course of the evening. Each explains that, since no offense was intended, the audience should just (1) accept the players’ good intentions or (2) imagine that they, the audience members, have all been dreaming this whole time. Next, both speakers entreat their audiences to be forgiving, promising that such generosity will be repaid. Finally, both speakers remind the audience that (1) a play is about to begin or (2) a play is about to end. Noting this pattern suddenly makes me see profound significance in Peter Quince’s line “That is the true beginning of our end”—the beginning and the end are one and the same, all the world’s a stage, life and work and play are distinct and yet their boundaries are often difficult to discern, and so forth.
Another amusing factoid: Puck’s Epilogue, where he breaks the “fourth wall,” and talks to the “real” audience asking them to release him from his work, comes shortly after the audience in the play-within-the-play has politely declined the offer of an epilogue. At the end of the mechanicals’ play, Bottom as “Pyramus,” along with Flute as “Thisby,” are lying in a heap on the stage, dead.  Bottom, not wanting his moment in the spotlight to end, breaks character, jumps up, and offers “Will it please you to see the epilogue, or to hear a Bergomask dance between two of our company?” Theseus responds urgently, saying:
No epilogue, I pray you; for your play needs no excuse.
Never excuse; for when the players are all
dead, there needs none to be blamed. Marry, if he
that writ it had played Pyramus and hanged himself
in Thisbe's garter, it would have been a fine
tragedy: and so it is, truly; and very notably
discharged. But come, your Bergomask: let your
epilogue alone.

Thus, right after the internal audience rejects the notion of an epilogue, the “real” audience is subjected to an epilogue.
About now you may again be scratching your chin, wondering, “How is she going to make this little rumination seem relevant to law practice?”
Well, perhaps, on this occasion, the failure to make a sound connection needs no excuse, for none would be accepted. Instead, we can pretend that this was nothing but a dream that ends, nevertheless, with raucous applause.

Saturday, January 12, 2013

The Play’s the Things, Part 2

 With The Taming of the Shrew, the play-within-the-play is the main event. And as I explained in my last post, the frame that introduces the internal play is never closed. I think, however, that my theory about why that is the case is more appealing than just saying “Will forgot to take care of business.” I suggest that the way the material inside the frame consumes the thing itself operates as a metaphor for losing oneself, not just in a fantasy or a work of art, but in work. Work is certainly a major part of real life, and some who envy the French would probably say that it occupies too much of all our lives here in the States. The play-within-a-play device in Shrew can be interpreted as showing what happens when work becomes synonymous with or indistinguishable from one’s life.
With A Midsummer Night’s Dream, we have a true play-within-a-play situation. But more than a mere device, the performance of the internal play is the comedic climax of the whole event. If you have never seen a good production of Midsummer—or any production—you may have a hard time accepting that the scene where the mechanicals put on their little homespun production of “Pyramus and Thisby” to celebrate the royal wedding between Theseus and Hippolyta is truly hysterical. I don’t mean crack-a-smile funny; I mean writhe-in-pain-while-crazy-sounds-come-out-of-your-throat-and-nose funny. In fact, the first time I saw a production of Midsummer on stage (at a place called Lon Morris Junior College in the Texas piney woods) I cackled so hard that, after the show, some of the actors (including one of my best friends) thought I had lost it. But, quite truthfully, their performances were so wonderfully sincere in their bumbling that I was in the throes of the kind of laughter that can induce various embarrassing bodily malfunctions.
Part of what makes the “production” of the Midsummer play-with-the-play so hysterical (when done well) is that the audience has witnessed the mechanicals in earlier scenes working to pull the piece together. These people are not professionals; they all have day jobs—as a weaver, a bellows-mender, tailor, etc. They do, supposedly have a director, Peter Quince, who has prepared a basic draft for the proceedings. But from the outset, he has trouble keeping his team focused. For instance, while Quince tries to give the most basic instructions, Bottom the Weaver interprets every five seconds. It is not clear if Bottom is just bubbling over with enthusiasm, desperate to call attention to himself, incapable of subordination, desirous of clarification, or all of the above:
Is all our company here?

You were best to call them generally, man by man,
according to the script.

