Tuesday, April 30, 2013

Sit Right Down and Write Myself a Letter

Several of Shakespeare’s plays use epistolary events as central plot devices. For instance, a letter sent to the banished Romeo, as he languishes in Mantua, misinforms him that his Juliet is dead, while a slower-moving letter from Friar Lawrence, reporting the truth, fails to reach him. In two of Will’s best comedies—Much Ado About Nothing and As You Like It—letters play similar, though inverse roles. In Much Ado, a group of characters write fake letters from Beatrice that they leave strewn about in a courtyard for Benedick to find—all to try to trick the latter into thinking that the former is secretly in love with him (which she is, though she herself does not yet recognize this fact). In As You Like It, Orlando leaves letters full of bad love poetry lying around Arden Forest for Rosalind to find, which prompts Rosalind, disguised as a boy, to give Orlando some badly needed writing lessons so that he will do a better job of courting her (although she already knows that she is in love with him despite his inability to match her in a game of wits).

Letters, as plot devices, can simply convey information that is itself what matters; or letters can be elevated or intimate acts of expression that have potency because of the style as much as the content.

Literary correspondence, sadly, is just not something that people—even most writers—engage in much anymore. Sure, we email, text, and tweet all day long. But that hardly counts. These are not the kind of missives that anyone will want to gather later in an archive for future fans or historians to pour over.

Lawyers still send plenty of letters—mostly email—each and every day. And occasionally they still get to draft letters where the style as much as the content can stir emotions, trigger actions, spark longings. I am thinking primarily of the “nastygram” that has particular punch primarily because it comes to a recipient on a lawyer’s letterhead. When a lawyer writes such a letter to urge some bad actor to cease doing something that is hurting the lawyer’s client or to start doing something to which the client has a legal right to expect replete with supporting facts and legal authorities— Well, those are happy days. At least when the letter hits the right note and sounds on non-deaf ears. Alas, some recipients of such letters can’t be shamed into submission. But most people really don’t like the idea that they have been caught operating “ultra vires.” And that is comforting—that lawyers’ letters, like letters in a Shakespeare play—can still induce people to spring into action. It is also sobering.

Friday, April 26, 2013

Memory Games

 Some word there was …
That murder'd me: I would forget it fain;
But, O, it presses to my memory,
Like damned guilty deeds to sinners’ minds

“Juliet,” Romeo and Juliet (III.2)

In celebrating Shakespeare’s birthday earlier this week, I did not follow the advice I posted on my own blog. Instead, I let my ten-year-old call the shots (as if that is something novel). She decided to honor the Bard’s day by performing a parlor trick. She didn’t want to venture into terra nova. She just wanted to see how many Shakespeare pieces she could recite from memory with minimal prompting. The final count was 11:

·         Theseus’s “the lunatic, the lover, and the poet are of imagination all compact” speech from the end of Midsummer;
·         Sonnet 18 (“Shall I compare thee to a summer’s day?”);
·         Portia’s “quality of mercy” courtroom argument from Merchant in Venice;
·         Hamlet’s “To be or not to be” soliloquy;
·         Sonnet 116 (“Let me not to the marriage of true minds”);
·         The caldron scene from Macbeth (“Double, double, toil and trouble”);
·         Marc Antony’s speech at Caesar’s funeral ;
·         The “Blow, blow, thou winter wind” tune song in the Arden Forest in As You Like It;
·         John of Gaunt’s “This earth, this realm, this England” monologue from Richard II;
·         The Clown’s “hey, ho, the wind and the rain” song from Twelfth Night; and
·         Jaques’s seven stages of man speech from As You Like It.

But I’m not proud…. Well, actually, what I am not proud of is that she insists on rattling off each of these brilliant bits as if they doggerel designed to be mere tongue-twisters. She has no interest in honing her delivery or massaging the subtext. She barely wants to know what the lines mean—except to the extent that she enjoys the occasional comic gloss I offer up, which sometimes become asides she inserts as she flies through the real poetry.

