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Allen Mendenhall Interviews Paul Goldstein About His Latest Novel, “Legal Asylum”

In Academia, Arts & Letters, Books, Creative Writing, Fiction, Humanities, Law, Law School, Law-and-Literature, Literature, Novels, Teaching, The Academy, Writing on March 1, 2017 at 6:45 am

Paul Goldstein is an expert on intellectual property law and the Stella W. and Ira S. Lillick Professor of Law at Stanford Law School. He is the author of an influential four-volume treatise on U.S. copyright law and a one-volume treatise on international property. He has also authored ten books including five novels. Some of his other works include Copyright’s Highway: From Gutenberg to the Celestial Jukebox, a widely acclaimed book on the history and future of copyright, and Intellectual Property: The Tough New Realities That Could Make or Break Your Business. Havana Requiem, his third novel, won the 2013 Harper Lee Prize for Legal Fiction.

Paul Goldstein

Paul Goldstein

AM:  Thanks for taking the time to do this interview. What has been your colleagues’ reaction to this satire? 

PG:  My colleagues are, by and large, a sturdy and good-natured lot, and most of the reactions I’ve received have been very positive. Several have told me that they actually found themselves laughing out loud while reading the book. Still, there are a couple of colleagues who I know have read the book, but who seem curiously silent, and avoid my glance in the hallways. Who knows what they’re thinking!

AM:  Were you afraid your colleagues might push back against the novel, seeing themselves in the characters?  

PG:  I decided at the outset not to make Legal Asylum a roman a clef—a genre that I find cowardly and mean-spirited, and that I put in the same category as practical jokes. At the same time, there are certainly recognizable types of legal academics in the book, and it’s been a good deal of fun talking with colleagues about which group they put themselves in—Poets, Quants or Bog Dwellers.

AM:  In an interview with Jon Malysiak, the director of Ankerwycke Books, you stated that you’d spent 50 years thinking about the absurd and eccentric features of legal education. What are some of these?

PG:  One absurdity of course is the grim-faced crusade of law school deans to secure for their institutions a higher and still higher slot in the US News law school rankings, or at least not to slip from their present perch. That’s the question that drives the story: Can a law school make it into the US News Top Five and lose its ABA accreditation, all in the same year? Another absurdity highlighted in Legal Asylum is that, where in other university departments academic advancement, including tenure, turns on publication in peer-reviewed journals, American law schools commit the credentialing function to second-year law students who run the law reviews.

AM:  Your book is funny.  Why is humor a powerful mode of critique?

PG:  I’m glad you found the book funny! As to why humor is such a powerful mode of critique, it is because, for humor to work, it has to surprise the reader. Wait…she said that! He did what! And it’s that surprise, that unexpected twist, that turns the reader’s angle of view a fraction of a degree—or if it’s a belly laugh, maybe a full degree—so that the subject of the lampoon suddenly appears in a different light. To discover, for example, that the emperor is wearing no clothes, is not only funny, but it’s also a powerful critique of a certain kind of political leader.

AM:  You’ve called your protagonist, Dean Elspeth Flowers, a hero.  Why?

PG:  For a literary hero to be at all interesting, she or he needs to be flawed—the deeper the flaw the better—because it is only character defects like pride, willfulness and grandiosity that will get the hero in trouble, and without trouble, what kind of story do you have? Several readers of Legal Asylum have told me how shocked they were to discover that, by the end of the book, they were truly rooting for Elspeth.

AM:  Is there anything good about the obsession with law-school rankings and the so-called “arms race” between law schools?

PG:  I’m sure there are some beneficiaries of the law school rankings game. The companies that publish all those glossy brochures touting law school achievements to prospective respondents in the US News polls certainly come out ahead. So do the airlines that fly admitted students to the law schools that are recruiting them like prized football prospects. And of course there’s US News itself, for which rankings must be a rare profit center in a bleak economic landscape for news media.

AM:  It’s interesting that the American Bar Association doesn’t dodge satire in the book, yet the ABA—or a division of it—published the book.

PG:  I have a wonderful and brave editor at Ankerwycke, and he didn’t once bat an eye at the parts of the story that poke fun at the A.B.A accreditation process.

