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Archive for July, 2012|Monthly archive page

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Unraveling

In Arts & Letters, Creative Writing, Creativity, Law, Literature, Writing on July 27, 2012 at 8:45 am

Rose Auslander is a partner at a Wall Street law firm and Poetry Editor of Folded Word Press. Co-editor of the Twitter anthology On A Narrow Windowsill, Rose has read her poems on NPR; her poem “For You Mothers” received a Pushcart nomination; “Oh My” received a Best of the Net nomination. She is a Regular Contributor to Referential Magazine, and her work appears in cur-ren-cy, Right Hand Pointing, Cyclamens and Swords, The Dead Mule, and Red Dirt Review. And she blogs!

The following excerpt, which first appeared here in The Mom Egg, is part of Rose’s upcoming memoir, A Pencil on the Ceiling, about surviving as a pregnant first-year law student nursing her way through her diploma

My infant, my daughter, my beautiful red-blond, blue-eyed child, lies in my arms, in my bed.  An unseasonably cold September afternoon, raining, chill, the chill that seeps into a person’s veins like formaldehyde.  My three-month-old daughter sleeps in my arms; my poor, embalmed arms feel nothing.

I wrap up in the afghan I crocheted for her, the yarn I worked into granny square by square, month after pregnant month, obsessively, mathematically, finding new permutations of pastel blue, pink, yellow and green to draw through into white, infinite borders of white.  I sit wrapped in yarn, unraveling.

How did I ever think I could start with yarn and crochet a garden of colors for a baby?

If only I could sleep, sleep . . .

No, study first. 

Law school.  How did I ever think I could get through law school with a baby at home?

A pile of case books rests on the pillow next to my infant daughter, next to markers of neon blue, pink, yellow and green, and pencils for thoughts, all for my numb hands to try to draw through into white, infinite pages of white.

Come on, just study. 

Or at least color:  Blue for facts (what happened in the world to cause the dispute), pink for procedural history (what happened with the case in the courts), yellow for the holding (what the court decided), green for what I can’t understand.

I drift off into National Business Lists, Inc. v. Dun & Bradstreet, Inc., 552 F. Supp. 89 (N.D. Ill. 1982), sleepily coloring in facts like:  “The customer does not itself receive much of the information contained in the computer data base.”  Feeling much like that customer, it takes me forever to get to the holding, and by that time, I’ve forgotten what the case was about.  I’m stranded somewhere in endless fields of green.

Hoping somehow to get through the hundreds of assigned pages, I try to read cases while holding baby Freddie, nursing her, even changing her.  But I swear, each time she nurses herself to sleep, she sucks more of my brain cells out with the milk.  And the milk/ammonia scent?  A knockout drug for those of us who’ve been staying up until 2 a.m. each night reading cases, and getting up again at 5 a.m. to nurse a baby-who-will-not-sleep.

Why won’t she let me sleep?

By 3 a.m., I put down the books, and close my eyes.  There are still endless unread pages of unintelligible heretofores, theretofores, therefors, and wherefores in every subject.  If I can’t get my brain back from wherever it has gone, I’ll never get to  my environmental law reading, where I’m already dangerously behind.

How did I ever think marking up cases in colors would somehow turn me into a lawyer?

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Joyce Corrington Publishes You Trust Your Mother

In Arts & Letters, Creative Writing, Fiction, Humanities, News and Current Events, News Release, Novels, Writing on July 23, 2012 at 8:45 am

Allen Mendenhall

Joyce Corrington, a friend and supporter of this site (see here, here, and here), has just released the final installment of the New Orleans mystery series begun by her and her late husband John William Corrington.  Learn more about this book, You Trust Your Mother, at Joyce’s website.

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Abolish the Bar Exam

In America, American History, Arts & Letters, Austrian Economics, History, Humanities, Law, Libertarianism, Nineteenth-Century America on July 20, 2012 at 8:45 am

Allen Mendenhall

The following piece first appeared here at LewRockwell.com.

Every year in July, thousands of anxious men and women, in different states across America, take a bar exam in hopes that they will become licensed attorneys. Having memorized hundreds if not thousands of rules and counter-rules – also known as black letter law – these men and women come to the exam equipped with their pens, laptops, and government-issued forms of identification. Nothing is more remote from their minds than that the ideological currents that brought about this horrifying ritual were fundamentally statist and unquestionably bad for the American economy.

The bar exam is a barrier to entry, as are all forms of professional licensure. Today the federal government regulates thousands of occupations and excludes millions of capable workers from the workforce by means of expensive tests and certifications; likewise various state governments restrict upward mobility and economic progress by mandating that workers obtain costly degrees and undergo routinized assessments that have little to do with the practical, everyday dealings of the professional world.