This game got me to thinking about the role of memorization and recitation in education. The practice has certainly fallen out of favor in this country. Even when I was a kid, we didn’t do much of it—although I do remember having to memorize and recite “Friends, Romans, countrymen” and a speech from R & J in junior high. Even more, I remember with mortification that, because I fancied myself a future famous actress, I was the only one in the class who took it upon herself to offer up sophomorically dramatic orations, which earned me the privilege of being the only one asked to read things out loud in English class, which in turn surely earned me the undying affection of my seventh-grade peers.

My sincere hope is that having all of this Shakespeare rattling around in my daughter’s head will one day do her some good. Inoculate her somehow against the ugly and prosaic. Fortify her like brussel sprouts doused in butter.

Lawyers do not have to memorize things in the ordinary course of doing business—which comes as a shock to many law students. But except for the purposes of law-school finals and those tedious bar exams, lawyering does not involve loading up one’s brain with a bunch of law and then setting forth to dispense advice. The law, which is forever in flux, must always be researched whenever an issue arises. Indeed, lawyers who purport to offer up answers to complex legal issues off the tops of their well-coifed heads tend to be viewed askance. Sure, lawyers memorize stuff when they are going to be in court—for instance, opening statements and closings for trial, a one-paragraph opening and key cases and record cites for appellate arguments. But, mostly, lawyers are rarely in active performance mode; but when they are, they need to know their stuff so well that they appear to be winging it—that is, they do not want to be seen clinging to a prepared script. Therefore, what lawyers have “memorized” were not absorbed into the brain the way one learns one of Hamlet’s soliloquies—through rote drilling. Lawyers, for instance, remember specific cases because they have read and digested those cases so thoroughly and determined how they affect a particular client’s cause that they just know the cases inside and out. Or they know that a particular statute or case established a key rule affecting the rights or responsibilities of clients that they might represent in a whole slew of similar matters in a particular niche area. But lawyers do not go about memorizing every decision announced by the Supreme Court to be ready just in case a specific issue were to come up in their line of work. Sure, they might read all those decisions (very rare); or they might read every SCOTUS decision that happens to be released in their doctrinal area in a given year—like antitrust, criminal law, IP, etc. (not as rare). But they still don’t routinely memorize cases, holdings, and key language waiting for the day when they can recite a passage to a client in the course of providing legal services. That would be rather a waste of time. And annoying. And reliance on such an approach might even amount to malpractice.

For my daughter’s sake, I hope the act of “summoning up the remembrance of things” built by Shakespeare is not analogous. See Sonnet 30. I devoutly believe that it is not. And this belief—that Shakespeare is worth memorizing whereas the law is not—if valid, probably tells us something profound about differences between the language games played in various spheres of human endeavor. Let’s think on that.

Monday, April 22, 2013

Happy Anni-birth-earth Day

There's rosemary, that's for remembrance; pray,
love, remember: and there is pansies. That's for thoughts.

Ophelia, Hamlet (IV.5)

