Wednesday, May 29, 2013

Now entertain conjecture of a time. . . .

Before the Boy Scouts voted on the issue that was the subject of my last post, Texas Governor Rick Perry recorded a statement from inside the Governor’s mansion, analogizing his public stance against allowing (openly) gay boys to join the Boy Scouts to founding Texan Sam Houston’s stance against secession. Perry claimed that Sam Houston had stood up against the cultural tide of his time, opposing secession as a matter of principle because he was opposed to slavery—even though it cost him his governorship:

From this library that I speak, he made a powerful decision that cost him his governorship. He was against slavery, and he stood up and very passionately said, you know, ‘Texas does not need to leave the Union over this issue of slavery. We need to stay. We’ve only been’ -- he thought, a terrible decision. He was right. But it cost him his governorship.

The Texas version of Politifact reviewed this statement and rated it “half true.” A generous assessment indeed—at least if the assertion is assessed through the lens of a legal argument.

Legal arguments are only compelling if they are supported by precedent that is on point and well-reasoned and, preferably, binding on the decision-maker. This is because most judges believe in doing their job; and the job of adjudicating legal disputes means that relevant, well-reasoned, binding precedent is supposed to answer most questions. Absent binding precedent, a judge at least looks for relevant, persuasive precedent for guidance; and if that non-binding, but highly relevant, precedent is not persuasive, the judge who is doing his/her job owes it to his/her audience to provide reason-based arguments as to why that previous decision is not sound and thus a different outcome is warranted. Therefore, when it comes to judges who are committed to doing their job, nothing is riskier than invoking an authority as if it supports your position when in fact it doesn’t. Make no mistake: they will not simply take your word for it; they will fact-check you.

Here is how Sam Houston’s action on the eve of Texas’s secession relates to Perry’s stance with regard to the Boy Scouts:

  • Rick Perry and Sam Houston are people who have been governors of Texas.
  • The prospect of states seceding from the Union in 1860 and the prospect of the Boy Scouts allowing openly gays boys to join their organization in 2013 are both developments that raise the hackles of some contingent of people throughout the country—but especially in Texas.
  • Sam Houston did oppose secession while his constituents voted for it, and he was run out of his job as a result. 
Here is the problem with Perry citing Sam Houston’s action on the eve of Texas’s secession as support for the stance he has taken with regard to the Boy Scouts:

  • Perry’s assertion that Sam Houston opposed secession because Houston, a slave owner, was against slavery, is readily falsifiable. Houston never made any statement—let alone publically disclaimed—slavery.
  • The public debate about secession, which certainly hinged for many on whether some states should continue to have the right to permit their citizens to hold other human beings in bondage, is not quite analogous to the debate within a private non-profit organization about whether to exclude some from membership based on an innate characteristic: sexual orientation.
  •  Even if Sam Houston had spoken out against slavery (which he didn’t), that stance would stand in stark contrast to speaking out for an exclusionary position based on hatred, bigotry, fear, ignorance, and/or political expediency.
  • Even if Sam Houston had spoken out against secession (which he did), for a person to invoke that stance who, in very recent history, has spoken out implicitly for a modern secession movement so as to rally followers during the run up to a (failed) bid to run against the country’s first African-American president is, at best, distasteful. It certainly does not resonate in a way that moves a reasonable mind want to nod in agreement.
  • Rick Perry did oppose the idea that the Boy Scouts should become more inclusive, and, while many of his constituents may agree with him, a majority of the Boy Scouts’ leadership did not. Even so, Perry is still comfortably ensconced in the Governor’s mansion.  In other words, taking this stance did not take demonstrable courage in the face of a rabid mob but looks more like red meat thrown to likeminded constituents.
In citing precedent, lawyers need to be like most of Shakespeare’s (educated) characters, whose allusions to precedential figures always ring true. At the very least, lawyers need to ensure that, when invoking precedent, their authorities are:

  • Sufficiently relevant;
  • Described accurately; and
  • Thematically resonate.
Alternatively, lawyers’ allusions should function like the one used by King Henry V just before the Battle of Agincourt. He invoked Saint Crispin as precedent to inspire his sorely outnumbered troops. The King could count on the audience he intended to persuade to know only that Crispin (and his twin brother Crispian) were noble-born men who were grossly outnumbered, but, despite the sore odds, remained true to their faith, and were actually humble enough to support themselves performing honest work (shoe-making) at night to sustain a life of integrity. And armed with that knowledge—which is all that exists regarding this precedent—those hearing Henry’s argument about how the English should comport themselves experience a resonance that thrills both heart and mind:

And Crispin Crispian shall ne'er go by,
From this day to the ending of the world,
But we in it shall be remember'd;
We few, we happy few, we band of brothers;
For he to-day that sheds his blood with me
Shall be my brother; be he ne'er so vile,
This day shall gentle his condition:
And gentlemen in England now a-bed
Shall think themselves accursed they were not here,
And hold their manhoods cheap whiles any speaks
That fought with us upon Saint Crispin's day.

Henry V, IV.3

Meaningful resonance between precedent and contemporary fact-pattern is what persuade a judicious decision-maker to embrace one's argument and grant relief.

Sunday, May 26, 2013

Measuring Scouts in Binary Oppositions

 On Thursday, May 23, 2013, the Boy Scouts of America voted on whether to allow (openly) gay members to join the organization.[1] By Friday eve, the Associated Press reported that the proposal carried the day, garnering 60% of the vote by the 1,400-member National Council. The vote was held during the Scout leaders’ annual meeting in Grapevine, Texas amidst significant lobbying efforts on both sides of the issue. I am sure you heard about the hoopla.

In following this development, my thoughts lit upon two former Eagle Scouts with whom I am familiar who embrace opposite points of view as to the efficacy of this policy change.

On one hand, I know personally a former Eagle Scout who is now a very successful Texas businessman. He is openly gay. He has been with the same person for nearly thirty years, ever since they met and fell in love as undergraduates. The state does not permit them to marry, but it has permitted this couple to adopt two special needs kids who had been wards of the state and who were in dire need of a safe passage out of the mire of chronic abuse to which they had been subjected since their time in the womb. This former Eagle Scout is for allowing openly gay boys to participate in scouting.

On the other hand, I know of a former Eagle Scout who is now a long-standing governor of the state of Texas. He too has been successful in his sphere of influence. He has had the same partner for a long time, with whom he has had two children. He has not had to worry about whether the state would sanction either his marriage or paternity. This former Eagle Scout has taken a public stand against allowing openly gay boys to participate in scouting.

What might Shakespeare say about these people who share characteristics, yet have adopted polar opposite positions with regard to a public policy?

Shakespeare was fond of using mirroring techniques to further a theme—two characters who seem similarly situated but who end up occupying diametrically opposite positions with respect to a set of values. The audience, in watching the interplay of these binary opposites, is able to glean a theme, some deeper truth.

Audiences, like members of the Boy Scouts’ National Council, are more likely comprised of people who do not occupy the space at either pole. Most people in scouting leadership are not openly gay—only about 10% of them may even qualify; and most people in scouting leadership do not believe that gay people are three-headed beats whose existence is a threat to heterosexual marriage and the very fabric of civilization—probably only about 10% of them hold such beliefs. So that means 80% have to determine what they believe based neither on personal experience nor apocalyptic vision. If Shakespeare were writing the script, he would construct a plot such that the two poles’ interaction would nudge the audience in a certain direction. But he would do so in a way that is psychologically interesting—i.e., through a prism that is complex and thus realistic. Shakespeare rarely crafted caricatures or mere foils. Consider, for instance Edgar and Edmund in King Lear. While Edgar is the good son and Edmund the treacherous one, the former is not a pallid saint and the latter is not a cartoonish villain. Both are fascinating, intelligent, and thoroughly believable. But all is not relative either. What Edmund believes is right, which amounts to the ruthless pursuit of his own self-interest, is not right. He believes that it is okay to exploit his Edgar “a brother noble,/ Whose nature is so far from doing harms,/ That he suspects none: on whose foolish honesty/ My practises ride easy!” (I.2)

By contrast, Edgar is willing to assume the disguise of a madman—not only to escape capture but to find a way to protect his foolish father who has believed Edmund’s machinations, designed to suggest that Edgar (as opposed to Edmund) is plotting to assassinate their old dad, thereby inducing the old man to turn on Edgar and elevate Edmund.