Here is the scroll of every man's name, which is
thought fit, through all Athens, to play in our
interlude before the duke and the duchess, on his
wedding-day at night.

First, good Peter Quince, say what the play treats
on, then read the names of the actors, and so grow
to a point.

Marry, our play is, The most lamentable comedy, and
most cruel death of Pyramus and Thisby.

A very good piece of work, I assure you, and a
merry. Now, good Peter Quince, call forth your
actors by the scroll. Masters, spread yourselves.

Answer as I call you. Nick Bottom, the weaver.

Ready. Name what part I am for, and proceed.

You, Nick Bottom, are set down for Pyramus.

What is Pyramus? a lover, or a tyrant?

A lover, that kills himself most gallant for love.

That will ask some tears in the true performing of
it: if I do it, let the audience look to their
eyes; I will move storms, I will condole in some
measure. . . .

Bottom then goes on and on about all the great techniques he will employ to wow the audience—and he hasn’t even read the script yet.

And while he may be the biggest, Bottom isn’t Quince’s only headache. Flute is distraught about having to play a girl since he has “a beard coming.” Snug, cast as the lion, is worried about his ability to learn his lines in time because he is “slow of study” (till he is reassured that he can “do it extempore, for it is nothing but roaring.”)  After a very trying first rehearsal in which little is accomplished, the team agrees to go their separate ways and reconvene in the woods later that night for a full rehearsal. But before Quince can get things started at the second meeting, Bottom is complaining about things in the script “that will never please” and that will “fright the ladies.” He takes it upon himself to add a Prologue wherein he’ll explain that the swords are not real swords, the lion is not a real lion, and the lovers Pyramus and Thisby don’t really die. When the players finally try a run-through, no one has memorized their cues, so they all miss their entrances. And Flute as “Thisby” is so anxious to finish that he speaks “all [his] lines at once.” The rehearsal is soon completely upended when the rakish fairy, Puck, “translates” Bottom into a literal embodiment of what he is (an ass). It is no wonder, perhaps, that when the mechanicals are called upon to present the fruits of their labor the next night after the wedding, they stand on shaky ground. Such poor preparation and so many substantive compromises, supplements, and deletions guarantee the final work product will be a bit of a mess.

Sound at all familiar?
Trying to put on plays “by committee” is not optimal. One needs a benevolent, yet strong, dictator at the helm. This is often true with legal matters, too. Lawyering so often involves team work. But because many lawyers are also known for their, uh, robust opinions, working as a team can be quite challenging. Moreover, learning how to operate as part of a professional team isn’t part of most legal training, that’s for sure. When it comes to writing something—like a legal brief—working by committee can be particularly challenging, frustrating, exasperating, inefficient.
What are the secrets of a successful work collaboration? At the very least, you need:
  • a clear division of labor;
  • each person assigned to a particular task to be capable of doing that job in the time allowed;
  • each person to actually do his or her job in the time allowed; and
  • someone ultimately in charge of The Big Picture or at least some process for working through conflicts.
In other words, when working as a team, everyone needs to know who is handling what and have the ability to get their job done; someone has to have authority to make sure all of the disparate efforts cohere in the end; and everyone on the team has to actually be worthy of the team’s trust. Getting all those stars to align can take some serious “theater magic.” But it does happen. And when it does, the result can be work product that is far superior to what even the most talented member of the team could have accomplished alone. But often, teams are much better at slowing things down than getting things down—or that which they create can seem like multi-headed hydras with no central nervous system.
Next time I am struggling with some team project (or team member) that is just not very satisfying, instead of looking for comfort in old episodes of The Office, I think I’ll try to picture my nemeses as characters in the terrifically funny final play in Act V, scene 1 of Midsummer. It begins on a wonderfully awful note with Peter Quince delivering not one, but two “Prologues” to try to justify all that follows:
If we offend, it is with our good will.
That you should think, we come not to offend,
But with good will. To show our simple skill,
That is the true beginning of our end.
Consider then we come but in despite.
We do not come as minding to contest you,
Our true intent is. All for your delight
We are not here. That you should here repent you,
The actors are at hand and by their show
You shall know all that you are like to know.