Today (April 22) is Earth Day and the birthday of one of the most vibrant human beings I’ve ever known; she is no longer palpably gracing this earth, but her spirit rages on, still shouting eloquently to all fortunate enough to have known her, urging us to work for something bigger and grander than our own petty personal agendas while seeking more than a bit of joy in the process.
Tomorrow (April 23) is Shakespeare’s birthday and the first anniversary of this blawg.
So much to celebrate—the planet, remarkable people, social justice, literary genius, redemption, renewal, responsibility—so little time.
But by a mere fortuity, I happened to receive a gift rather remarkably suitable for the day. By listening to the radio at an odd hour, I was able to catch a portion of a brief interview with Laura Bates, who has just published Shakespeare Saved My Life: Ten Years in Solitary with the Bard. The book is a memoir about the transformative effects of this literature professor’s decision to teach Shakespeare to inmates in a super-max prison facility in Indiana. Can’t wait to read it and be inspired. Meanwhile, Professor Bates suggests that “A wonderful thing to do on Shakespeare's birthday, I think, would be to take a look at any passage from Shakespeare from any play and maybe read it with someone who has not been introduced to Shakespeare before. Your own children, possibly a youngster in the family, or if you have access to prison, of course, to go in and maybe introduce it to someone who hasn't read it there, or maybe just a student, just to find some way that Shakespeare can relate to each of us, really, today.” I concur.
Professor Bates’ story reminded me of a fantastic experience I had several years ago, meeting and seeing Rick Cluchey perform. Cluchey is the founder of the San Quentin Drama Workshop, which was largely dedicated to producing plays by Samuel Beckett. Cluchey founded the group while he himself was in prison. He and his company did such an impressive job that Beckett eventually saw Cluchey perform and came to see him as a principal interpreter of his work. Here is an article that discusses some of that fascinating history. And, apparently, Cluchey is still touring the world, doing his bit to keep Beckett’s work alive. See, e.g., this recent announcement from his hometown paper.  
Perhaps the best way to honor the compendium of remarkable things I am celebrating these days is to remember that those who have been deemed the “worst of the worst” can recognize the “best of the best;” and in that possibility is much reason to want to see that the Earth and its most verbose, violent, and tender species finds a way to prevail after all. Although Hamlet didn’t quite see it that way, remembering is one way to see that “[t]he native hue of resolution” is not “sicklied o'er with the pale cast of thought;” such that “enterprises of great pitch and moment . . . turn awry,/ And lose the name of action.” (Hamlet, III.1). Remembering is a form of action.

Saturday, April 20, 2013

Sonnet Talk

April is National Poetry Month. The perfect way to celebrate is, perhaps, to reflect a bit upon sonnets. Thanks to my pal, Old Dry Eyes (ODE),[1] I have two initial thoughts to share on the subject. The first is inspired by one of ODE’s comments on this blog in which he quotes a sonnet written by another blogger; that sonnet is about sonnets themselves—that is, it is a meta-sonnet. As such, it is part of a long tradition of poetic writing reflecting upon the power of writing itself—a practice of which Shakespeare himself was fond. See, e.g., Sonnet 19 (“Yet, do thy worst, old Time: despite thy wrong,/ My love shall in my verse ever live young.”) And this blawg is itself often comprised of writing about writing.

Anyway, the contemporary sonnet to which ODE calls our attention is a lovely tribute to a form “as elegant as jasmine on the wind” that “centuries have dulled” however—probably because we lack the ability to be true to the strict form while infusing the rigid structure with sufficiently authentic feeling. Sonnets are a bit arcane because, well, they sound so Shakespearean to most modern ears and thus out of joint with the times (to use a timeless Shakespearean turn of phrase). This dullness is what happens to legal writing when law students or new lawyers try to imitate the purple legalisms that characterize many judicial opinions from ye olde days that are collected in law school casebooks or when lawyers copy old form documents that begin with empty phrases like “COMES NOW Plaintiff, by and through counsel, and hereby moves this Honorable Court to enter an Order that Defendant [do “x”] and in support thereof respectfully shows the following . . . .” Failing to breathe life into a conventional structure just gives you musty, creaky prose.

Second, ODE has commented more recently about a sonnet-related episode in a fantastic novel, Stoner by John Williams. This novel is about a farm boy who eventually becomes a professor at a modest, unadventurous Midwestern university. You really, really must read it. The hero’s modestly heroic Sisyphean struggle against one existential crisis after another is told with such restraint and elegance that reading it is like death by a thousand tiny cuts made with a shimmering diamond stylus. The novel itself fell into obscurity—a tragedy almost on par with that of the book’s hero. (It was out of print for decades and only resurrected in 2006 by the New York Review of Books – Classics.) Early in Stoner, when the hero is just awakening to the life of the mind, he is confronted in class by a professor who demands that he explain Shakespeare’s Sonnet 73. Now ODE wants to know what I might have to say about that ditty, which is, I must say, one of my favorites!!! It is a sonnet to which a young person (like Stoner in that scene) might have real trouble relating. The speaker in Sonnet 73 is a person in the autumn of his life reflecting on how he might look to someone in the peak of youth where the former is consumed by this youth precisely because youth is what he, the speaker, has lost; the speaker explains that falling in love with someone who is literally young is a means to defy death a bit. In other words, Sonnet 73 is an excruciatingly thoughtful tribute to the very human impulse that, in its most simplistic expression, often involves an old guy impulsively buying a red sports car, dumping his wife of many years, and chasing after a cute young creature named Brandi:

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.