As a practicing attorney, I can say with confidence that many paralegals I know can do the job of an attorney better than some attorneys, and that is because the practice of law is perfected not by abstract education but lived experience.

So why does our society require bar exams that bear little relation to the ability of a person to understand legal technicalities, manage case loads, and satisfy clients? The answer harkens back to the Progressive Era when elites used government strings and influence to prevent hardworking and entrepreneurial individuals from climbing the social ladder.

Lawyers were part of two important groups that Murray Rothbard blamed for spreading statism during the Progressive Era: the first was “a growing legion of educated (and often overeducated) intellectuals, technocrats, and the ‘helping professions’ who sought power, prestige, subsidies, contracts, cushy jobs from the welfare state, and restrictions of entry into their field via forms of licensing,” and the second was “groups of businessmen who, after failing to achieve monopoly power on the free market, turned to government – local, state, and federal – to gain it for them.”

The bar exam was merely one aspect of the growth of the legal system and its concomitant centralization in the early twentieth century. Bar associations began cropping up in the 1870s, but they were, at first, more like professional societies than state-sponsored machines. By 1900, all of that changed, and bar associations became a fraternity of elites opposed to any economic development that might threaten their social status.

The elites who formed the American Bar Association (ABA), concerned that smart and savvy yet poor and entrepreneurial men might gain control of the legal system, sought to establish a monopoly on the field by forbidding advertising, regulating the “unauthorized” practice of law, restricting legal fees to a designated minimum or maximum, and scaling back contingency fees. The elitist progressives pushing these reforms also forbade qualified women from joining their ranks.

The American Bar Association was far from the only body of elites generating this trend. State bars began to rise and spread, but only small percentages of lawyers in any given state were members. The elites were reaching to squeeze some justification out of their blatant discrimination and to strike a delicate balance between exclusivity on the one hand, and an appearance of propriety on the other. They made short shrift of the American Dream and began to require expensive degrees and education as a prerequisite for bar admission. It was at this time that American law schools proliferated and the American Association of Law Schools (AALS) was created to evaluate the quality of new law schools as well as to hold them to uniform standards.

At one time lawyers learned on the job; now law schools were tasked with training new lawyers, but the result was that lawyers’ real training was merely delayed until the date they could practice, and aspiring attorneys had to be wealthy enough to afford this delay if they wanted to practice at all.

Entrepreneurial forces attempted to fight back by establishing night schools to ensure a more competitive market, but the various bar associations, backed by the power of the government, simply dictated that law school was not enough: one had to first earn a college degree before entering law school if one were to be admitted to practice. Then two degrees were not enough: one had to pass a restructured, formalized bar exam as well. Read the rest of this entry »

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Law in Melville and Hawthorne

In America, American History, Arts & Letters, Historicism, History, Humanities, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Nineteenth-Century America, Novels, Writing on July 11, 2012 at 8:45 am

Allen Mendenhall

Law was a common trope in the writing of nineteenth century American authors.  The jurist Roscoe Pound referred to nineteenth century America as a “frontier society” that was struggling to define what law was.  Justice John Marshall was carving out the jurisdiction of the nation’s high court, even as Andrew Jackson challenged Marshall’s authority to do so.  (Jackson supposedly said, in regard to Worcester v. Georgia, that Marshall had made his decision, “now let him enforce it.”)  American jurisprudents were seeking to reconcile the contradictions between liberty and equality on the one hand—the ideals of the revolutionary generation—with the peculiar institution of slavery on the other.  The ethos of republicanism and the ideal of open discourse clashed with the legislative attempts among the Southern states to resurrect Roman code to validate slave laws, even as the judiciary, on all levels and in all states, attempted to incorporate British common law into a new setting with unique problems.  In short, law was in flux during the nineteenth century in America, and writers like Melville and Hawthorne picked up on this problem and gave it unique and sometimes troubling articulation in their literature.

The “facts” in Benito Cereno are strikingly similar to the facts in one of America’s most memorable cases: U.S. v. The Amistad, in which John Quincy Adams, among others, served as an attorney.  In both “cases,” slaves took over a slave ship, killed some of their white captives, and demanded that the remaining white shipmen return the boat to Africa.  Rather than doing that, however, the white shipmen steered a path toward America, where the unsuspecting crew of another ship, sensing something wrong, came to assist.  These fact patterns raise sensitive and disturbing questions about the law.  What is justice?  How should it be determined?  Which party is right, and what does it mean to be right or to have rights?  For that matter, what is the law to begin with?

