This poem first appeared here in The Aroostook Review.
Photograph in a Bar, Washington, D.C.
The guy in the foreground is Quint
my friend tells me
pointing to and holding
a photograph at arm’s length.
Behind Quint, on the table
two Bud Light bottles sweat
in sticky puddles, framing
a fluorescent margarita.
In Quint’s hand: a cell phone.
There’s a purse on the table
no girl to claim it
just an empty barstool
and silhouettes
of nameless faces
filling dark spaces.
We do well to remember the consequences visited upon Augustine when, as a teenager, he succumbed to sin and shook a person’s pear tree in order to steal the fallen pears—not because he was hungry or in need, but because he delighted in the sin. “To shake and rob,” he said, “some of us wanton young fellows went, late one night (having, according to our disgraceful habit, prolonged our games in the streets until then), and carried away great loads, not to eat ourselves, but to fling to the very swine, having only eaten some of them; and to do this pleased us all the more because it was not permitted.”[1]
The mature Augustine, looking back on this event, acknowledged that theft violates and is punished by law—not just human law, he adds, pursuant to the teachings of Jesus, but the law written on men’s hearts. He relates that he suffered (and suffers) from shame and regret as a result of this sin, and his shame or regret is punishment that humans cannot implement ourselves; it is punishment that we must rely on God to summon forth in our hearts and minds. “It is foul,” Augustine says of his sin, adding, “I hate to reflect on it. I hate to look on it.”[2] One wonders whether human punishment based on human law can ever have the same long-lasting effect as divine punishment for violating the law written on human hearts.
Augustine does suggest that there is a law of man and a law of God and that he violated both; the consequences for violating man’s law would have been different from the consequences of violating God’s law, especially insofar as his punishment may not be of this world, although the Christian believer in the triune God must acknowledge that God’s sovereignty and sovereign law precede and have jurisdiction over all men’s actions, for God does not let anything come to pass that he does not know about or have control over.
Simon Stern, who is an associate professor at the University of Toronto Faculty of Law, has posted the following abstract to the Social Science Research Network (SSRN). The paper, which will interest readers of this site, will be published in the Oxford Handbook of Criminal Law.
This book chapter discusses the use of literary material as a means of studying criminal law. The chapter provides an overview on various methods of combining legal and literary materials (law in literature, literature in law, law as literature, legal aesthetics) and offers two case studies (Susan Glaspell’s “A Jury of Her Peers” and Robert Louis Stevenson’s The Strange Case of Dr. Jekyll and Mr. Hyde) to show how literature can open up questions both about substantive criminal law doctrines and also about the grounds on which those doctrines are applied. Along the way, the discussion shows how various scholars of criminal law, such as Nicola Lacey and Anne Coughlin, have raised questions that have also provoked the interest of literary scholars such as Dorrit Cohn and Blakey Vermeule.
The chapter also serves as a bibliography for scholars seeking further resources that examine criminal law through the lens of literature. These resources include bibliographies of primary texts (such as crime-based fiction, “dying confessions” circulated at executions, and movies), secondary texts (discussing law and criminal behavior in relation to fiction, drama, and poetry), and web-based resources (such as the Old Bailey Sessions Papers Online). In that spirit, the chapter also discusses some research that is often overlooked in discussions of criminal law and literature – such as Todd Herzog’s research on Weimar-era true-crime narratives that were created from actual case files; Jonathan Eburne’s research on crime in the work of the French surrealists; Lorna Hutson’s research on civic plots of detection in renaissance drama and their relation to the development of evidence law; and Lisa Rodensky’s work on narrative modes in Victorian fiction and their relation to the treatment of mens rea in contemporaneous legal thought.
My forthcoming book, Literature and Liberty: Essays in Libertarian Literary Criticism, is now available for pre-order here at Amazon.com or here at Rowman & Littlefield’s website. From the cover:
The economic theories of Karl Marx and his disciples continue to be anthologized in books of literary theory and criticism and taught in humanities classrooms to the exclusion of other, competing economic paradigms. Marxism is collectivist, predictable, monolithic, impersonal, linear, reductive — in short, wholly inadequate as an instrument for good in an era when we know better than to reduce the variety of human experience to simplistic formulae. A person’s creative and intellectual energies are never completely the products of culture or class. People are rational agents who choose between different courses of action based on their reason, knowledge, and experience. A person’s choices affect lives, circumstances, and communities. Even literary scholars who reject pure Marxism are still motivated by it, because nearly all economic literary theory derives from Marxism or advocates for vast economic interventionism as a solution to social problems.