Shakespeare ends the sonnet with a couplet that strikes me as some serious wistful thinking; he hopes that the youth with which he, the old guy, is obsessed, will see his obsession in bigger existential terms and thus cherish all the more a love that, like life itself, is inherently ephemeral:

This thou perceivest, which makes thy love more strong,
To love that well which thou must leave ere long.

Who knows how the youth felt about all this? Well, those of us who have lived through both side of this common, yet decidedly profound, phenomenon might say that the youth in love with the old guy is also chasing after something: a shortcut—not to death—but to wisdom; thus all the signs of aging—the “yellow leaves” clinging to “bare ruin’d” boughs that “shake against the cold”—the youth sees through spring-colored glasses in a delusional way that benefits both the aged and the callow. At least for a time.

I am not sure how to connect Sonnet 73’s theme with the practice of law except to say that it amazes me how many older lawyers continue to thrive within the profession—and perhaps this is, in part, a function of how the profession demands that older lawyers continuously mentor fresh crops of baby lawyers. The most successful partnerships between old and young lawyers seem to be ones where both sides contribute different traits—for instance, an older lawyer’s experience, sense of restraint, strategic savvy on one hand and an younger lawyer’s energy, drive, and optimism on the other. Yes, people at two ends of a professional spectrum can team up in a way that “makes [their work] more strong” if the relationship is fueled by mutual respect. That hopeful promise is at the heart of Sonnet 73.

[1] Could it be sheer accident that this lover-of-literature has a pseudonym that produces a literary acronym?! I think not.

Tuesday, April 16, 2013

No Salique Law Sallies, Pretty Please

For we will hear, note[,] and believe in heart
That what you speak is in your conscience wash'd
As pure as sin with baptism.

King Henry, Henry V (I.2)

When most people hear the word “lawyer” they react in a way that ain’t pretty. In Shakespeare one finds plenty of suggestions that his perception of lawyers ‘tweren’t pretty either. I was recently reminded of a (potentially) hilarious example of the unpretty perception Shakespeare had of the law and lawyers and how that example provides an efficient lesson.

The passage of which I speak is from Henry V. After a rousing Prologue, the play’s main action begins with a whispered exchange between the Archbishop of Canterbury and a colleague about how, if a certain bill offered up in the House of Commons passes, they, as churchmen, stand to use a whole bunch of land and stuff. Now that the young, formerly profligate Prince Hal has just assumed the throne, these churchmen want to take advantage of unstable times to kill the bill.

Sure, these men have noticed Prince Hal’s remarkable transformation:

Never was such a sudden scholar made;
Never came reformation in a flood,
With such a heady currance, scouring faults
Nor never Hydra-headed wilfulness
So soon did lose his seat and all at once
As in this king.

Yet these churchmen believe that, in terms of the bill in question, the King is, at worst, indifferent and, at best, slightly inclined to their perspective. Therefore, they plan to press their cause—which involves inciting war against France—before the King hears from a French Ambassador who has just arrived at court.

What the young King wants from these churchmen—his learned counselors—is a quick lesson in “Salique” (or “Salic”) law. Specifically, the question presented is:

Why the law Salique that they have in France
Or should, or should not, bar us in our claim[?]

The “claim” to which King Henry refers is to certain lands that the French think they own. And the King is well aware that he is likely to meet great resistance if he asserts such a claim. Indeed, pursuing that claim shall likely “awake our sleeping sword of war.” Therefore, King Henry cautions his advisors not to “fashion, wrest, or bow [their] reading” of the law so as to make it seem more favorable to his claim. He wants the unvarnished truth. Human blood is, after all, on the line:

We charge you, in the name of God, take heed;
For never two such kingdoms did contend
             Without much fall of blood—

But, of course, just before this scene, Shakespeare had shown us how the churchmen who are about to explain the law to him have their own agenda. They want war with France! They want the Salique law—which supposedly applied to French territorial holdings in Germany during the early Middle Ages—to be construed so as justifying an invasion of French territory and thus diverting attention from the dreaded bill that would strip the Church of “the better half of [its] possession.” In short, these counselors are not interested in delivering an objective interpretation of legal text. And when the Archbishop of Canterbury launches into his exegesis of Salique law, the audience, unlike Henry V, knows that the King’s counselors are not pure vessels of Truth who will fairly represent The Law.

