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Archive for May, 2012|Monthly archive page

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“Fairy Tale Mail,” Poems by Margery Hauser

In Arts & Letters, Creative Writing, Humanities, Law, Law-and-Literature, Poetry, Writing on May 29, 2012 at 8:59 am
Margery Hauser is  a New york City poet whose work has appeared in Poetica Magazine, Möbius, The Jewish Women’s Literary Annual, Umbrella and other journals, both print and online.  Excerpts from “Fairy Tale Mail” (which she published here at The Literary Lawyer) have appeared or will soon appear in Ides of March and The First Literary Review. When she is not writing poetry, she can often be found dancing, knitting,  practicing yoga or working out with her tai chi broadsword.  She is a member of the Parkside Poetry Collective, for whose encouragement and support she ever grateful.
 
 
 
Subject: Civil suit
 
We’ve read the facts pursuant to the case
regarding your late husband’s sad demise.
Regretfully, a lawsuit has no trace
of merit and therefore we do advise
that evidence a-plenty proves his fall
occurred while in commission of a crime.
No fault accrues to Pig and Pig, et al.
No damages are due you at this time.
        His huffing and his puffing further show
        a pre-existing illness and although
        this wasn’t cause of death it surely must
        support that bringing suit would be unjust. 
        Your husband died attempting a break-in
         and so this suit is one you cannot win.
 
 
 
To: NRimer@mere_l’oye.net
Subject: Pumpkineater v. Pumpkineater
 
My client in an affidavit swears
that he confined his faithless wife because
she had indulged in numerous affairs –
he didn’t think he’d broken any laws.
Her infidelities made him so sad
and left him feeling helpless, in disgrace;
in fact, you might say that she drove him mad
by throwing her amours smack in his face.
These acts diminished his capacity
        to tell right from wrong. Her audacity
        impelled him to this deed.  He does regret
        his rashness and hopes she can just forget,
        forgive and drop the charges that she brought.
        He simply was distressed and overwrought.
 
 
 
Subject: re: Pumpkineater v. Pumpkineater
From: NRimer@mere_l’oye.net
 
Mrs. Pumpkineater’s life was hell
when Peter, in a fit of jealous rage,
confined her in a fetid pumpkin shell
no better than a jail cell or a cage.
She swears that she was faithful, always true
and kept her marriage vows although her mate
treated her most harshly in our view.
He threatened violence if she came home late.
        She’s willing to drop charges and agree
        to just divorce the beast, let him go free.
        She wishes he would suffer as she did
        but asks for nothing more than to be rid
        of this abusive, cruel and jealous spouse.
        Oh, by the way, she wants the car and house.
 
 
 
Subject: State v. Farmer’s Wife
 
Regarding claims by Mouse and Mouse and Mouse:
details of their de-tailing do support
the charge against the farmer’s vicious spouse.
We demand this case be tried in court.
The victims all are visually impaired
and wandered by pure chance across her path.
Under oath they all have so declared, 
but she responded with unbridled wrath!
        It’s clear she meant to take each Mouse’s life,
        her WMD a carving knife.
        We know that rodents often are maligned.
        We know society neglects the blind. 
        The only way the Mice will be requited
        is if their assailant is indicted.
 
 
 
Subject: Name Change
 
The miller’s daughter to my great surprise
has ruined my business plan – a sort of game
that asked contestants to vie for a prize
by guessing my most strange and secret name.
How that was managed she would never tell –
it’s not as if I bandied it about.
But she’s the queen and my plan’s shot to hell.
It looks as if my luck has just run out.
        I had ideas – big ones – they’re all a bust.
        She found me out so I must now adjust.
        I’ve given it much thought and I’ve assessed
        the possibilities that won’t be guessed. 
        Please amend the records; let them show
        that my last name is Stiltskin, first name Joe.

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Lack of Intellectual Preparation?

In American History, Arts & Letters, Book Reviews, Historicism, History, Humanities, Law on May 25, 2012 at 9:03 am

Allen Mendenhall

Last week I was reading several old reviews of Lawrence Friedman’s landmark work, A History of American Law.  I came across a 1974 review by David J. Rothman in Reviews in American History.  Rothman made the following point, which, despite being made 34 years ago, is bound to offend some readers of this site, especially those who are lawyers or law professors:

I have attended conferences of law professors doggedly determined to be interdisciplinary, and I have been appalled at the lack of intellectual preparation that many of them had for such work. They would talk blithely about bringing the insights of, say, game theory to the law-with only the vaguest idea of what game theory was all about. (Indeed, how could they have had more than a vague idea? After a general undergraduate training, they went to the law schools, then to the courts as clerks, then back to the law schools.) So one must, perforce, have a lurking fear that some of the new interdisciplinary efforts will be so inadequate as to prompt law professors to decide to do well what they can do, rather than to do badly what they should do. And law schools may well continue to perpetuate half-knowledge. They remain torn between serving as trade schools to the profession and graduate schools to the scholars. This compromise may turn out to be less and less tenable over the next years.
 