Such interventionism, however, has a track-record of mass murder, war, taxation, colonization, pollution, imprisonment, espionage, and enslavement — things most scholars of imaginative literature deplore. Yet most scholars of imaginative literature remain interventionists. Literature and Liberty offers these scholars an alternative economic paradigm, one that over the course of human history has eliminated more generic bads than any other system. It argues that free market or libertarian literary theory is more humane than any variety of Marxism or interventionism. Just as Marxist historiography can be identified in the use of structuralism and materialist literary theory, so should free-market libertarianism be identifiable in all sorts of literary theory. Literature and Liberty disrupts the near monopolistic control of economic ideas in literary studies and offers a new mode of thinking for those who believe that arts and literature should play a role in discussions about law, politics, government, and economics. Drawing from authors as wide-ranging as Emerson, Shakespeare, E.M. Forster, Geoffrey of Monmouth, Henry Hazlitt, and Mark Twain, Literature and Liberty is a significant contribution to libertarianism and literary studies.
James Elkins of West Virginia University College of Law has edited Lawyer Poets and That World We Call Law (Pleasure Boat Studio, 2013), an anthology of poems about the practice of law. Professor Elkins has been the longtime editor of Legal Studies Forum. Contributors to the anthology include Lee Wm. Atkinson, Richard Bank, Michael Blumenthal, Ace Boggess, David Bristol, Lee Warner Brooks, MC Bruce, Laura Chalar, James Clarke, Martin Espada, Rachel Contreni Flynn, Katya Giritsky, Howard Gofreed, Nancy A. Henry, Susan Holahan, Paul Homer, Lawrence Joseph, Kenneth King, John Charles Kleefeld, Richard Krech, Bruce Laxalt, David Leightty, John Levy, Greg McBride, James McKenna, Betsy McKenzie, Joyce Meyers, Jesse Mountjoy, Tim Nolan, Simon Perchik, Carl Reisman, Charles Reynard, Steven M. Richman, Lee Robinson, Kristen Roedell, Barbara B. Rollins, Lawrence Russ, Michael Sowder, Ann Tweedy, Charles Williams, Kathleen Winter, and Warren Wolfson.
James Elkins
Professor of Law and Benedum Distinguished Scholar, West Virginia University College of Law
This poem originally appeared in The Echo.
Service in St. Paul’s
—London, 2003
Acrophobia turned
upside down:
fear floating away,
gravity deciding
to suddenly
give up.
There’s a dome
overhead, a glowing
Jesus over the altar,
and too much space
to pray
comfortably.
Imagination
among the scaffolding,
eye to eye with Joseph,
now falling facing up:
heaven does
not seem so high.
This is the story of America’s struggle to end slavery without destroying the union. The book deliberately focuses on the rhetoric of white male politicians and thus does not purport to tell the “whole” story, but only that part of the story which is most recoverable and hence most knowable. Many early 19th century politicians averred that the Northern textile industry, which was roughly as powerful as today’s oil industry, depended on Southern slavery. An industry with such power and control over the financial interests of the country can, Miller argues, cause social changes to come about more slowly. When talking about slavery, Miller submits, American politicians of the time had to deal with inherent contradictions in the American tradition: a nation that celebrated equality and the virtues of the “common man” had to come to terms with the fact that African slaves, officially excluded from citizenry, embodied the “common man” ideal but were not permitted to climb the social and economic ladder. Most politicians did not believe slavery could end abruptly but would end gradually as economic dependence turned elsewhere. Slavery went against all the principles and rhetoric of America’s founding documents, and yet there it was, a thriving and ubiquitous industry.
The book begins in 1835, when Congress deliberated over petitions to abolish slavery in the District of Columbia. Congress took on these petitions reluctantly, unwilling to address a contentious and divisive issue that would disrupt congressional and governmental harmony. Congress wished the issue would just go away—but realized that it could not. During this congressional session, most of the speechmaking came from proslavery Southerners, since Northern politicians were, generally, too afraid to take a stand one way or the other.