The speech Canterbury delivers is, however, designed to induce a kind of confidence—but not the kind that comes from sparking real understanding; it is a false or desperate confidence in another that comes from being overwhelmed by that person’s pedantry such that the client is willing to cede judgment to the counselor just to bring an end to the agony. Indeed, the explanation of Salique law that Canterbury offers up exemplifies lawyers at their most mind-numbingly offensive. You don’t have to read the whole speech to get the idea. But the full comic effect requires hearing someone deliver it out loud, starting in soothing tones at a moderate pace and gradually picking up steam until the delivery is as unintelligible as the substance is impenetrable:

Then hear me, gracious sovereign, and you peers,
That owe yourselves, your lives and services
             To this imperial throne. There is no bar
To make against your highness' claim to France
But this, which they produce from Pharamond,
             'In terram Salicam mulieres ne succedant:'
             'No woman shall succeed in Salique land:'
Which Salique land the French unjustly gloze
To be the realm of France, and Pharamond
             The founder of this law and female bar.
             Yet their own authors faithfully affirm
That the land Salique is in Germany,
Between the floods of Sala and of Elbe;
             Where Charles the Great, having subdued the Saxons,
             There left behind and settled certain French;
             Who, holding in disdain the German women
             For some dishonest manners of their life,
             Establish'd then this law; to wit, no female
             Should be inheritrix in Salique land:
             Which Salique, as I said, 'twixt Elbe and Sala,
             Is at this day in Germany call'd Meisen.
             Then doth it well appear that Salique law
             Was not devised for the realm of France:
             Nor did the French possess the Salique land
             Until four hundred one and twenty years
             After defunction of King Pharamond,
             Idly supposed the founder of this law;
             Who died within the year of our redemption
             Four hundred twenty-six; and Charles the Great
             Subdued the Saxons, and did seat the French
             Beyond the river Sala, in the year
             Eight hundred five. Besides, their writers say,
             King Pepin, which deposed Childeric,
             Did, as heir general, being descended
             Of Blithild, which was daughter to King Clothair,
             Make claim and title to the crown of France.
             Hugh Capet also, who usurped the crown
             Of Charles the duke of Lorraine, sole heir male
             Of the true line and stock of Charles the Great,
             To find his title with some shows of truth,
             'Through, in pure truth, it was corrupt and naught,
             Convey'd himself as heir to the Lady Lingare,
             Daughter to Charlemain, who was the son
             To Lewis the emperor, and Lewis the son
             Of Charles the Great. Also King Lewis the Tenth,
             Who was sole heir to the usurper Capet,
             Could not keep quiet in his conscience,
             Wearing the crown of France, till satisfied
             That fair Queen Isabel, his grandmother,
             Was lineal of the Lady Ermengare,
             Daughter to Charles the foresaid duke of Lorraine:
             By the which marriage the line of Charles the Great
             Was re-united to the crown of France.
             So that, as clear as is the summer's sun.
             King Pepin's title and Hugh Capet's claim,
             King Lewis his satisfaction, all appear
             To hold in right and title of the female:
             So do the kings of France unto this day;
             Howbeit they would hold up this Salique law
             To bar your highness claiming from the female,
             And rather choose to hide them in a net
             Than amply to imbar their crooked titles
             Usurp'd from you and your progenitors.