AM:  Did you ever consider writing about lower-ranked law schools, or did you, a Stanford law professor, write from the perspective you knew—from a top-ranked law school?  I’m thinking now of Charlotte Law School and the troubles it’s been facing in light of the Department of Education’s decision to revoke federal funding there. It seems to me that law professors and administrators at these schools, who are in crisis mode, may not be in the mood for humor about legal education. 

PG:  My first law teaching job was at a state law school and, although this was long before the rankings game got underway, I can say that, like countless other schools today—state and private—that haven’t made it into the top tiers, it was preparing its students for the practice of law as effectively as any law school in the country. Are there law schools that shouldn’t be in business today? I expect that there are, and that has nothing to do with the US News hierarchy. But other schools have a legitimate grievance against rankings that pretend that their fine-grained hierarchical distinctions convey any useful information.

AM:  Why the noun “asylum” in the title of the book?  It’s provocative and suggestive.

PG:  I like book titles that are at once evocative and descriptive. It’s hard to beat Anthony Doerr’s All the Light We Cannot See, for example.  There is of course an asylum for the criminally insane that figures in the plot of Legal Asylum, but the book’s title also aims to evoke the sheltered craziness that passes for legal education at the state law school where the story takes place.

AM:  Thanks again for the interview.  Any closing comments about how readers can find your work?

PG:  It was a pleasure. Readers can buy the book at Amazon.com, Barnes & Noble, IndieBound, and Shop ABA.

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The American Nietzsche? Fate and Power in Oliver Wendell Holmes Jr.’s Pragmatism

In America, American History, American Literature, Arts & Letters, Creativity, Emerson, Essays, History, Humanities, Jurisprudence, Law, Law-and-Literature, liberal arts, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Rhetoric, Scholarship, Western Philosophy on February 15, 2017 at 6:45 am

Allen Mendenhall

Seth Vannatta of Morgan State University recently coauthored a piece with me on Friedrich Nietzsche’s influence on U.S. Supreme Court Justice Oliver Wendell Holmes Jr.  The piece appeared in the fall 2016 issue of UMKC Law Review.

Richard Posner is one of the few legal minds to have noticed the affinity between the philosophies of Holmes and Nietzsche. Dr. Vannatta and I hope to expand the circles of interest in this topic.

Our article demonstrates how Holmes’s pragmatism both comports with and departs from Nietzsche’s existentialism. Holmes’s pragmatism shares with Nietzsche’s existentialism a commitment to skepticism, perspectivalism, experiential knowledge, and aesthetics, as well as an abiding awareness of the problematic nature of truth and the fallibility of the human mind.

We suggest that Holmes was familiar with Nietzsche’s writings and that the two thinkers turned away from Christian ethics and glorified the life struggle in distinctly evolutionary terms. Both men celebrated the individual capacity to exercise the will for purposes of personal autonomy, greatness, and creative or aesthetic achievement. Nietzsche, however, did not share Holmes’s belief in the pragmatic potential of meliorism, which marks the distinction between their notions of fate.

The thinking of Nietzsche and Holmes converges in the person of Ralph Waldo Emerson, who was a manifest influence on both Holmes and Nietzsche and whose thinking on fate and power, inflected as it is by aesthetic pragmatism, shapes our understanding not only of Holmes and Nietzsche in isolation but also of Holmes and Nietzsche as paired, ambitious philosophers concerned about the role of fate and power in human activity.

The article is available for download here in the SSRN database for those who are interested in reading more about this curious relationship between two intellectuals whose ideas shaped society during the 20th century.

Oliver Wendell Holmes Jr., Pragmatism, and the Jurisprudence of Agon

In America, American History, American Literature, Arts & Letters, Books, History, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Research & Writing, liberal arts, Literary Theory & Criticism, Literature, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Rhetoric, Scholarship, The Supreme Court, Western Philosophy, Writing on December 7, 2016 at 6:45 am

Allen 2

My latest book, scheduled for release next week through Bucknell University Press, is about United States Supreme Court Justice Oliver Wendell Holmes Jr.  The book continues my work at the intersection of law and the humanities and should interest scholars of literary theory, American literature, jurisprudence, and pragmatism.