Major figures from this session include the following:
President Andrew Jackson
John Fairfield: Congressman from Vermont who introduces the petitions to abolish slavery in D.C.
Franklin Pierce: Eventually the fourteenth President, he is, at this time, serving in the U.S. House of Representatives. He is a Northerner with Southern sympathies.
James Henry Hammond: Congressman from South Carolina who opposed Fairfield and Adams.
John Quincy Adams: A former president (the nation’s sixth), he is, at this time, a U.S. Representative from Massachusetts.
Henry Laurens Pinckney: A Congressman from South Carolina who opposed Fairfield and Adams but who also did not get along with John C. Calhoun.
John C. Calhoun: A U.S. Senator from South Carolina, having resigned from the Vice Presidency.
Martin Van Buren: Eventually a U.S. President (the nation’s eighth), he is, at this time, the Vice President under Andrew Jackson.
James K. Polk: Eventually a U.S. President (the nation’s eleventh), he is, at this time, a member of the U.S. House from the State of Tennessee.
The debates in Congress were fueled by abolitionist literature (written by people like John Greenleaf Whittier, William Lloyd Garrison, and Elizur Wright, Jr.) and oration that maintained not only that slavery was wrong (as people had maintained for decades) but also that its demise was the nation’s highest priority. Congress could not “sit on its hands” while abolitionists protested and demanded change; it had to respond, albeit reluctantly, to an institution that many congressmen assumed was already doomed. The demise of slavery was supposed to be inevitable, according to the common logic, yet it persisted; therefore, the abolitionists forced Congress to address slavery, the demise of which, the abolitionists argued, was not as inevitable as people supposed.
The Senate also faced petitions. Senator Calhoun became the most colorful and powerful figure opposing these positions. Calhoun and his followers often employed “liberal” rhetoric on the Senate floor. Henry Laurens Pinckney authored the gag rule, which was an attempt to stop citizens from submitting antislavery petitions. (Calhoun despised Pinckney so much that he endorsed unionist candidates to take over Pinckney’s Congressional seat.) The gag rule was adopted by a 117-68 vote, thus suggesting that the nation was more united on the issue of slavery than popular thought maintains. The gag rule required congressmen to set aside slavery petitions immediately, without so much as printing them. John Quincy Adams would spend the following years in Congress battling the so-called gag rule.
At this point in the book, Adams becomes the central figure. Adams, then a distinguished ex-president, was in his 60s and 70s as he fought against the gag order. He maintained that not only abolitionists but also slaves could petition. Miller argues that this position shows the extent to which Adams was willing to risk his reputation and what was left of his career in order to stand up to the Southern gag order. Other congresspersons were slow to join Adams in his fight. During these debates, very little was said of African Americans, and most of the debates focused on the rights and roles of government and ignored the human persons that that government was supposed to serve and protect.
After Martin Van Buren became president, succeeding Andrew Jackson, he announced that he would veto any bill involving the issue of slavery in D.C. or the slave states. Nevertheless, the petitions continued to pour in. Adams himself began submitting petitions. The gag resolutions had to be passed each session, but a gag rule was announced in 1840 that, in essence, made the “gagging” permanent. Adams led the effort to rescind this rule. He grew closer and closer to the abolitionists as he precipitated disarray in the House. He also made several speeches despite threats against his life. Adams’s opponents tried to get the entire House to censure him, but they failed. Adams used the censure trials as an occasion to bring slavery to the forefront of Congressional debate. In 1844, Adams succeeded in having the gag rule abolished.
An earlier version of this essay appeared here at Fronch Porch Republic.
Remember the printed prose is always
half a lie: that fleas plagued patriots,
that greatness is an afterthought
affixed by gracious victors to their kin.
—John William Corrington
It was the spring of 2009. I was in a class called Lawyers & Literature. My professor, Jim Elkins, a short-thin man with long-white hair, gained the podium. Wearing what might be called a suit—with Elkins one never could tell—he recited lines from a novella, Decoration Day. I had heard of the author, John William Corrington, but only in passing.