In response to this interminable recitation, which is anything but “clear as the summer's sun,” King Henry asks in exasperation, “May I with right and conscience make this claim?” In other words, just give me a direct answer to my friggin’ question!
Good lawyers frontload the answers to their clients’ questions in clear and accessible terms. Good lawyers do not bludgeon their clients with obfuscating legal analysis so that either (1) the client is merely induced to do what the lawyer wants the client to do or (2) the client has received nothing of value from the exchange—the lawyer has merely covered his own arse—and the client must still make a dire decision, while continuing to feel hopelessly alone. Perhaps we can call this thing that good lawyers do not do “the Salique Sally Syndrome.” And lawyers should “in the name of God, take heed” not to succumb, lest their words be used to “give edge unto the swords/That make such waste in brief mortality.” (I am reminded of a certain infamous “torture memo.”) At the very least, Salique Sallies are not likely to prevent crappy decision-making.

Thursday, April 11, 2013

Standing on Ceremony

 My daughter and I started to tackle a new text this week, a speech from Henry V. It is the soliloquy the King delivers in the darkness before dawn, just before the battle of Agincourt in which the English will be outnumbered “five to one; besides, they [the French] all are fresh.” Inartfully, I explained to my daughter that, in this particular speech, the King admits to feeling bad about sending a bunch of boys off into battle and otherwise having the world’s weight on his shoulder; but this is what a king must do—bear it all—though the only thing he gets in exchange for the anxiety and attendant sleep-deprivation is “ceremony,” meaning—fanfare, trappings, fancy clothes, people bowing and scraping. Here’s a little excerpt:

Upon the king! let us our lives, our souls,
Our debts, our careful wives,
Our children and our sins lay on the king!
We must bear all. O hard condition,
Twin-born with greatness, subject to the breath
Of every fool, whose sense no more can feel
But his own wringing! What infinite heart's-ease
Must kings neglect, that private men enjoy!
And what have kings, that privates have not too,
Save ceremony, save general ceremony?

Because King Henry is a good king, “ceremony” is hardly fair compensation for what he endures. After all, none of the trappings of majesty—“the sceptre and the ball,/The sword, the mace, the crown imperial,/ The intertissued robe of gold and pearl,/ The farced title running 'fore the king,/ The throne he sits on, nor the tide of pomp/That beats upon the high shore of this world”—none are enough to guarantee he, as king, will ever sleep as soundly as a “wretched slave.” “Idle ceremony” he thinks is just “place, degree and form,/ Creating awe and fear in other men” without actually bringing any peace to the recipient of the ceremonial displays.

But ceremony really isn’t “idle.” Or at least does not have to be “idle.” It has powerful, ritualistic significance—that can be harnessed for good or bad purposes. Certainly, ceremony can and often does go to the heads of people in power, making them think that they are really endowed somehow with supernatural gifts, not just awesome responsibility. But, at least when the ruler in question is a fundamentally good guy like Henry V—sufficiently tormented by his or her power over others’ lives—ceremony can also remind the powerful that their actions have serious consequences, and thus those actions should always be calibrated to serve a higher social order.

“Ceremony” may play a similarly paradoxical role in the legal system. On one hand, certain ceremonial expressions meant to show deference to a court can go to judges’ heads, puff them up with pride. On the other hand, those same bits of ceremony can remind judges of the tremendous power they wield—and that every decision they make has real consequences for real people—sometimes for huge numbers of people for years to come.

One such bit of ceremony is the ritualistic incantation “May it please the Court” with which every advocate is supposed to begin before plunging into an oral presentation before any court. Recently, legal writing guru Bryan Garner took aim at this ritual. Although Garner does not come out and say so directly, he does not seem to care for the formulaic opening. Probably because it is rather archaic, as he points out. After all, the phrase sounds an awful lot like “May it please your majesty”—a line that seems more likely to have been lifted from Shakespearean dialogue than modern discourse. Therefore, Garner may have been surprised, upon interviewing judges, that so many of them defended lawyers’ use of this phrase as a standard opening. Judges seem to recognize the need for this bit of ceremony—at the very least, as a means to focus everyone’s attention before the lawyer launches into anything substantive. But I tell my moot court students that “May it please the court” should never be treated as a throw-away line. It should be used to seize hold of one’s audience—to convey that you are an earnest, prepared advocate, eager to engage, committed to your cause. The words themselves matter because they are ceremonial—which means no one has to waste precious mental resources on the words themselves. Because these words are comfortingly familiar, the audience can instead focus on the intention being conveyed through these words. The words, as a ritualistic vessel, permit the listener to attend solely to the speaker’s affect—his sincerity or her passion for the seemingly, deceptively dry legal issues the court must address.