Enter Pyramus and Thisby, Wall, Moonshine, and Lion

Gentles, perchance you wonder at this show;
But wonder on, till truth make all things plain.
This man is Pyramus, if you would know;
This beauteous lady Thisby is certain.
This man, with lime and rough-cast, doth present
Wall, that vile Wall which did these lovers sunder;
And through Wall's chink, poor souls, they are content
To whisper. At the which let no man wonder.
This man, with lanthorn, dog, and bush of thorn,
Presenteth Moonshine; for, if you will know,
By moonshine did these lovers think no scorn
To meet at Ninus' tomb, there, there to woo.
This grisly beast, which Lion hight by name,
The trusty Thisby, coming first by night,
Did scare away, or rather did affright;
And, as she fled, her mantle she did fall,
Which Lion vile with bloody mouth did stain.
Anon comes Pyramus, sweet youth and tall,
And finds his trusty Thisby's mantle slain:
Whereat, with blade, with bloody blameful blade,
He bravely broach'd is boiling bloody breast;
And Thisby, tarrying in mulberry shade,
His dagger drew, and died. For all the rest,
Let Lion, Moonshine, Wall, and lovers twain
At large discourse, while here they do remain.

Monday, January 7, 2013

The Play’s the Thing

As the “happy few” reading this blawg already know, several of Shakespeare’s plays feature plays-within-plays—The Taming of the Shrew, Midsummer, Hamlet.
I have been thinking that one could see this recurrent motif as Shakespeare's way of depicting people at work. Whether Shakespeare was the guy from Stratford or Edward de Vere or the village miscreant, the man’s principal work experience as an adult was in theater. Therefore, showing characters in the act of preparing plays was a way to dramatize lessons about the role of work in human lives.
At one extreme is Shrew where we see an example of work that becomes all-consuming, swallowing up underlying reality itself. Most people don’t realize this because the first two prefatory scenes are often cut from productions. But Shrew actually begins before Act I, scene 1, outside of a bar (aka an “alehouse”). A “Hostess” rails against a pitiful drunkard named “Christopher Sly,” who, presumably, in an advanced state of inebriation, has broken some glasses and has refused to pay for them. As a result, the Hostess threatens to call the cops; Sly merely gives her the finger and then promptly falls asleep on the curb. Along comes a “Lord” with his retinue, seeking some respite from his travels in the alehouse. But he spies Master Sly passed out on the street. The nobleman first marvels at Sly’s deplorable state; his disgust then turns to pity. He arranges to have one of his servants carry Sly off to bed down at the Lord’s own estate. Then, suddenly, some players appear on the scene, eager to perform for his Lordship. The players bring back happy memories of days gone by; so the Lord wants them to put on a big show—but not just for his benefit. He decides that the players shall exhibit their trade in a way that will also have a potentially transformative effect on the drunken Sly. The next morning, when Sly wakes up in the Lord’s house with a throbbing hangover, all of the Lord’s servants start treating Sly as if he himself were the Lord of the manor. Meanwhile, one of the Lord’s pages has dressed up in “women’s garb” and pretends to be the Lady of the House. She/he chides Sly-qua-Lord for wasting his life away. But the players arrive and Sly and “his lady” decide to cease arguing about what really has been going on and instead seize the opportunity to sit back and watch the itinerant players:
Well, well see't. Come, madam wife, sit by my side
and let the world slip: we shall ne'er be younger.

Then the play begins—the play everyone knows involving the feisty Katharina, her demure, long-suffering kid sister Bianca, their rich father Baptista, and Petruchio who comes “to wive it wealthily in Padua;/If wealthily, then happily in Padua.”
That play goes on for five more Acts until the shrew Kate is seemingly tamed.
But what about Master Sly? And the page in drag pretending to be his wife? And the Lord who set the whole charade in motion to try to work some magic upon the lost soul Christopher Sly? Shakespeare seems to have forgotten all about the frame that he took such pains to set up in the two opening scenes.
Was it just some ghastly accident? The product of shoddy editing?
Better, I think, to assume brilliant intent.
Perhaps Shakespeare intentionally failed to tie up the loose ends because the message is about how the play can become more real, more vital than life itself. And seeing the play as a metaphor for work, the message is about the danger of losing all sense of reality when work becomes more meaningful than life itself.
Lawyers, the good ones, know that this can happen with legal work. It can become all-consuming, more vivid than the rest of life. And thus a legal career can tempt people to lose all sense of balance such that they, like Petruchio, think they can control, with mighty roars, seductive charisma, and searing intellect, any and all persons operating within their sphere in the name of managing “legal matters.”
Next time I’ll take a look at how the plays-within-the-play in Midsummer and Hamlet depict rather different perspectives on work. Just for grins.