“Paneled walnut and thick carpets,” Elkins beamed, gesturing toward the blank-white wall behind him, “row after row of uniform tan volumes containing between their buckram covers a serial dumb show of human folly and greed and cruelty.” The students, uncomfortable, began to look at each other, registering doubt. In law school, professors didn’t wax poetic. But this Elkins—he was different. With swelling confidence, he pressed on: “The Federal Reporter, Federal Supplement, Supreme Court Reports. Two hundred years of our collective disagreements and wranglings from Jay and Marshall through Taney and Holmes and Black and Frankfurter—the pathetic often ill-conceived attempts to resolve what we have done to one another.”
Elkins paused. The room went still. Awkwardly profound, or else profoundly awkward, the silence was like an uninvited guest at a dinner party—intrusive, unexpected, and there, all too there. No one knew how to respond. Law students, most of them, can rattle off fact-patterns or black-letter-law whenever they’re called on. But this? What were we to do with this?
What I did was find out more about John Willliam Corrington. Having studied literature for two years in graduate school, I was surprised to hear this name—Corrington—in law school. I booted up my laptop, right where I was sitting, and, thanks to Google, found a few biographical sketches of this man, who, it turned out, was perplexing, riddled with contradictions: a Southerner from the North, a philosopher in cowboy boots, a conservative literature professor, a lawyer poet. This introduction to Corrington led to more books, more articles, more research. Before long, I’d spent over $300 on Amazon.com. And I’m not done yet.
***
Born in Cleveland, Ohio, on October 28, 1932, Corrington—or Bill, as his friends and family called him—passed as a born-and-bred Southerner all of his life. As well he might, for he lived most of his life below the Mason-Dixon line, and his parents were from Memphis and had moved north for work during the Depression. He moved to the South (to Shreveport, Louisiana) at the age of 10, although his academic CV put out that he was, like his parents, born in Memphis, Tennessee. Raised Catholic, he attended a Jesuit high school in Louisiana but was expelled for “having the wrong attitude.” The Jesuit influence, however, would remain with him always. At the beginning of his books, he wrote, “AMDG,” which stands for Ad Majorem Dei Gloriam—“for the greater glory of God.” “It’s just something that I was taught when I was just learning to write,” he explained in an interview in 1985, “taught by the Jesuits to put at the head of all my papers.”
Bill was, like the late Mark Royden Winchell, a Copperhead at heart, and during his career he authored or edited, or in some cases co-edited, twenty books of varying genres. He earned a B.A. from Centenary College and M.A. in Renaissance literature from Rice University, where he met his wife, Joyce, whom he married on February 6, 1960. In September of that year, he and Joyce moved to Baton Rouge, where Bill became an instructor in the Department of English at Louisiana State University (LSU). At that time, LSU’s English department was known above all for The Southern Review (TSR), the brainchild of Cleanth Brooks and Robert Penn Warren, but also for such literary luminaries as Robert Heilman, who would become Bill’s friend.
In the early 1960s, Bill pushed for TSR to feature fiction and poetry and not just literary criticism. He butted heads with then-editors Donald E. Stanford and Lewis P. Simpson, who thought of the journal as scholarly, not creative, as if journals couldn’t be both scholarly and creative. A year after joining the LSU faculty, Bill published his first book of poetry, Where We Are. With only 18 poems and 225 first edition printings, the book hardly established Bill’s reputation as Southern man of letters. But it invested his name with recognition and gave him confidence to complete his first novel, And Wait for the Night (1964).
Bill and Joyce spent the 1963-64 academic year in Sussex, England, where Bill took the D.Phil. from the University of Sussex in 1965. In the summer of 1966, at a conference at Northwestern State College, Mel Bradford, that Dean of Southern Letters, pulled Bill aside and told him, enthusiastically, that And Wait for the Night (1964) shared some of the themes and approaches of William Faulkner’s The Unvanquished. Bill agreed. And happily.
***
Of Bill and Miller Williams, Bill’s colleague at LSU, Jo LeCoeur, poet and literature professor, once submitted, “Both men had run into a Northern bias against what was perceived as the culturally backward South. While at LSU they fought back against this snub, editing two anthologies of Southern writing and lecturing on ‘The Dominance of Southern Writers.’ Controversial as a refutation of the anti-intellectual Southern stereotype, their joint lecture was so popular [that] the two took it on the road to area colleges.”
