Tuesday, February 25, 2014

Navel Gazing

“Anonymous” left a disconcerting comment on this blawg in response to a post commemorating my attachment to the late Pete Seeger. The disconcerting part had to do with my belly button, allegedly observed by a person who claims to have once studied philosophy with me. 
I did in fact teach introductory philosophy courses at several community colleges in the Dallas Metroplex from 1989 to 1999. However, in those classes I never once showed my belly button.  Upon reflection, I recall that I did expose said belly button twice on stage during that same period.
One production was a compendium of original shorts by Dallas-area playwrights called Local Eccentricities. The night before we opened, a member of the cast of “Three Graces” walked out on us for reasons that remain shrouded in mystery. I don’t know, but I suspect that she, whose day job involved teaching high school English at a prestigious private school, suddenly balked at the idea of a student spying her, quite literally, in her underwear—because these three graces' costumes consisted of nothing more than dainty bra and panties enhanced with symbolic accoutrement. After her sudden departure, I, as the director, had to act. The only “act” that seemed possible at that late date involved me stepping in, learning her lines, and donning her green bra and panty set.  For “the show must go on,” and all that. Therefore, if any of my philosophy students before or at that time happened to see that production during its month-long run, they would indeed have seen my belly button.
The second production is a more likely contender as it was produced at one of the colleges where I was then teaching philosophy and theater classes.  It was a production of Euripides’ The Bacchae of which I remain quite proud. Unfortunately, well into rehearsals, and after a great deal of elaborate choreography had been learned, one member of the female Chorus of Maenads dropped out.  (Perhaps she too balked at the eleventh hour at the idea of being observed on stage scantily clad—in bits of fur, leather, and leaves. But I, the director, was not afforded an explanation on that occasion either.) So once again, the only available option involved me stepping in. I did so under the guise of a pseudonym, imagining that only those who knew me best would recognize me among the Wild Women of Thebes, bewitched by the god, Dionysus.  Perhaps, though, one of my more perspicacious philosophy students recognized me there among the mass of Maenads, and thus connected me with a certain exposed belly button.
You can see why this comment by Anonymous was disconcerting—forcing me to revisit these scenes-from-a-former-life in conjunction with a blawg devoted to sophisticated musing about law and literature. In a few sentences, Anonymous had laid things bare, at once applauding and embarrassing me. But, ultimately, I was impressed by the poetry of Anonymous’s comment, how he journeyed in short order from a literal reference to a belly button to a figurative reference to a heart. I was also encouraged, perhaps naively, by the notion that a cerebral philosophy professor, by her willingness to expose herself for the sake of art, had made a favorable impression on some student long ago in a way that had withstood the test of time.
Having been forced to process these unbidden memories, it occurred to me that these productions, though separated by a span of years and other variables, shared a theme. Both were, in a way, about how women simultaneously wield and shed power when they shed their clothes. This simultaneously liberating and self-defeating power is what Shakespeare’s Titania and Cleopatra embody. It is a power grounded in nature—that is, in our evolutionary past—but also fraught with stultifying cultural baggage. It is a power that permits winning when the fight isn’t fair but then losing before the curtain falls. It is a power that women invent and that is also always already there to be exploited. “We are their parents and original.”  [Midsummer, II.1]
Then it occurred to me that this whole blogging business, too, is all about exposing oneself. Even the stodgiest blawgs, to which some of my more practical, buttoned-up colleagues are devoted, inevitably reveal something about their authors that those authors generally keep covered up. And the prospect of an occasional navel sighting, not the promise of objective reporting, explains why people revisit most blogs. Certainly, the truly popular blawgs are all about exposing that which others would prefer to keep covered up. See Above the Law. 
By contrast, much of law practice is about advising others how to keep their vulnerabilities properly covered or how to defend against assaults upon that which one had intended to keep covered up.  Occasionally, though, navels are exposed by lawyers themselves—as a matter of necessity. And this is really stressful stuff. For instance, if personal injury plaintiffs have any hope of prevailing, their lawyers will tell them that they are going to have to reveal all manner of personal information found in medical records, tax returns, even diaries that they had long conceived up as safe from prying eyes. Similarly, when clients turn on their lawyers, lawyers, in defending themselves, often have to disclose what had long been conceived as confidential—client communications and privileged attorney work-product—thereby turning the sacred core of the attorney-client relationship inside out.
This ever-present potentiality does (or should) bred special caution on lawyers’ part about how certain things, like their advice, are formulated. One could say that best practice is to assume that one’s navel is always vulnerable to exposure no matter what conventions exist to protect against unwanted disclosure.  Both lawyers and the clients they advise have to consider the prospect that, one day, to carry a burden or to defend against an attack, the duty to conceal may be trumped by the duty to disclose. In any case, these contrary duties always exist in an uneasy tension in the simultaneously public and private legal arena. 
Both concealing and disclosing are acts that can be mindlessly impulsive or require special fortitude. The kind requiring fortitude involve calibrations designed to avoid regret.  Or, as the pickpocket Autolycus explains in Shakespeare’s Winter’s Tale, to have integrity, the decision to conceal or to disclose should resonate with one’s professional affiliation:
The prince himself is about a piece of
iniquity, stealing away from his father with his
clog at his heels: if I thought it were a piece of
honesty to acquaint the king withal, I would not
do't: I hold it the more knavery to conceal it;
and therein am I constant to my profession.