I argue in the book that Holmes helps us see the law through an Emersonian lens by the way in which he wrote his judicial dissents. Holmes’s literary style mimics and enacts two characteristics of Ralph Waldo Emerson’s thought: “superfluity” and the “poetics of transition,” concepts ascribed to Emerson and developed by literary critic Richard Poirier. Using this aesthetic style borrowed from Emerson and carried out by later pragmatists, Holmes not only made it more likely that his dissents would remain alive for future judges or justices (because how they were written was itself memorable, whatever the value of their content), but also shaped our understanding of dissents and, in this, our understanding of law. By opening constitutional precedent to potential change, Holmes’s dissents made room for future thought, moving our understanding of legal concepts in a more pragmatic direction and away from formalistic understandings of law. Included in this new understanding is the idea that the “canon” of judicial cases involves oppositional positions that must be sustained if the law is to serve pragmatic purposes. This process of precedent-making in a common-law system resembles the construction of the literary canon as it is conceived by Harold Bloom and Richard Posner.

The book is available for purchase here:

Click here to purchase

The Trial Scene in Shakespeare’s “Merchant of Venice”

In Arts & Letters, Books, British Literature, Fiction, History, Humanities, Jurisprudence, Justice, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Shakespeare, Theatre, Western Civilization on August 31, 2016 at 6:45 am

Allen 2

The following excerpt is adapted from my essay “A Time for Bonding: Commerce, Love, and Law in The Merchant of Venice,” which may be downloaded at this link.

Act IV, Scene I of William Shakespeare’s Merchant of Venice involves the climactic court scene in which Shylock and Antonio confront one another, in person, before Portia, who will determine Antonio’s fate.

At this point Portia has already revealed to Nerissa, her lady-in-waiting, her plan to “wear my dagger with the braver grace / And speak between the change of man and boy / With a reed voice, and turn two mincing steps / Into a manly stride, and speak of frays / Like a fine bragging youth.” She and Nerissa will cross-dress, in other words, and once “accoutred like young men” will act as though Portia is a doctor of laws, or a law clerk, administering justice and adjudicating disputes in the Duke’s Venetian courtroom.

Bassanio attempts to settle the case on Antonio’s behalf by tendering Shylock double and then triple the amount of the original loan, but Shylock unmercifully insists on exacting a pound of Antonio’s flesh. Portia appears to support Shylock, saying, “[T]here is no power in Venice / Can alter a decree established: ‘Twill be recorded for a precedent, / And many an error by the same example / Will rush into the state: it cannot be.” Although she says that Shylock’s “suit” is “[o]f a strange nature,” she submits that “in such rule that the Venetian law / Cannot impugn you as you do proceed.”

Praising Portia as a “Daniel come to judgment,” Shylock demands that a judgment be entered against Antonio immediately: “When [the bond] is paid according to the tenour. / It doth appear you are a worthy judge; / You know the law, your exposition / Hath been most sound: I charge you by the law, / Whereof you are a well-deserving pillar, / Proceed to judgment: by my soul I swear / There is no power in the tongue of man / To alter me: I stay here on my bond.” Antonio himself conveys a preference for swift judgment: “Make no more offers, use no farther means, / But with all brief and plain conveniency / Let me have judgment and the Jew his will.”

Portia readies the others for the judgment by telling Antonio to “prepare your bosom for [Shylock’s] knife.” That the bond calls for the pound of flesh to be exacted “nearest [Antonio’s] heart” draws attention to the metaphorical implications of the judgment and the plural meaning of the bond: it is not just the contractual relationship but the potential for friendship that is about to be carved apart.

Just before the judgment is to be perfected, Bassanio and Antonio profess their love for one another. Portia then explains to Shylock—turning his literalism against him—that the judgment calls for the removal of a pound of flesh but “no jot of blood.” If any blood should be drawn, then Shylock must forfeit his lands and goods to Venice. There being no way to cut a pound of flesh without drawing blood, Shylock finds himself in a precarious situation. Portia tells him that

The law hath yet another hold on you.

It is enacted in the laws of Venice,

If it be proved against an alien

That by direct or indirect attempts

He seek the life of any citizen,

The party ‘gainst the which he doth contrive

Shall seize one half his goods; the other half

Comes to the privy coffer of the state;

And the offender’s life lies in the mercy

Of the duke only, ‘gainst all other voice.

In which predicament, I say, though stand’st;

For it appears, by manifest proceeding,

That indirectly and directly too

Thou hast contrived against the very life

Of the defendant; and thou hast incurr’d

The danger formerly by me rehearsed.