Saturday, January 5, 2013


I received yet more proof the other day that I do not live in the current century. A friend drafted an amusing blog post that hinged on repetition of a certain catchphrase. I was struck by the phrase, but didn’t recognize it. Turns out, according to Wikipedia, the expression became part of the American popular vernacular, thanks to a successful SNL sketch involving Christopher Walken, Will Ferrell, and a metal band: “More cowbell!”
Maybe I am not conversant with catchphrases with which the rest of the culture is intimately acquainted. But as Will Rogers liked to say, “Everyone’s ignorant—just about different subjects.”
So, whenever one is tempted to think that Shakespeare has become irrelevant to our time, it is worth remembering the numerous “catchphrases” that he injected into the English language. Many of them could readily be employed to help lawyers describe all kinds of professional situations. Here are some examples:
  • “All that glitters is not gold” (Merchant of Venice, II.7): A good warning for clients considering suspiciously promising investment opportunities
  • “Hoist with his own petard” (Hamlet, III.4): An apt way to describe, without seeming too smug, what happened when a lawyer failed to pull off a dilatory maneuver using one of those lovely jurisdictional doctrines like standing, ripeness, or mootness
  •  “A rose by any other name would smell as sweet” (R & J, II.2): A means to console a client after delivering the news that the name desired for a new product line or business has already been registered by some other entity
  • “It’s Greek to me” (Julius Caesar, I.2): A gentle technique to drive home to a junior colleague that the memo the lawyer has prepared is too laden with legalese to make sense to anyone outside of the academy
  • “Neither rhyme nor reason” (Comedy of Errors, II.2): A colorful way to describe a long-anticipated ruling from a judge that, contrary to expectation, leaves your side badly bruised and beaten
  • “Laugh yourself into stitches” (Twelfth Night, III.2): A worthy reaction to a particularly unpleasant opposing counsel whom you will never be tempted to refer any matter
  • “To thine ownself be true” (Hamlet, I.3): A useful reminder about the need to stay on the right side of the rules governing professional responsibility lest one’s law license be placed in jeopardy
The possibilities for more cowbell are infinite! But for now, I must get back to grading papers.

Wednesday, January 2, 2013

They’ll All Kow-Tow

In my house, the new year began with a strange juxtaposition. I resumed reviewing the mound of student legal research memos and briefs that came my way at the end of the semester. At the same time, my daughter, who felt a bit under-the-weather (or who at least wanted to spend a full day in her PJs), hunkered down to watch old musicals. Among the line-up was Cole Porter’s Kiss Me Kate. One of the best ditties from that show involves advice, offered up by a pair of mobsters, that is apropos to this blog: “Brush Up Your Shakespeare.” Here is an excerpt:
The girls today in society go for classical poetry,
So to win their hearts one must quote with ease
Aeschylus and Euripides.
One must know Homer, and believe me, Beau,
Sophocles, also Sappho-ho.
Unless you know Shelley and Keats and Pope,
Dainty Debbies will call you a dope.

But the poet of them all,
Who will start 'em simply ravin',
Is the poet people call
The Bard of Stratford on Avon.

Brush up your Shakespeare.
Start quoting him now.
Brush up your Shakespeare.
And the women you will wow.

Just declaim a few lines from Othella,
And they'll think you're a hell of a fella.
If your blonde won't respond when you flatter 'er,
Tell her what Tony told Cleopatterer.

Great stuff. You should check it out. And I hope your new year is off to a great start. Meanwhile, I intend to resume my efforts here with full-force once said mound of memos has been conquered.