I am happy to see that a majority of the Boy Scouts’ leaders did not follow the leader lobbying for a position designed to induce turning on their gay brethren and calibrated, perhaps, merely towards making certainly leaders “grow” and “prosper” politically (Edmund, King Lear, I.2). The position that was rejected is, in my view, illegitimate because, like Edmund’s consciously false portrayal of Edgar, it is based on a falsely dichotomous view of nature.

[1] The group is not yet ready to consider changing its policy regarding (openly) gay scout leaders.

Sunday, May 19, 2013

Flying Solo

Right now the green-eyed monster has a grip on me—imagining the crowds flocking to the Barrymore Theater to see Alan Cumming, Scottish native, perform his (almost) one-man version of Macbeth. Cumming performs Macbeth as the “horrible imaginings” of a psychotic who has been apprehended after committing some unspeakable acts. The subtext is his descent further into madness. Locked up in a tiled ward, he flies through the basic story, playing all the major roles, as if reliving the recent past.

I am not jealous of those who get to see this grisly, inventive production because the NY Times gave it a rave. (It didn’t.) I am jealous because a person outside of that great Yankee City doesn’t get tons of opportunities to see Shakespeare—let alone Shakespeare performed by charismatic actors in complete command of the language. So even if the NY Times had panned this production (it didn’t), I would still long to see it.

The Times review gives Cumming credit for “energetic flitting among characters” in a way that keeps the audience “constantly entertained,” but suggests that “[p]erhaps partly because he is playing all the roles (save for two small [ones]),” he doesn’t “fully inhabited any one of them.” (emphasis added) I would say this is often the trade-off I’ve experienced in seeing other one-person versions of Shakespeare plays. If deftly executed, one is dazzled by the sheer showmanship of the performer; yet because the focus, inevitably, is on the performer’s dexterity—his or her ability to transmogrify body, voice, and emotional pitch at the snap of nimble fingers—the audience is less likely to get lost in the world of the play or the verisimilitude of any character’s emotional arc. I love tight, deftly executed productions performed by a handful of skilled actors—like the “Actors from the London Stage” Shakespeare productions that UT hosts each fall. But in truth, if a person is not already quite familiar with a given play, when an actor is playing multiple roles in the same scene it can be hard to follow and thus fully appreciate what is going on. By contrast, if a person already knows a given play really well, the palimpsest of meaning created by an actor playing multiple roles can enhance the experience.

This challenge is quite similar to what solo practitioners of law must face. If a single lawyer is handling pretty much all aspects of a case, to do the job well, that lawyer must have both a deep and broad understanding of the law and facts. But when it comes time to convey that law and those facts to outsiders—through a legal brief or during a jury argument—that lawyer may be able to impress the audience with his or her command of the material, but may have a harder time translating that material such that it is accessible to the uninitiated. Because the lawyer is carrying everything, it can be especially tough to remember what it is like not to know what is going on; yet that is the facticity of the lawyer’s audience—they do not know what is going on. They need to have their hands held; they need to be drawn into the story; they need to be compelled to feel empathy for the central figure for whom the lawyer acts as a mere agent.

I feel nothing but respect for solo practitioners, the courage they have to handle the dual roles of lawyer and businessperson at all times. And solos are not the only lawyers who, when writing a brief, might write sentences that are laden with shorthand like this: “The Modica court recognized that Sadowski just accepts Haybarger’s holding uncritically.” But solos are, by definition, less likely than lawyers working in an ensemble cast to have someone who can serve as a check, tethering the lawyer who unthinkingly goes soaring over the audience’s head.  

Monday, May 13, 2013

Foot Fetish

Several of Shakespeare’s characters exhibit a pronounced interest in feet. For instance, Don Armado in Love’s Labour’s Lost confesses that he has an affection for a certain wrench—an affection that is admittedly “base”—that is centered on her feet:

I do affect the very ground, which is base, where
her shoe, which is baser, guided by her foot, which
is basest, doth tread.

Later, this same Armado writes this same wrench a love letter wherein he imagines caressing, among other things, her lower appendages:  “I profane my lips on thy foot, my eyes on thy picture and my heart on thy every part.”

Similarly, Caliban of The Tempest seems fixated on feet. After falling in love with Stephano’s “celestial liquor,” Caliban swears his loyalty to the besotted boatswain thus:

I'll show thee every fertile inch o' th' island;
And I will kiss thy foot[.]