In Benito Cereno, Cereno is the captain of the ship bearing slaves, and it is from Delano’s perspective that we learn, gradually, that a slave revolt has occurred and that Cereno is being held captive by Africans.  Delano is the captain of a different ship who has come aboard Cereno’s ship to assist Cereno’s apparently distressed crew.  The leader of the slave revolt, Babo, himself a slave, is always by Cereno’s side, thereby giving Delano the impression that Cereno has a loyal servant.  What Delano eventually discovers is that the slaves have spared the lives of only Cereno and a few other whites in order that these whites return the ship to Africa.

In Amistad as in Benito Cereno, the African slaves had been removed from their homeland, without their consent, and taken to a foreign land among alien peoples for the sole purpose of perpetual enslavement.  On the other hand, the white shipmen had, it could be argued, complied with the law of the sea in conducting these actions, and they were murdered by mutinying slaves.  The problem here is that neither side seems to represent an unquestionably moral or obviously right position.  Slavery is evil, but so is murder.  Melville, perhaps realizing the literary possibilities created by this tension, subjects this challenging set of circumstances to rigorous interrogation by way of a captivating narrative. Read the rest of this entry »

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What They Left, Part Two

In Arts & Letters, Creative Writing, Fiction, Humanities, Short Story, Writing on July 6, 2012 at 8:45 am

A.G. Harmon is a professor at The Catholic University of America Columbus School of Law.  He received his J.D. from The University of Tennessee, his M.A. from The University of New Hampshire, and his Ph.D. in English from The Catholic University of America.  A nominee for The Pushcart Prize in the essay, he was a 1998-1999 Richard Weaver Graduate Fellow and winner of the 1995 Glen Writers Fellowship.  He received the 1994 Milton Center Postgraduate Writing Fellowship and was a Walter E. Dakin Fellow at the Sewanee Writers’ Conference in 2003. His novel A House All Stilled (The University of Tennessee Press, 2002) was awarded The Peter Taylor Prize for the Novel in 2002 and was nominated for the Virginia Literary Prize and the Pen-Hemingway Award. His novel Fortnight was the runner-up for The William Faulkner Prize for the Novel in 2007. His book on the law in Shakespeare, Eternal Bonds, True Contracts: Law and Nature in Shakespeare’s Problem Plays, was published by State University of New York Press in 2004.

The following story first appeared in The Bellingham Review, Volume XXIX, no. 1, Issue 57 (2006) and is reprinted with express permission from the author.

…continued from part one….

“You sell car parts—and shit like that?” the policeman had asked. He leaned against the iron post that held up the front porch.

“That’s right.”

“You own that junk stand? Up there on the road?

He was fat and sweaty and smelled of green after-shave. He chewed stick after stick of gum. Another policeman, bony, with a mustache as thin as a boy’s, sat on the front step. He dug dog shit from the soles of his patent leather shoes with a piece of tree bark.

“I sell parts,” he had answered.

“Must be doing pretty good, if you’re this busy,” the fat one said.

“It’s never too good.”

“Well, must be. You were there instead of here.”

He unwrapped the foil from a white stick of gum—spearmint—and shoved it into his full mouth. “Why’d you leave him, in the state he was in?”

“I have to work.”

The fat man frowned, squinted. “He stays—stayed—here while you were at work?”

“Yes.”

“You couldn’t get nobody to stay with him? In the state he’s in?”

“No.”

The man popped his gum. “How long did he stay alone?”

“‘Til I got done.” Read the rest of this entry »

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What They Left, Part One

In Arts & Letters, Creative Writing, Fiction, Humanities, Short Story, Writing on July 5, 2012 at 8:45 am

A.G. Harmon is a professor at The Catholic University of America Columbus School of Law.  He received his J.D. from The University of Tennessee, his M.A. from The University of New Hampshire, and his Ph.D. in English from The Catholic University of America.  A nominee for The Pushcart Prize in the essay, he was a 1998-1999 Richard Weaver Graduate Fellow and winner of the 1995 Glen Writers Fellowship.  He received the 1994 Milton Center Postgraduate Writing Fellowship and was a Walter E. Dakin Fellow at the Sewanee Writers’ Conference in 2003. His novel A House All Stilled (The University of Tennessee Press, 2002) was awarded The Peter Taylor Prize for the Novel in 2002 and was nominated for the Virginia Literary Prize and the Pen-Hemingway Award. His novel Fortnight was the runner-up for The William Faulkner Prize for the Novel in 2007. His book on the law in Shakespeare, Eternal Bonds, True Contracts: Law and Nature in Shakespeare’s Problem Plays, was published by State University of New York Press in 2004.