With these words, Shylock is defeated. The Duke pronounces that, as a consequence of the legal proceeding, Shylock shall render half his wealth to Antonio and half to Venice, but Antonio pleads that he will forego his share if Shylock converts to Christianity. The Duke concedes; Shylock acquiesces. The litigation comes to a close.

 

Claire Hamner Matturro Reviews Robert Bailey’s “Between Black and White”

In Arts & Letters, Book Reviews, Books, Creative Writing, Fiction, Humanities, Justice, Law, Law-and-Literature, Literature, Novels, Southern Literary Review, Southern Literature, The Novel, The South, Writing on June 15, 2016 at 6:45 am

ClaireHamnerMatturroforSoLitRev

Claire Hamner Matturro, a former lawyer and college teacher, is the author of four legal mysteries with a sense of humor. Her books are Skinny-Dipping (2004) (a BookSense pick, Romantic Times’ Best First Mystery, and nominated for a Barry Award); Wildcat Wine (2005) (nominated for a Georgia Writer of the Year Award); Bone Valley (2006) and Sweetheart Deal (2007) (winner of Romantic Times’ Toby Bromberg Award for Most Humorous Mystery), all published by William Morrow. She remains active in writers’ groups, teaches creative writing in adult education, and does some freelance editing. Visit her at www.clairematturro.com.

The review originally appeared here in Southern Literary Review.

Following the success of his powerful debut legal thriller, The Professor (Thomas & Mercer 2015), Bailey offers a second, stunning story in the series. In his novel Between Black and White (Thomas & Mercer March 2016), Bailey establishes beyond doubt that he is an author to be read and reckoned with.

Between Black and White is closely tied to Bailey’s first book and involves several of the same characters. In The Professor, readers were introduced to aging former law professor Tom McMurtrie, who returns to the courtroom after being forced out of his teaching position at The University of Alabama School of Law. Tom teams up with Rick Drake, an impetuous young attorney and his one-time student. Together, in The Professor, Tom and Rick pursue a tense and dangerous wrongful death lawsuit.

While Tom and Rick dominate The Professor, another lawyer—Bocephus Haynes, or Bo—steps into that story at critical times to boost and support Tom. Bo is a bigger than life black University of Alabama football star who blew out his knee and, instead of retreating into depression over the loss of a pro football career, goes to law school. Tom is one of his professors, and the two develop a close friendship.

As much as The Professor was Tom and Rick’s story, Between Black and White is Bo’s story. In the prologue, we meet Bo as a five-year-old who watches members of the Ku Klux Klan lynch his beloved father. From the opening pages of Chapter One—which finds a disheartened, angry Bo getting drunk on the anniversary of his father’s brutal lynching—to the shocking, violent conclusion, Bo leaps off the pages with boldness and spirit. But like all well-crafted fictional heroes, he is flawed, and his failings land him in a courtroom as the sole defendant in a capital murder case.

His near fatal flaw: hunger for revenge. Obsessed with punishing the man who lynched his father, Bo shapes his professional life around that goal. After graduating with honors from The University of Alabama School of Law, Bo turns down offers at prestigious law firms. He returns to his home town, Pulaski, Tennessee, to a solo law practice as the city’s only black attorney—and to pursue the man he holds responsible for his father’s death. Too many people in the city of Pulaski know Bo is driven by his fixation to punish the man he blames for his father’s lynching. His wife has even left him because his drive to avenge his father’s murder has endangered their two children.

Since Bo was five years-old, he has blamed Andrew Davis Walton, a powerful businessman in Pulaski, for his father’s death. Once the Imperial Wizard of the Tennessee Knights of the KKK, Walton shook off the robes of the Klan and made millions in the stock market. Known as the “the Warren Buffett of the South,” he tried to make amends for his Klan actions.

Yet people have a long memory when it comes to the Klan—and no one more than Bo. Though Walton was hooded the night five-year-old Bo witnessed the lynching, Bo recognized Walton’s voice. But no one in law enforcement was ever willing—then or later—to prosecute Walton on the testimony of a child claiming to identify a voice.

On the 45th anniversary of his father’s lynching, Bo gets drunks in a local bar. Walton and Maggie, Walton’s aging, beautiful wife and one of the local landed aristocracy, seemingly accidentally run into Bo in the bar. Face to face with Walton, Bo threatens him in front of witnesses by quoting the Old Testament’s “eye for an eye.”