In this respect, Bill was something of a latter-day Southern Fugitive—a thinker in the tradition of Donald Davidson, Allan Tate, Andrew Nelson Lytle, and John Crowe Ransom. Bill, too, took his stand. And his feelings about the South were strong and passionate, as evidenced by his essay in The Southern Partisan, “Are Southerners Different?” (1984). Bill’s feelings about the South, however, often seemed mixed. “[T]he South was an enigma,” Bill wrote to poet Charles Bukowski, “a race of giants, individualists, deists, brainy and gutsy: Washington, Jefferson, Madison, Jackson (Andy), Davis, Calhoun, Lee, and on and on. And yet the stain of human slavery on them.” As the epigraph (above) suggests, Bill was not interested in hagiographic renderings of Southern figures. He was interested in the complexities of Southern people and experience. In the end, though, there was no doubt where his allegiances lay. “You strike me as the most unreconstructed of all the Southern novelists I know anything about,” said one interviewer to Bill. “I consider that just about the greatest compliment anyone could give,” Bill responded.
While on tour with Williams, Bill declared, “We are told that the Southerner lives in the past. He does not. The past lives in him, and there is a difference.” The Southerner, for Bill, “knows where he came from, and who his fathers were.” The Southerner “knows still that he came from the soil, and that the soil and its people once had a name.” The Southerner “knows that is true, and he knows it is a myth.” And the Southerner “knows the soil belonged to the black hands that turned it as well as it ever could belong to any hand.” In short, the Southerner knows that his history is tainted but that it retains virtues worth sustaining—that a fraught past is not reducible to sound bites or political abstractions but is vast and contains multitudes.
***
In 1966, Bill and Joyce moved to New Orleans, where the English Department at Loyola University, housed in a grand Victorian mansion on St. Charles Avenue, offered him a chairmanship. Joyce earned the M.S. in chemistry from LSU that same year. By this time, Bill had written four additional books of poetry, the last of which, Lines to the South and Other Poems (1965), benefited from Bukowski’s influence. Bill’s poetry earned a few favorable reviews but not as much attention as his novels—And Wait for the Night (1964), The Upper Hand (1967), and The Bombardier (1970). Writing in The Massachusetts Review, Beat poet and critic Josephine Miles approvingly noted two of Bill’s poems from Lines, “Lucifer Means Light” and “Algerien Reveur,” alongside poetry by James Dickey, but her comments were more in passing than in depth. Dickey himself, it should be noted, admired Bill’s writing, saying, “A more forthright, bold, adventurous writer than John William Corrington would be very hard to find.”
Joyce earned her PhD in chemistry from Tulane in 1968. Her thesis, which she wrote under the direction of L. C. Cusachs, was titled, “Effects of Neighboring Atoms in Molecular Orbital Theory.” She began teaching chemistry at Xavier University, and her knowledge of the hard sciences brought about engaging conservations, between her and Bill, about the New Physics. “Even though Bill only passed high school algebra,” Joyce would later say, “his grounding in Platonic idealism made him more capable of understanding the implications of quantum theory than many with more adequate educations.”
By the mid-70s, Bill had become fascinated by Eric Voeglin. A German historian, philosopher, and émigré who had fled the Third Reich, Voegelin taught in LSU’s history department and lectured for the Hoover Institution at Stanford University, where he was a Salvatori Fellow. Voeglin’s philosophy, which drew from Friedrich von Hayek and other conservative thinkers, inspired Bill. In fact, Voegelin made such a lasting impression that, at the time of Bill’s death, Bill was working on an edition of Voegelin’s The Nature of the Law and Related Legal Writings. (After Bill’s death, two men—Robert Anthony Pascal and James Lee Babin—finished what Bill had begun. The completed edition appeared in 1991.)
By 1975, the year he earned his law degree from Tulane, Bill had penned three novels, a short story collection, two editions (anthologies), and four books of poetry. But his writings earned little money. He also had become increasingly disenchanted with the political correctness on campus:
By 1972, though I’d become chair of an English department and offered a full professorship, I’d had enough of academia. You may remember that in the late sixties and early seventies, the academic world was hysterically attempting to respond to student thugs who, in their wisdom, claimed that serious subjects seriously taught were “irrelevant.” The Ivy League gutted its curriculum, deans and faculty engaged in “teach-ins,” spouting Marxist-Leninist slogans, and sat quietly watching while half-witted draft-dodgers and degenerates of various sorts held them captive in their offices. Oddly enough, even as this was going on, there was a concerted effort to crush the academic freedom of almost anyone whose opinions differed from that of the mob or their college-administrator accessories. It seemed a good time to get out and leave the classroom to idiots who couldn’t learn and didn’t know better, and imbeciles who couldn’t teach and should have known better.