So “ceremony” does not have to be “idle.” Lawyers’ ceremonial incantations can and should be more than token displays of respect or mere throat-clearing. They are a chance to remind judges of the great power they possess and their need to proceed with vigilance; they are a means to say “What we are about to do here really matters; getting it right really matters—to my client and a greater many others besides—if only it may please the court. . . .”

Tuesday, April 9, 2013

Seizing a Cracked Remedy

Our remedies oft in ourselves do lie,
Which we ascribe to Heaven.

All's Well That Ends Well (I.1.231-32)

Towards the beginning of All’s Well That Ends Well, Helena decides to take her fate into her own hands. The guy she loves is Bertram. Although he is a Count and thus out of her social sphere, she decides she must have him. As the play unfolds, he treats her rather shabbily—in fact, quite horribly—as he pursues a marriage with someone who can enrich his pedigree. But in the end, the smarter, nobler Helena does get her way—i.e., her man. And the play ends with a promise that these people will kiss and make up at a wedding.

Generally, the weddings that end Shakespeare’s comedies and romances have dark implications, unresolved tensions that suggest the irredeemable compromise involved in a remedy that is hardly a matter of unbridled happiness. For instance, in addition to All’s Well, each of the following plays ends with one or more weddings that were brought about by trickery and abuse that is never explained away or entirely remedied:

·         A Midsummer Nights’ Dream
·         Much Ado About Nothing
·         Merchant of Venice
·         Measure for Measure
·         A Winter’s Tale

And except for the case of Hippolyta, the Amazonian princess captured by Theseus and essentially forced to marry him at the end of Midsummer, all of the marriages are ones that the morally superior women seem to want. These marriages are, in other words, all instances of an underdog seizing victory from the jaws of defeat by taking charge of her own fate instead of blaming the stars for failing to align. But Shakespeare does not try to suggest that these remedies will truly make anybody whole.

Lawyers have to seize these kinds of compromised, quasi-victories all the time. Otherwise we would go nuts. For instance, the other day I had to dance with joy because the other side of a pro bono appeal I am handling decided not to oppose a motion to stay that I filed in advance of the brief on the merits. This victory does amount to some really good news for my client—but only while the appeal is pending; it is hardly a complete victory or even a suggestion of improved odds. But considering the vagaries of litigation, we must celebrate when we can. Similarly, a friend of mine recently celebrated a quasi-victory of this nature after a seeming loss before the SCOTUS. He was happy at least to have garnered a terrific dissenting opinion supporting his client’s position and to have gotten a holding narrow enough that it gives his client a chance to fight another day on remand.

Taking it upon ourselves to craft remedies that, while imperfect, at least permit us to sustain hope and thus get out of bed in the morning is a worthy enterprise. These kinds of remedies are really quite distinct from the Panglossian impulse to conclude that “all is for the best in this best of all possible worlds” no matter what kind of shitty things happen. These exercises in quasi-optimism are about warding off despair within the confines of what is truly possible—outcomes that are never perfectly fair, good, or beautiful. These are remedies with cracks in them, which, to paraphrase another great poet, Leonard Cohen, will at least let the light get in. See “Anthem”:

Ring the bells that still can ring
Forget your perfect offering
There is a crack, a crack in everything
That's how the light gets in.

Thursday, April 4, 2013

Ho Hey/Hey Ho

The Lumineers’ hit song “Ho Hey” was just covered by two adorable kids on the TV show Nashville to great instant acclaim. See http://www.youtube.com/watch?v=eP1YEADdHRw.

What neither those cute kids nor The Lumineers may know is that “Ho Hey”—or at least “Hey Ho”—is a motif in a song that Shakespeare wrote for (or at least included in) Twelfth Night. More specifically, “Hey Ho” is part of the refrain in the Fool’s song that ends that bittersweet play:
When that I was and a little tiny boy,
With hey, ho, the wind and the rain,
A foolish thing was but a toy,
For the rain it raineth every day.
But when I came to man's estate,     
With hey, ho, the wind and the rain—etc.