After the bartender breaks up the confrontation, Walton steps outside. But before Bo leaves the bar, Maggie returns to tell him that Walton is dying. She asks that Bo leave her terminally ill husband alone. Bo staggers out, lamenting to himself that Andy Walton was going to die before he could bring him to justice.

That night, someone shoots Walton and stages a mock lynching at the site where Bo’s father was lynched four and a half decades before.

Physical evidence points directly at Bo. Everyone in the legal community knows he had the motive and opportunity. Even before Bo recovers from his hangover, he is in jail. The prosecutor, a fierce woman attorney who has butted heads with Bo in court before, decides to seek the death penalty.

Pulaski was the birthplace of the Ku Klux Klan, and many residents and officials in the city strive to live that down. So when the murder, with its roots in the old KKK lynching, puts Pulaski and its Klan heritage back in the spotlight of national media, city officials attempt to pressure Bo to plead guilty and avoid the further media circus of a trial.

Bo refuses. He is innocent of murdering Walton—or so he claims, though no one in law enforcement believes him. He calls on his former law professor and close friend, Tom, to defend him. Reluctantly, Tom agrees and retains local attorney Raymond “Ray Ray” Pickalew, another former U of A football player. Rick, who is now Tom’s law partner, is dragged into the case as well.

Though Tom and Rick sense a setup, they struggle against multiple roadblocks—and the overwhelming physical evidence of Bo’s guilt—to determine who had a motive to kill Andy Walton and frame Bo. During their quest, Tom is assaulted and sidelined by his injuries; Ray Ray is a drunk with an attitude, and young. Overwhelmed Rick is left to unravel the seemingly unrelated pieces of a complex, emotional puzzle. Villains from The Professor return to taunt and threaten Tom and Rick, adding further intricacy to the plot.

Thus, Bailey sets up the classic formula of a legal thriller. Mind you, formula is not used as a derogatory term here. Shakespeare’s sonnets were formula and critics do not dismiss them in disparaging terms. As used here, formula simply refers to the structure and elements that define a genre or a literary style. In a legal thriller where the focus is on a criminal defendant on trial for his or her life, readers expect the odds to be stacked against the defendant. They expect the defense attorneys to be complicated, troubled, overwhelmed and conflicted. And, owing perhaps to the Perry Mason standard, readers expect a surprise witness and revelation near the close of the trial which allows the defense attorneys to prevail and the defendant to be found not guilty.

There are, of course, notable exceptions to this basic formula. Lincoln Lawyer and A Time to Kill come to mind. Both of those legal thrillers had guilty defendants, yet with vastly differing twists at the end.

Given the formulaic elements at play in the genre, a successful legal thriller author has to avoid creating a stale, mechanical plot that reads like a written version of a paint-by-number canvas. Yet the author has to keep the plot within the confines of the genre or publishers will scratch their heads and throw the manuscript on the reject pile.

In other words, authors working within a prescribed genre face a kind of delicate yet vicious circle. On the one hand, they must write within the parameters of their chosen genre. But, on the other hand, they have to do something new, exciting and fresh. It’s kind of like saying: Color within the lines. But don’t color within the lines.

Within this catch-22, the author has to give the reader something more—and something different. This Bailey does, and does with a bang.

Yet, having said that much, to say much more about the surprising, original twists of Between Black and White risks spoiling the plot. Thus, this reviewer will only observe that per the Perry Mason/John Grisham model, an unexpected witness with a startling revelation does pop up at the end of the trial. But just when the reader settles back to relax and believe that justice has been achieved, something complicated, violent and utterly surprising happens.

It isn’t just that Bailey knows how to surprise us, but he also writes well. Very well. Make no mistake on that point. His sentences are clear, clean, distinctive, and when they need to hit with a punch, they do. His pacing is excellent—an edge-of-the-seat, can’t-put-it-down momentum fuels the storyline from the prologue to the climatic ending. His characters are well-drawn, his sense of place and world-building excellent. The plot is intricate, but believable. There is redemption for some characters, resolution for others—and those that deserve neither are left to flounder in their own hell. Justice is achieved, albeit in a confused, violent way.

In short, Bailey wrestles what in less talented hands could have been a formulaic story into something wholly fresh, engaging, and ultimately rich and satisfying. This is a book you want to own and read.