Does Rothman’s claim remain true when the “new interdisciplinary efforts” aren’t so new anymore?  Today many law professors hold Ph.D.s in various disciplines, and these professors use their unique, specialized training to enhance legal scholarship in their respective sub-disciplines.  But does “extra” graduate work or a specialized degree necessarily signal a superior skill set, or is Rothman’s view elitist?   These questions will be the subject of a future post on this site, and potentially of a future article, so I would like to hear back from readers.  Please email your responses to me or, if you’d prefer, post them in the comment box below.    

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Liberty and Shakespeare, Part Two

In Arts & Letters, Austrian Economics, Economics, History, Humanities, Law, Law-and-Literature, Legal Education & Pedagogy, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Shakespeare, Western Civilization on May 22, 2012 at 8:08 am

Allen Mendenhall

The following essay orginally appeared here at Mises Daily.

The Later Works (1973 to present)

It is well settled that James Boyd White’s The Legal Imagination (1973)[29] catalyzed the law-and-literature movement as we know it today. A professor in the Department of English, Department of Classics, and College of Law at the University of Michigan, White brings a unique interdisciplinary perspective to bear on this field that he more or less founded. He remains prolific even in his old age, having published a string of books on a wide variety of topics having to do with legal rhetoric and legal or literary hermeneutics. Since White’s landmark tour de force in 1973, several legal scholars have followed in his footsteps, venturing into literature (broadly defined to include novels, plays, poems, short stories, essays, and so on) to make sense of legal culture and legal texts. Some of the resulting scholarship has been quite good — some, however, more than slightly wanting.

Shortly after White’s “overture,” the work of literary PhDs like Robert Weisberg (PhD, English, 1971, Harvard University; JD, 1979, Stanford University), Richard H. Weisberg (PhD, French and comparative literature, 1970, Cornell University; JD, 1974, Columbia University), and, among others, Stanley Fish (PhD, English, 1962, Yale University) lent credibility to a field seen as dubious by law-school deans and territorial literature professors.[30] Today the movement seems to be picking up, not losing, momentum, in part due to the interdisciplinary nature of the project and in part due to the literati heavyweights who have used the movement as an opportunity to enlarge their celebrity status (to say nothing of their salaries).

The vast array of Shakespeare-focused works that flew under the banner of law and literature during the 1970s, ’80s, and ’90s actually undermined the entire field. Titles like Michael Richmond’s “Can Shakespeare Make You a Partner?” (1989)[31] signaled a practical but nonscholastic rationale for lawyers to turn to Shakespeare’s texts. Works most commonly addressed during this period include The Merchant of Venice, King Lear, Hamlet, and Measure for Measure.[32] In the rush to canonize Shakespeare in this budding genre that sought to include humanities texts in professional schools, even the conspiracy theories of a Supreme Court justice, John Paul Stevens, became authoritative readings.[33] Stevens is not the only Supreme Court justice with an opinion on the Shakespeare authorship debate, as the following chart by the Wall Street Journal[34] makes clear:

Shakespeare’s Court
The Supreme Court on the likely author of Shakespeare’s plays:
Active Justices
Roberts, Chief Justice No comment.
Stevens Oxford
Scalia Oxford
Kennedy Stratford
Souter “No idea.”
Thomas No comment.
Ginsburg “No informed views.”*
Breyer Stratford
Alito No comment.

*Justice Ginsburg suggests research into alternate candidate, Florio.
Retired Justices
O’Connor Not Stratford
Blackmun* Oxford
Brennan* Stratford

*Deceased

That Supreme Court justices have weighed in on Shakespeare’s authorship is more a study in itself and less a constructive contribution to Shakespeare scholarship. Not long after Stevens’s law-review article, at any rate, some creative attempts to render the Shakespeare as lawyer or other conspiracy theories surfaced. Law professor James Boyle, for instance, penned a novel, The Shakespeare Chronicles (2006),[35] dealing with the obsessive search for the “true” author of Shakespeare’s works. I suspect that Boyle would admit that The Shakespeare Chronicles, being fiction, does not represent scholarship, even if its production required rigorous scholarly research. Read the rest of this entry »

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Liberty and Shakespeare, Part One

In Arts & Letters, Humanities, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Shakespeare, Western Civilization on May 17, 2012 at 7:51 am

Allen Mendenhall

The following essay originally appeared here on Mises Daily.