Later, Caliban is even more explicit, describing himself to Stephano as “thy Caliban, … thy foot-licker.”

Like Armado and Caliban, there are eccentric lawyers who are peculiarly attached to feet or, more precisely, to footnotes. But let’s be clear: in practical legal writing, footnotes are not the conventional repository for legal citations. This is because, as law students soon learn, those ugly citations that seem to clog up legal writing are actually jam-packed with useful information. And those forced to read legal writing for a living rely on those citations as a means to assess the value of an argument even as they ingest it. This is because legal arguments are only as forceful as the authority upon which they rest. And crucial information about an authority is conveyed through a standardized citation form, which is dictated by the Evil Minions charged with editing The Bluebook of Uniform Legal Citations. All law students are introduced to this frightful reference guide early in the hazing process. They soon learn that these citations are shorthand for an array of useful stuff such as: whether a given source is a primary or secondary legal authority (only the former is really “the law”); whether the authority emanates from a court, a legislature, a regulatory body, or just some law professor; and whether, if it is a primary authority, it comes from a binding jurisdiction. A citation also tells how old the authority is, and recency often matters because the law is forever in flux. And, quite importantly, a citation is supposed to include the precise page where the reader can expect to find a particular quotation or proposition since no reader of legal writing is naturally predisposed to trust those who produce legal writing (i.e., lawyers); these readers plan to verify your reputed authorities and thus do not appreciate having to shift through a 45-page judicial opinion to find where it says what you say it says.

Very quickly, readers of legal writing learn how to take in all of this info about an authority on the fly while reading the substantive argument that is allegedly supported by the citations the author provides. Therefore, sticking this info in footnotes can be problematic. It forces the well-acclimated reader of legal writing to pause, glance down at the bottom of the page, scan the citation in question, and then search around for the place back up in the body of the argument where the reader was interrupted by that footnote. In other words, as opposed to what normal people do when they encounter footnotes in academic writing, readers of legal writing want the “goods” in the footnotes so they really will stop to read them all, though everyone knows this process of stopping to move down and back up the page is peculiarly disruptive.

This additional labor is why only a handful of practitioners, judges, and legal writing gurus make a fetish of putting citations in footnotes, like legal scholars do. And, it seems to me, that most of this minority of footnote-fetishizers is comprised of folks who did not spend much of their career actually practicing law.

I do not mean to suggest, however, that footnotes have no place in practical legal writing. Au contraire! Footnotes are really useful for two purposes—as a repository for:

  • True asides; and
  • Ugly Internet citations. 
Here are my justifications:

First, some ancillary arguments are worth making—and can be made efficiently—but would disrupt the flow if elevated to the main text. By sticking such arguments in footnotes—and making sure they work as stand-alone pieces—the reader is free to go back and consume them at his or her leisure. (The challenge is to resist using footnotes to house gratuitous swipes at opposing counsel that really don’t advance the client’s interest but simply serve as a means to vent.)

Second, I really hate how ugly and convoluted URLs/web addresses generally are. So whenever I cite an authority that is readily available on the Internet, I systematically bury those citations in a footnote. It’s an aesthetic preference, nothing more than that.

So I concede that footnotes have their place. But fetishizing footnotes—as if they were the answer to rendering legal writing more accessible to some imaginary general populace who longs to read legal arguments—that I find as amusing as Don Armado’s adoration of “thy sweet grace's slipper” and Caliban’s foot-licking.

Wednesday, May 8, 2013

The Chimes at Midnight

Jesu, Jesu, the mad days that I have spent!
“Robert Shallow,” Justice of the Peace, Henry IV, Pt. 2 (III.2)

One of the saddest moments in all of Shakespeare involves a silent exchange between two men, one of whom is regarded as one of Shakespeare’s most comic creations: Sir John Falstaff. The other man is a Boy King who feels obligated, in classic Oedipal fashion, to cut down the “father” and forge his own way.

But even after that sad, sad moment—which culminates in Sir John’s most pathetic, heart-breaking demise—Shakespeare could not let the guy go. Falstaff was so charismatic that, seemingly, WS had to find a way to resurrect him in a mediocre bedroom farce (Merry Wives of Windsor). The inability to let Sir John go did not result in artistic pay dirt; but it is a tribute to how hard it can be to accept the death of truly Dionysian figures and how tempting it is to feed on their larger-than-life energy—until that same energy goes careening toward the lower depths.