Bill joined the law firm of Plotkin & Bradley, a small personal injury practice in New Orleans, and continued to publish in such journals as The Sewanee Review and The Southern Review, and in such conservative periodicals as The Intercollegiate Review and Modern Age. His stories took on a legal bent, peopled as they were with judges and attorneys. But neither law nor legal fiction brought him fame or fortune.
So he turned to screenplays—and, at last, earned the profits he desired. Viewers of the recent film I am Legend (2007), starring Will Smith, might be surprised to learn that Bill and Joyce wrote the screenplay for the earlier version, Omega Man (1971), starring Charlton Heston. And viewers of Battle for the Planet of the Apes (1973) might be surprised to learn that Bill wrote the film’s screenplay while still a law student. All told, Bill and Joyce wrote five screenplays and one television movie. Free from the constraints of university bureaucracy, Bill collaborated with Joyce on various television daytime dramas, including Search for Tomorrow, Another World, Texas, Capitol, One Life to Live, Superior Court, and, most notably, General Hospital. These ventures gained the favor of Hollywood stars, and Bill and Joyce eventually moved to Malibu.
Bill constantly molded and remolded his image, embracing Southern signifiers while altering their various expressions. His early photos suggest a pensive, put-together gentleman wearing ties and sport coats and smoking pipes. Later photos depict a rugged man clad in western wear. Still later photos conjure up the likes of Roy Orbison, what with Bill’s greased hair, cigarettes, and dark sunglasses.
Whatever his looks, Bill was a stark, provocative, and profoundly sensitive writer. His impressive oeuvre has yet to receive the critical attention it deserves. That scholars of conservatism, to say nothing of scholars of Southern literature, have ignored this man is almost inconceivable. There are no doubt many aspects of Bill’s life and literature left to be discovered. As Bill’s friend William Mills put it, “I believe there is a critique of modernity throughout [Bill’s] writing that will continue to deserve serious attentiveness and response.”
On Thanksgiving Day, November 24, 1988, Bill suffered a heart attack and died. He was 56. His last words, echoing Stonewall Jackson, were, “it’s all right.”
This article appeared here in Pacific Standard.
Most attorneys are familiar with e-discovery, a method for obtaining computer and electronic information during litigation. E-discovery has been around a long time. It has grown more complex and controversial, however, with the rise of new technologies and the growing awareness that just about anything you do online or with your devices can be made available to the public. Emails, search histories, voicemails, instant messages, text messages, call history, music playlists, private Facebook conversations (not just wall posts)—if relevant to a lawsuit, these and other latent evidence, for better or worse, can be exposed, even if you think they’ve been hidden or discarded.
Anyone who has conducted or been involved with e-discovery realizes how much personal, privileged, and confidential information is stored on our devices. When you “delete” files and documents from your computer, they do not go away. They remain embedded in the hard drive; they may become difficult to find, but they’re there. Odds are, someone can access them. Even encrypted files can be traced back to the very encryption keys that created them.
E-discovery has been used to uncover registries and cache data showing that murderers had been planning their crimes, spouses had been cheating, perverts had been downloading illegal images, and employees had been stealing or compromising sensitive company data or destroying intellectual property. Computer forensics were even used to reveal medical documents from Dr. Conrad Murray’s computer during the so-called “Michael Jackson death trial.”
Computer forensics can teach you a lot about a person: the websites he visits, the people he chats with, the rough drafts he abandons, the videos he watches, the advertisements he clicks, the magazines he reads, the news networks he prefers, the places he shops, the profiles he views, the songs he listens to, and so on. It is fair to say that given a laptop hard drive, a forensic expert could nearly piece together an individual’s personality and perhaps come to know more about that person—secret fetishes, guilty pleasures, and criminal activities—than his friends and family do.