Claire Hamner Matturo Reviews Robert Bailey’s “The Professor”

In Arts & Letters, Book Reviews, Books, Fiction, Humanities, Justice, Law, Law-and-Literature, Literature, The Novel, Writing on May 25, 2016 at 6:45 am

ClaireHamnerMatturroforSoLitRev

Claire Hamner Matturro, a former lawyer and college teacher, is the author of four legal mysteries with a sense of humor. Her books are Skinny-Dipping (2004) (a BookSense pick, Romantic Times’ Best First Mystery, and nominated for a Barry Award); Wildcat Wine (2005) (nominated for a Georgia Writer of the Year Award); Bone Valley (2006) and Sweetheart Deal (2007) (winner of Romantic Times’ Toby Bromberg Award for Most Humorous Mystery), all published by William Morrow. She remains active in writers’ groups, teaches creative writing in adult education, and does some freelance editing. Visit her at www.clairematturro.com

This review originally appeared here in Southern Literary Review.

Move over, John Grisham, there’s a new kid on the legal thriller playing field.

Robert Bailey, an Alabama trial attorney and graduate of The University of Alabama School of Law, returns the kickoff for a 100 yard touchdown with his debut novel, The Professor. The football reference is apropos as the protagonist of The Professor was a member of Alabama’s famous 1961 National Champion football team, and the book opens with a guest appearance by venerated Alabama football coach, Paul “Bear” Bryant. Alabama’s 1961 national championship was the first of the six that Bear Bryant would win as head coach of the Crimson Tide, and the fighting spirit of that 1961 team resounds throughout the novel.

But one does not need to be a football fan or even a fan of legal thrillers to enjoy Bailey’s book as its writing is smooth, captivating and, in all the right places, emotionally moving—all the more impressive in that Bailey only took a single creative writing class while an undergraduate at Davidson College. According to Bailey, “We wrote four short stories, and the critiques I received were mostly positive.  It was definitely a confidence builder and a whole lot of fun.”

How did he go from taking just one creative writing class to writing a riveting debut of a legal thriller?

In law school, Bailey served on the law review, an honor generally reserved for those who can write well. Yet there is a football field of difference in writing an analytical, academic, footnoted and blue-booked law review article and composing an edge-of-your-seat legal thriller.

The bridge, then, between writing like a lawyer and writing like a top-drawer novelist was part inspiration, part studying other novels, and part the hard work of rewriting, redrafting, and revising. Bailey’s inspiration came from growing up in Alabama as a Bear Bryant fan and from wanting to write about a brash young “bull-in-a-china-shop” new attorney—a character whose experiences resemble Bailey’s own days straight out of law school. As for studying other legal thrillers and books, Bailey has said, “Yes, I have learned a lot from reading other novels.  Also, Stephen King’s instructional memoir, On Writing, was a big influence and inspiration.” And as for the hard work of revision and rewriting—it took Bailey eight years to finish The Professor, though he was practicing law, trying cases, and raising a family at the same time.

Bailey, a history major and a Huntsville, Alabama, native, is quite the Bear Bryant fan and a football historian. These personal interests enrich The Professor and play into Bailey’s creation of the lead character, Professor Thomas Jackson McMurtrie.

In some ways McMurtrie, the protagonist, is an unusual leading man. For one thing, he is 68 and his glory days on the famous Alabama football team of 1961 are long behind him. He faces serious health issues, mourns his late wife, and has been unfairly manipulated out of his position as an evidence professor at the University of Alabama School of Law into an unwanted early retirement. One of his former students—and a man he had called a friend—was complicit in the scheme to push him out as a law professor, and the betrayal wounds McMurtrie deeply.

Yet, in other ways, McMurtrie is the ideal leading man—for one thing his skills and instincts as a trial attorney form the perfect balance to his headstrong, volatile former student, Rick Drake, when they take on a trucking company in a wrongful-death case. McMurtrie, named after Thomas “Stonewall” Jackson, epitomizes what we would want in both a leading man and a lawyer—he is somewhat of a modern Atticus Finch, albeit with some different demons. Bailey writes in his author’s notes that he wanted to create a character that was a “man of exceptional integrity, strength, and class.” This Bailey has done.