Then again, can this really be mere coincidence? The Fool’s “hey ho” is encased in a song about moving through the stages of life—growing from a “tiny boy” to “man’s estate” to the point where he is “alas to wive” before taking “to his beds;” meanwhile, The Lumineers’ song is also about coming to terms with growing up and even has a line about “sleeping in my bed.”

“Coincidence?” Really??

All this has me thinking about laws regarding copyright—and the elusive line between inspiration, appropriation, allusion, and plagiarism. Tracing this fuzzy boundary will continue to be the “brave new world” (The Tempest, V.1) of the 21st century. Meanwhile, I love spotting uncanny resonances that may or may not be dismissed as “mere coincidence” but make me grateful to be privy to the way poets through the ages throw lifelines to one another. Recognizing such resonances is, essentially, like scoring a triple word score or sipping a peculiarly complex pinot noir. Hey ho!  

Tuesday, April 2, 2013

Old Dry Eyes

On occasion, people whom I don’t know post encouraging or helpful comments on this blawg. One recurrent voice that I have appreciated uses the moniker that provides the title for this post. His last comment made me think of a favorite sonnet, which resonates rather well with my mood of the moment: Sonnet 29. 

You know it even if the number “29” doesn’t exactly jog your memory. It begins “When in disgrace with fortune and men’s eyes . . . .” Most obviously, both this first line and the commenter’s pseudonym include the word “eyes.” But that observation is about as keen as the strained associations to which I sometimes resort that then lead my husband to joke, “Yeah, that’s like saying that Hamlet and your patent law brief both have the word ‘the’ in them.” More significantly, “dry eyes” represent the opposite condition of the speaker in Sonnet 29.[1] The sonnet’s speaker admits that feelings of shame, bad luck, personal failure, professional disappointment prompt him to “trouble deaf heaven with [his] bootless cries/And look upon [him]self and curse [his] fate[.]” He is then wracked with envy—
Wishing me like to one more rich in hope,
Featured like him, like him with friends possess'd,
Desiring this man's art and that man's scope,

—and ennui:

With what I most enjoy contented least[.]

But he finds a way to snap out of this self-loathing pity-fest by thinking of the one he loves—and writing a nifty sonnet about it. In doing so, his despair is replaced (for the moment) by a euphoric sense of gratitude and equanimity: 

Yet in these thoughts myself almost despising,
Haply I think on thee, and then my state,
Like to the lark at break of day arising
From sullen earth, sings hymns at heaven's gate;
For thy sweet love remember'd such wealth brings
That then I scorn to change my state with kings.
One could call this sonnet “Ode to Being Bipolar.” But today, I prefer to think of it as “The Lawyer’s Lubricant” or “Hymn to Work”—as in, “work as a response to dark moments of self-doubt” or “doubling-down against dark doubts about the insignificance of one’s work.” I am not suggesting that lawyers tend to be bipolar (although there is all that empirical data about high instances of depression, substance abuse, divorce, even suicide.) But being a lawyer, which starts with the affliction known as “being a law student,” can be quite a grind—even for the highly compensated strivers among us, which does not characterize most of us, by any stretch. And even among the highly compensated one certainly does not find a neat correspondence with the set of “happy lawyers”—although those three or four who nail the sweet spot in that Venn diagram illustrating “wealthy lawyers” and “happy lawyers” probably deserve universal awe.

But, seriously, every lawyer could use his or her own “Old Dry Eyes” now and then, providing a gratuitous kick-start, just as the voice behind Sonnet 29 needed the affection of a beautiful youth to help him shake off the shadows and refuel for another round.
So go on: think about some lawyer or law student you know who might be struggling with a bit of existential despair right now and throw them a random ray of sunshine. You will make their day—just as I hope this post makes a mysterious pair of dry eyes twinkle just a bit.

[1] From what I can glean, the actual personage behind the anonymous “Old Dry Eyes” is a rather sentiment fellow who appreciates poetry and, perhaps, blogs from a porch near Las Vegas.