In an October 2002 article in the New York Times, “Next on the Syllabus, Romeo v. Juliet,” Adam Liptak investigates the curious if questionable move to install literary texts in law-school curricula. Liptak’s opening lines betray his skepticism:

The fact [that Kafka was a lawyer] got the discussion started on a recent afternoon in a sunny seminar room at the New York University School of Law, where 17 law students and 2 professors gather every week for a sort of book club, for credit, in a class called Law and Literature.”[1]

Liptak’s likening of the class to a book club, quickly followed by his strategic comma usage setting off the phrase “for credit,” implies that, in effect, the course is more about enthusiasm than scholarship. How could the activities of book clubbers, Liptak seems to suggest, merit course credit in professional school? Liptak implicitly raises an even greater question: Does literature matter to the so-called “real” world?

In arguing for the inclusion of humanities courses in law school curricula, law-and-literature professors have had to answer that question. They have convinced professional school deans and administrators that literature is important and relevant to actual problems. The turn to political criticism among English faculty is also a move to show that literature has some practical bearing beyond entertainment or leisure. As humanities programs lose funding and students while law-and-literature faculty, courses, conferences, and journals proliferate, it bears asking whether law-and-literature adherents have done a better job persuading university officials that literature is socially significant.

Nearly every Anglo-American law school offers a course called Law & Literature. Nearly all of these courses assign one or more readings from Shakespeare’s oeuvre. Why study Shakespeare in law school? That is the question at the heart of these courses. Some law professors answer the question in terms of cultivating moral sensitivity, fine-tuning close-reading skills, or practicing interpretive strategies on literary rather than legal texts. Most of these professors insist on an illuminating nexus between two supposedly autonomous disciplines. The history of how Shakespeare became part of the legal canon is more complicated than these often defensive, syllabus-justifying declarations allow.

This essay examines the history of Shakespeare studies vis-à-vis legal education. It begins with early law-and-literature scholarship, which focused on Shakespeare’s history or biography — speculating as it did about whether Shakespeare received legal training or became a lawyer — and concludes with recent law-and-literature scholarship treating Shakespeare as a source of insight for law students and lawyers. Early law-and-literature scholarship on Shakespeare anticipated new-historicist theory. More recent law-and-literature work, with its turn to presentism, seems in lockstep with current Shakespeare studies. In law-and-literature classrooms, Shakespeare is more fashionable (like a hobby) than scholarly (like a profession). But law-and-literature scholarship on Shakespeare represents high-caliber work based on interdisciplinary research and sustained engagement with legal and literary texts.

This essay concludes with a note about the direction of the university in general and of the law-and-literature movement in particular. My closing argument is, I admit, tendentious. It raises issues usually raised by confrontational academics and suggests remedies for what William M. Chace has called “the decline of the English Department”[2] or what Harold Bloom has called “Groupthink” in “our obsolete academic institutions, whose long suicide since 1967 continues.”[3] If Chace and Bloom are right about a decline in academic standards — evidence shows that they are at least right about a decline in the number of English majors — then the fate of literary studies seems grim. Nevertheless, Chace and Bloom overlook the migration of literature professors into American law schools, a phenomenon that has not received enough attention.

One aspect of this phenomenon is the migration of students from the humanities to professional schools. I have known students who hoped to attend graduate school in the humanities but quite understandably viewed that route as impractical and went to law school instead. A positive result of this trend is that many law students are open to the idea of law and literature and find luminaries like George Anastaplo or Stanley Fish more interesting than other law professors. The final comments of this essay will address the strange exodus of literary scholars into professional schools, which pay more money and arguably provide vaster audiences and readership, more generous funding opportunities, and reduced teaching loads.

Perhaps more than other literary disciplines, save for cultural studies, Shakespeare studies has moved into the realm of interdisciplinarity, albeit without large contributions from scholars outside of literature departments. The law-and-literature field would have perished without the expertise of literature professors; likewise, Shakespeare studies, if it continues down the path of politics and cultural criticism, will perish without the expertise of economists, political scientists, and law professors, whose mostly non-Marxist ideas, when pooled with the ideas of the literature scholars, might fill out a space for interesting scholarship and redeem the interdisciplinary label. Information sharing is especially crucial for literature scholars who, in order to examine the history of Shakespeare in American culture, have turned to practices and methods traditionally reserved for other disciplines. In this respect, the direction of Shakespeare studies is representative of the direction of the humanities in general.

It may be possible to overcome disciplinary boundaries while recognizing the importance of disciplinary expertise. For understandable reasons, conservative literary critics decry political trends in current literary theory. What these critics ought to decry, though, is the nature of the political trends rather than political trends themselves. What if, instead of Marxist or quasi-Marxist paradigms, literary critics adopted the theories of free-market economics?