Falstaff is a central character in Henry IV pts 1 &2. He is a dynamic reprobate, the fraternity brother endowed with uber gifts of eloquence and insight, but who doesn’t quite live up to his potential. He becomes a stumble-down drunk; yet his artistic sensibilities make him disdainful of those who merely relish debauchery. He is Prince Hal’s mentor, partner in crime, surrogate father. He is lovable, horrible; generous and cruel; entrancing and repulsive—as dangerous and intoxicating as crystal meth.

Sooner or later, the regular frat boys realize they have to learn to get up at dawn, not just be up at dawn; yet long after the party ends, they want to be able to reach back and claim an association with Sir John. They want to be able to say that, with him, they “heard the chimes at midnight”—even after he becomes a pathetic shadow of his once-glorious nihilistic self. They are not there at his tawdry, festering bedside as he turns “as cold as any stone.” They have appointments to keep, family obligations to which they must attend. But they will feed on his energy in perpetuity, “prate” about “the wildness of [their] youth, and the feats [they]
hath done,” but, as Sir John recognized, “every third word [is] a lie.”

Sir John is the only one who, by never putting on the brakes, refused to lie.

But, with such honesty, he is brought low by his own heart. And thereby proves to be as inferior as he seemed—to others and himself—superior.

Monday, May 6, 2013

Get Physical

Heard a summary of some recent neuroscience that confirms something all good writers know instinctively: graphic language resonates more effectively in a reader’s brain. Apparently, our brains really do experience the concept of “a rotten idea” more fully than the less concrete “a bad idea.”  This is because metaphors that are visceral resonate in multiple parts of the brain—parts that handle abstract reasoning as well as our more primitive, reptilian parts. Language is replete with physical metaphors because our brains have long used our pre-linguistic understanding of physical experiences to help us describe more abstract notions (to wit: “falling in love”). Language that builds a bridge from idea back to a physical experience uses the brain in a more holistic, distributive way.

It follows from this that anyone who works with words for a living should constantly strive to set the senses aquiver.

One could say that working obsessively to bridge the gulf between abstraction and concrete experience is precisely what poets do.

“Life’s but a walking shadow, a poor player,/ That struts and frets his hour upon the stage,/ And then is heard no more” (Macbeth, V.5) is so much more powerful than “Life is a futile, brief enterprise.” And “dreams … are the children of an idle brain,/ Begot of nothing but vain fantasy, Which is as thin of substance as the air,/ And more inconstant than the wind” (R&J, I.4) is a bit more captivating than “Dreams are weird.” Why? In part because Shakespeare’s versions transform a philosophical observation into vivid, concrete terms that make the entire brain buzz.

Too often, unthinking writers (which, alas, includes an awful lot of legal writers) settle for vague, conclusory assertions:

·       “The court’s analysis was unsound.”
·       “Defendant’s proposed reading of the rule is unsupported by the text.”
·       “Individual liability should not be allowed because it promotes bad public policy.”
·       “Plaintiffs overstate the value of their case.”

Then again, lawyers are not free in every instance to unleash the full force of their poetic sensibilities. Channeling Shakespeare as follows might be a bit problematic in a formal brief:

·       “The court’s analysis was ‘as two grains of wheat hid in two bushels of chaff: you shall seek all day ere you find them, and when you have them, they are not worth the search.’” (Merchant of Venice, I.1)
·       “Defendant’s proposed reading of the rule is ‘a very fantastical banquet, just so many strange dishes.’” (Much Ado, II.3)
·       “Individual liability should not be allowed because it would be as ‘noisome weeds which without profit suck/ the soil’s fertility from wholesome flowers.’” (Richard II, III.4)
·       “Plaintiffs speak of their case with ‘a large mouth indeed,/ That spits forth death and mountains, rocks and seas,/ Talks as familiarly of roaring lions/ As maids of thirteen do of puppy-dogs!’” (King John, II.1)

Lawyers are not poets, alas. But we are professional writers. Certainly, the verbiage we produce could always afford to be more physical.