In light of this potential access to people’s most private activities, one wonders how long it will be until academics turn to computer forensics for research purposes. This is already being done in scientific and technology fields, which is not surprising because the subject matter is the machine and not the human, but imagine what it would mean for the humanities? If Jefferson had used a computer, perhaps we would know the details of his relationship with Sally Hemings. If we could get ahold of Shakespeare’s iPad, we could learn whether he wrote all those plays by himself. By analyzing da Vinci’s browsing history, we might know which images he studied and which people he interacted with before and during his work on the Mona Lisa—and thus might discover her identity.
There are, of course, government safeguards in place to prevent the abuse of, and unauthorized access to, computer and electronic data: the Wiretap Act, the Pen Registers and Trap and Trace Devices Statute, and the Stored Wired and Electronic Communication Act come to mind. Not just anyone can access everything on another person’s computer, at least not without some form of authorization. But what if researchers could obtain authorization to mine computer and electronic data for the personal and sensitive information of historical figures? What if computer forensics could be used in controlled settings and with the consent of the individual whose electronic data are being analyzed?
Consent, to me, is crucial: It is not controversial to turn up information on a person if he voluntarily authorized you to go snooping, never mind that you might turn up something he did not expect you to find. But under what circumstances could computer forensics be employed on a non-consensual basis? And what sort of integrity does computer or electronic information require and deserve? Is extracting data from a person’s laptop akin to drilling through a precious fresco to search for lost paintings, to excavating tombs for evidence that might challenge the foundations of organized religion and modern civilization, or to exhuming the bodies of dead presidents? Surely not. But why not?
We have been combing through letters by our dead predecessors for some time. Even these, however, were meant for transmission and had, to that end, intended audiences. E-discovery, by contrast, provides access to things never meant to be received, let alone preserved or recorded. It is the tool that comes closest to revealing what an individual actually thinks, not just what he says he thinks, or for that matter, how and why he says he thinks it. Imagine retracing the Internet browsing history of President Obama, Billy Graham, Kenneth Branagh, Martha Nussbaum, Salmon Rushdie, Nancy Pelosi, Richard Dawkins, Toni Morrison, Ai Weiwei, or Harold Bloom. Imagine reading the private emails of Bruno Latour, Ron Paul, Pope Francis, Noam Chomsky, Lady Gaga, Roger Scruton, Paul Krugman, Justice Scalia, or Queen Elizabeth II. What would you find out about your favorite novelists, poets, musicians, politicians, theologians, academics, actors, pastors, judges, and playwrights if you could expose what they did when no one else was around, when no audience was anticipated, or when they believed that the details of their activity were limited to their person?
This is another reason why computer and electronic data mining is not like sifting through the notes and letters of a deceased person: having written the notes and letters, a person is aware of their content and can, before death, destroy or revise what might appear unseemly or counter to the legacy he wants to promote. Computer and electronic data, however, contain information that the person probably doesn’t know exists.
More information is good; it helps us to understand our universe and the people in it. The tracking and amassing of computer and electronic data are inevitable; the extent and details of their operation, however, cannot yet be known. We should embrace—although we don’t have to celebrate—the technologies that enable us to produce this wealth of knowledge previously unattainable to scholars, even if they mean, in the end, that our heroes, idols, and mentors are demystified, their flaws and prejudices and conceits brought to light.
The question is, when will we have crossed the line? How much snooping goes too far and breaches standards of decency and respect? It is one thing for a person to leave behind a will that says, in essence, “Here’s my computer. Do what you want with it. Find anything you can and tell your narrative however you wish.” It is quite another thing for a person never to consent to such a search and then to pass away and have his computer scanned for revealing or incriminating data.
It’s hard to say what crosses the line because it’s hard to know where the line should be drawn. As Justice Potter Stewart said of hard-core pornography, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.” Once scholars begin—and the day is coming—hacking devices to find out more about influential people, the courts and the academic community will be faced with privacy decisions to make. We will have to ask if computer and electronic data are substantially similar to private correspondence such as letters, to balance the need for information with the desire for privacy, to define what information is “private” or “public,” and to honor the requests of those savvy enough to anticipate the consequences of this coming age of research.
Amid this ambiguity, one thing will be certain: Soon we can all join with Princess Margaret in proclaiming, “I have as much privacy as a goldfish in a bowl.” That is good and bad news.
The Literary Lawyer: A Forum for the Legal and Literary Communities 