Rick Drake, the lawyer version of a yin to McMurtrie’s yang, is more of what readers might expect in legal thrillers. A young lawyer, brash, over his head, yet passionate about his client and the case, Drake has more gumption and zeal than skills. He needs the experience and even temperament of McMurtrie. Drake also needs an expert in evidence, and McMurtrie literally wrote the textbook on evidence law in Alabama.

But here’s the rub: Drake and McMurtrie have a turbulent history. Drake was McMurtrie’s law student and the two came to blows—literally—after Drake hotheadedly dashed his trial advocate team’s chances of winning a national trial competition. McMurtrie was the team’s coach. After a video of the angry clash between the professor and the student was posted on YouTube, a conniving new dean at the law school used the incident as part of his plan to push McMurtrie out of his tenured position.

So, let’s just say Drake and McMurtrie are not best friends.

Yet each man knows the value of the other. Drake has the vigor McMurtrie fears is waning in himself. And McMurtrie has decades of knowledge and the calm, deliberate skills Drake lacks.

Thus, out of these conflicts and contrasting personalities, the characters of McMurtrie and Drake form an integral part of what makes The Professor work so well. This is a book about people, vividly drawn and fully realized, overcoming obstacles within themselves—as well as obstacles placed in their way by unscrupulous others.

Superb writing and engaging protagonists, though, are not the only things that make this debut so compelling. This is a bam-bam-bam book as far as plot goes, with plenty of action in and out of the courtroom. In the opening chapters, there is a horrific and fiery automobile crash, betrayal, suicide, murder, blackmail and enough suspense to keep the reader turning pages all night. There’s a good reason Winston Groom, author of Forrest Gump and another Alabama writer, calls The Professor “[g]ripping from the first page to the last.”

In a tightly woven plot that unfolds naturally in well-paced scenes, McMurtrie refers a former girlfriend (from the days before his marriage) to Drake for representation in a wrongful-death action after her granddaughter, daughter and son-in-law slam into a speeding eighteen-wheeler and die. McMurtrie recommends that she retain Drake in part because Drake grew up in the town where the lawsuit will be tried and McMurtrie believes in the home-court advantage. Yet McMurtrie also believes Drake can win the case—and he wants to help the struggling lawyer.

The defendant trucking company’s owner is an unscrupulous yet tough adversary who has the power to pervert the quest for hard evidence. Drake and McMurtrie have to prove in a court of law what they know is true—the trucking company had a consistent, deliberate pattern of forcing its truckers to speed in order to clock more miles and make more money for the company. Yet the trucking company’s owner doesn’t play by any rules, which gives him an apparent upper hand in disposing of key witnesses and the paper trail of evidence. Compounding the pressure on Drake and McMurtrie, the trucking company’s attorney is none other than McMurtrie’s former friend who betrayed him and helped oust him from his teaching career.

The stakes go beyond money. The plaintiff wants the world to know the truth about the accident—that her family died because of a concerted, greedy corporate plan that turned its eighteen-wheelers into dangerous weapons.

McMurtrie wants to avenge himself against his former friend and later betrayer, and he wants to help his former girlfriend. Not incidentally, he hopes to prove that even at 68, “The old bull still has a little gas in the tank.” And, maybe, he hopes to get his job as a law professor back. He definitely wants to help Drake and set matters right between them.

Yet in some ways, Drake is the one who has the most at stake. The YouTube of his shoving contest with McMurtrie painted him as an uncontrollable hothead and cost him his position at a big law firm. He is barely earning his rent as a solo practitioner. He questions himself. If Drake is going to survive as an attorney, he needs a courtroom victory. But beyond building his career, he needs to get right in his own head and prove he is capable of being a winning trial attorney—one who will not blow up and ruin the case as he did during the law school trial team competition. Drake is a young man, not fully formed as a man or an attorney, and this trial will make or break his maturation.

The trial scenes resonate with realism. Naturally so, given that the author is a practicing attorney and a shareholder with the law firm of Lanier Ford in Huntsville. Interestingly enough, the author defends—among others—trucking companies. Similar to his character Drake, Bailey was a winner in trial advocacy competitions while in law school.

The Professor introduces the character of Bocephus Haynes, McMurtrie’s favorite former student. Bocephus plays an important yet secondary role in the story as ally and emotional support, but he is set to return in a leading role in the sequel, Between Black and White. A third manuscript, now in the works, will take Drake and McMurtrie back to Tuscaloosa, and Drake’s story line and growth as a character will be explored further and in more detail.