The following story first appeared in The Bellingham Review, Volume XXIX, no. 1, Issue 57 (2006) and is reprinted with express permission from the author. 

What They Left

Each call stood out from the next: a soft moan, a low horn, rising. The man’s head lifted an inch. His eyes wrinkled at the corners. His tongue touched the top of his palate, as if he smelled fire.

There was nothing to keep him from his work except these sounds, and even they only made him pause for a moment—turn small, keen eyes toward the line of hills, colored black in the last orange light, from which the sounds seemed to come. Then he returned to his labor.

A pen-light hung from the raised hood of the car’s engine, where his hands—the knuckles scabbed and some bleeding—toiled inside the motor. His flesh was raw and cracked and chapped from too much wind, too much weather without gloves, too little idleness.

He had lived past his middle age at the end of this tree-lined road. He had cut the way himself, a narrow alley leading from his back door, through the rear of his property, and ending at his store on the highway. There he sold old things, used things, gathered together by function, then by size, then by cost. Besides him, the only people that used the road were those who abandoned things alongside it. He did not know when it had become a castaway point, but it had happened slowly, and he had noticed it, slowly. After a time, as he made his way home, he began to find iceboxes, dishwashers, gates, air conditioners, lengths of fence, rolls of barbed wire. In the end, weeds took them.

Sometimes he would stop to see if he wanted any of the discarded things for himself—to salvage, reclaim, sell. If anything could be saved, he would slip back at night with a pulley and tackle, winch it against a tree, then slide what he wanted up from the ditch. Sometimes people got there before him though, so he had to work fast. Other times people took back what they had left. Once, at his store, a man claimed a tiller that had taken three days to fix:

“This is mine,” the man had said, his eyes bright, sharp. “I can tell.”

He shook his head, widened his stance so that his body stood at an angle to the other.

“I found it on the road.”

“It’s mine.”

“Not now.”

The other had placed his hand on the plastic grip, leaned over the top of the thing, glared: “You stole it. Prove you didn’t.”

So he had learned. He had to be careful of what he touched. He had to change things, just enough.

This time, though, they had worked too quickly, had been interrupted. He himself might have surprised them, coming down the road. He was thin, but tall, so his feet hit the earth hard and loud as he walked, grinding in the chert. They could have heard him a long way off. Nothing else accounted for how much they had left. The stereo had been slipped out, and some of the engine broken free, but he could work with what remained. It lay, piece by piece, cupped inside his hands; cold and slick and greasy; with his tools, it could be made to tick and turn warm.

It was only a day or so there; not even that. It had come to his notice that morning, as he walked to work. He might have overlooked it, had not the first of the sun picked out lights in the black paint. The car had been left off the shoulder, down a bank and beside a stand of pines.

His wrench slid over a bolt deep beneath the battery plate. It was a tight fit, but it caught the bolt’s angles. After several yanks, the wrench fell into the familiar release and give of loosening. If all went well, the engine would start soon, with new plugs and a new fan for the radiator. He would have to decide what to do with it then, though. The law would come into play. He could not say how, but he would have to decide.

His cap made his head hot. He pulled his hands out of the body and pushed his hat’s bill back from his brow. He thought for a moment and ran his fingers over whiskers, three days grown. He raked them back and forth. The bite warmed his face.

There was more to do, but not now. In the morning, then.

It was a small climb up from the stash of trees back to the road. He picked up a bucket of greasy tools, held the light between his teeth, and clawed at the grass with his free hand to keep his purchase. Once there, he took the light from his mouth and shined it in the direction he would take. The beam bobbed before him as he walked—a soft, collapsing tunnel through the dark. The tools jangled in the bucket.

The sounds returned: Two. Three. Silence.

He marched on through three more calls, and rests, and calls, before he stopped and spun toward them, swiveling on his down heel. He stared into the woods for a moment—a gray, ashen blue—then commenced to walk. He kept up the same stride as before, but with the hills facing.

There was no point going on until his mind was free. They might have come back—keys in hand. And he would not surrender his work to theirs. It was no more theirs than his.

He stopped to glance back at the car, then slowly ran his light down its length, fender to bumper, marking the body.

It was almost lost in the dark, now. It would take a man with a light, now.

To find the sounds he would have to crawl down the opposite bank, which fell off at a stiff grade. The light and the bucket together would be too much to carry. He would need a free hand to compensate, so he set the bucket down and drew out a hammer by its claw. He hefted it twice, then once more—once for each sound he had heard—and sat himself on the bank’s edge. He went belly first, sliding, the damp ground pressing through his clothes, kissing at his skin. Read the rest of this entry »