Adherents of law and literature unwittingly have carved out an approach to literary studies that jettisons Marxism and quasi Marxism but that retains civic goals. Law and literature cuts across labels like “conservative” and “liberal.” It demonstrates how professional or vocational studies are incomplete without teachings in liberal arts. At a time when antitraditional, quasi-Marxist ideologies have taken over graduate programs in literature, and when humanities funding and enrollment are wanting, the burgeoning law-and-literature courses offer an avenue for restoration of literary study with a civic focus. Read the rest of this entry »

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“Gone,” Edited with Photography by Nell Dickerson

In Arts & Letters, Book Reviews, History, Humanities, Nineteenth-Century America, Southern History, Southern Literary Review, The South, Writing on May 9, 2012 at 7:45 am

Allen Mendenhall

The following review originally appeared here in the Southern Literary Review.

I’ve always maintained a spectator’s curiosity in the rituals and practices of photography.  I can’t take a good picture, no matter which side of the camera I’m on, but I appreciate the idea of reducing the world to a more manageable form, something I can look at and admire without getting overwhelmed by the sheer magnitude and kinetics of it all.

I used to have a friend who was a photographer, and I would watch her take pictures.  She tried, once or twice, to teach me the nuances and particulars of photography, but I’m too proud to fail at new activities, so I strive never to undertake them.

Photographs are, folks say, moments stuck in time.  That makes them especially melancholy if their subjects, as it were, are decaying, rotting, or dying.  That’s what I realized when I leafed through the pages of Gone, a brilliant, conversation-starting, coffee-table book bearing the subtitle “A Heartbreaking Story of the Civil War,” and the sub-sub-title “A Photographic Plea for Preservation.”

Gone makes history even as it documents history.  Its images of antebellum Southern churches, plantations, and homes—some dilapidated, some just barely restored—ought to remind Southerners of the need for preserving the finest monuments of, and to, our complicated history.

That the photographer is Nell Dickerson, cousin to the late, great historian and novelist Shelby Foote, who needs no introduction to readers of this publication—although we editors have given him one—only adds a sense of authenticity to this project.  It’s as if in image and word and authorial kin, the book is tied to a past that struggles, and fails, to remain present; and it’s in that failing that the book achieves its most meaningful and poignant expression.

We Southerners place a premium on the fixed, the immutable, the known, perhaps because we understand that the things we value—family, hearth, home, community, place, religion—are bound to change.  We mourn change as we mourn loss, because all change entails loss, and it’s our tendency to mourn that gives us a unique, constructive identity.

We define ourselves as a people who have lost, or have lost something.  It’s a position that doesn’t survive interrogation, but there it is, a tragic ethos (and, for that matter, pathos) that we hope will stay the same when all else is, if not different, then almost unfamiliar.  Almost. Read the rest of this entry »

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Some Poetry by Oliver Wendell Holmes, Jr.

In Arts & Letters, Creative Writing, Humanities, Law, Law-and-Literature, Oliver Wendell Holmes Jr., Poetry, Writing on May 2, 2012 at 8:00 am

Allen Mendenhall

The following lines come from two dissents by Oliver Wendell Holmes, Jr.  I have rendered the lines in poetic form to suggest that Holmes’s writing is poetic, perhaps even inspired by Modern American poets such as William Carlos Williams.

Black & White Taxi & Transfer Co. v. Brown & Yellow Taxi & Transfer Co.[1]

A Poem[2] (1928)

It is very hard to resist the impression

that there is one august corpus

to understand which clearly is the only task

of any Court concerned.

If there were such a transcendental body of law

outside of any particular State

but obligatory within it unless and until changed by statute,

the Courts of the United States might be right in using

their independent judgment

as to what it was.

But there is no such body of law.

The fallacy and illusion that I think exist

consist in supposing that there is this outside thing to be found.

Law is a word used with different meanings,

but law in the sense in which courts speak of it today

does not exist

without some definite authority

behind it.

 

Gitlow v. New York[3]

A Poem[4] (1925)

Every idea

is an incitement.

It offers itself for belief

and if believed

it is acted on

unless some other belief

outweighs it

or some failure of energy

stifles the movement

at its birth.

The only difference

between the expression

of an opinion and an incitement

in the narrower sense

is the speaker’s enthusiasm

for the result.

Eloquence may set fire

to reason.

But whatever may be thought

of the redundant discourse

before us

it had no chance of starting

a present conflagration.

 

 

[1] See 276 U.S. 518 (1928) (Holmes, dissenting).

[2] My addition.

[3] See 268 U.S. 652 (1925) (Holmes, dissenting).

[4] My addition.