Wednesday, February 19, 2014

Wanton Sentences

She puts the period often from his place;
And midst the sentence so her accent breaks,
That twice she doth begin ere once she speaks.

The Rape of Lucrece, Stanza 81 

The “PrawfsBlawg” is currently hosting a contest. It seeks nominations for “the worst sentence in the history of American judicial opinions.” Sadly, viable contenders abound. The Prawfs provide this example from the Supreme Court’s 1851 decision in Cooley v. Board of Wardens:
This would be to affirm that the nature of the power is in any case, something different from the nature of the subject to which, in such case, the power extends, and that the nature of the power necessarily demands, in all cases, exclusive legislation by Congress, while the nature of one of the subjects of that power, not only does not require such exclusive legislation, but may be best provided for by many different systems enacted by the states, in conformity with the circumstances of the ports within their limits.
Cooley is routinely taught as a seminal case about the relationship between the states’ police power and the federal government’s power under the Constitution’s Commerce Clause.  In the case, the Court held that a Pennsylvania law, which required that all ships entering or leaving Philadelphia hire a local pilot, did not offend the Constitution.
Okay, so what? The point of this post is offensive sentences, not offenses to the Constitution.
This 91-word monstrosity from Cooley is indeed offensive; it offends the senses because its sense is so hard to ascertain. No wonder so few law school graduates know how to write when this is what is offered up as an exemplar of judicial analytical prose.
To be fair, texts, in the form of case law, are not selected for inclusion in law course curricula because they exemplify scintillating (or even workmanlike) prose.  Generally, judicial opinions are selected as vehicles for teaching law students because they show the emergence of some legal proposition deemed important for understanding how some doctrinal area of the law has evolved. The writing is just what one has to slog through to ferret out the all-important proposition.
There is a painful irony in this, of course. For let’s be frank: even mathematicians care a great deal about values like “elegance” and “simplicity” and “accessibility” when it comes to solving elusive theorems. Yet The Law, where the medium is, ineluctably, language itself, readers are often subjected to language devoid of craft—or at least composed with little regard for the aesthetic values that guide many others who write for a living.
I admit that I continue to struggle with offensive sentences, constructions bloated beyond measure. I attribute this tendency to a childhood spent reading 19th century novels instead of doing my homework. Early on, I developed a pronounced attraction to esoteric and convoluted word play. The Faulkernian, Proustian, Dickensian, Bronte-an, Dostoyevsky-an, compound-complex convolution continues to hold secret sway over my instinctual pleasure centers. Yet I have learned to resist the impulse to subject the readers of my (legal) writing to these highly subjective preferences. At the very least, I have learned to make a habit of rooting out the results of these deep-seated impulses while reviewing and revising my legal work.  Because, ultimately, I’ve accepted that the impulse runs counter to the goal of effective communication.
Alas, what may appeal to some small contingent of eccentrics does not tend to work for a general readership. And although most legal writing will be consumed by a minuscule rather than a general audience, legal writing today is supposed to aim for accessibility above all. For easing others’ pain. For cutting through the mire. Because all that law stuff is difficult and dense and incomprehensible enough as it is. See excerpt, supra, Cooley v. Board of Wardens, 53 U.S. 299 (1851).
Some readers (should such readers exist) might find it odd that I am urging legal writers to strive for simple sentence structures. This blawg is, after all, devoted to holding the flame aloft for William S.  But that guy really did know his way around a sentence. His form demanded certain contortions and permitted other indulgences. But when it comes to crafting a succinct zinger, the man knew how to deliver. Moreover, he recognized that having fun with sentences was among the few activities separating us from other beasts. As Feste, the Clown in Twelfth Night, says:  “A sentence is but a cheveril glove to a good wit: how quickly the wrong side may be turned outward!” [III.1] And as Viola says, prettily in response: “ Nay, that's certain; they that dally nicely with words may quickly make them wanton.”
So let’s have no wanton dallying with words such that our sentences disgrace us.
P.S. Special thanks to Kasia for the inspiration.