 

Balance and Imbalance in E.M. Forster’s A Passage to India

In Arts & Letters, Books, Britain, British Literature, E.M. Forster, Eastern Civilizaton, Fiction, History, Humanities, Jurisprudence, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Modernism, Western Civilization on November 11, 2015 at 8:45 am

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E.M. Forster’s A Passage to India is in many ways about losing balance. Characters like Turton, Fielding, and Mrs. Moore represent centers of gravity, fixed between competing tensions and antagonistic binaries: reason and emotion, Indian and British, human and animal.

Situated between the nested oppositions, Turton, Fielding and Mrs. Moore denote compromised identity, the reconcilability of two cultures; as middle-markers they refuse rigid categorization and maintain symmetry in power relations. Instead of opening channels of communication and understanding, however, their mediating presence has tragic results: Turton goes crazy, Fielding loses hope and Mrs. Moore dies. These characters are necessary as fulcra; but when they align themselves with one binary or leave India altogether, they trouble the balance and stability of society writ large.

In a strictly separatist microcosm, they occupy the geometric center. When their positions shift, equilibrium breaks down: society becomes a mass of madness. The only go-between characters in the novel are English, suggesting that the story is a mirror held up to placate white guilt.

The demise of these characters in particular, and of Anglo-Indian relations generally, turns on the overarching, structural antinomy between reason and emotion that comes to a head during the abortive kangaroo trial. An interrogation of this antinomy and its collapse into muddledom reveals how law and justice in Chandrapore bear a systematic and determinative relation to race and gender.

The above text is adapted from an excerpt of my essay “‘Mass of Madness’: Jurisprudence in E.M. Forster’s A Passage to India,” published in Modernist Cultures, Vol. 6, No. 2 (2011). To view the full essay, you may download it here at SSRN or visit the website of Modernist Cultures.

Literature and Liberty: Essays in Libertarian Literary Criticism

In Arts & Letters, Books, Economics, Essays, Humane Economy, Humanities, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, News Release, Philosophy, Politics, Western Civilization, Western Philosophy on December 17, 2014 at 8:45 am

Literature and Liberty

A Christmas gift available here at Rowman & Littlefield’s website, here at Amazon, here at ebay, and here at Barnes & Noble.   

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.

Here’s what others are saying about Literature and Liberty:

By subtitling his book “Essays in Libertarian Literary Criticism,” Allen Mendenhall situates his work within an exciting methodological approach that is still off the radar screens of most academicians.  Not since the appearance of Edward Said’s Orientalism has a new literary approach invited us to read texts from a vantage point that jolts us into recognition of deep-seated ideological undercurrents that had previously remained unnoticed, or were simply passed over in silence. … It is a pleasure to now add Mendenhall’s deftly argued and passionately engaged volume to my list of recommended readings in libertarian scholarship.— Jo Ann Cavallo, Professor of Italian and Director of Undergraduate Studies, Columbia University

The much celebrated interdisciplinarity of contemporary criticism often amounts to nothing more than the absence of grounding in any traditional intellectual discipline, literary or otherwise. By contrast, Allen Mendenhall’s book is genuinely interdisciplinary. With solid credentials in law, economics, and literature, he moves seamlessly and productively among the fields. Covering a wide range of topics—from medieval history to postcolonial studies—Mendenhall opens up fresh perspectives on long-debated critical issues and raises new questions of his own.Paul A. Cantor, Clifton Waller Barrett Professor of English, University of Virginia

Freedom is all around us, but we sometimes need expert guides to help us see it. This is exactly what the brilliant Allen Mendenhall has done with his outstanding collection of essays on the way great literary fiction interacts with the themes of human liberty. In taking this approach, he is turning certain academic conventions on their heads, finding individualism and property rights where others look for social forces and collectivist imperatives. He helps us to have a rich and deeper appreciation of the libertarian tradition and its expanse beyond economics and politics.Jeffrey Tucker, CEO of Liberty.me, Distinguished Fellow at the Foundation for Economic Education, executive editor of Laissez-Faire Books, and Research Fellow at the Acton Institute

In Literature and Liberty, Allen Mendenhall aims to expand the marketplace of ideas in literary studies to include the entire spectrum of free-market theories. His goal is to break Marxism’s monopolistic hold over economic ideas in the study of imaginative literature. In his diverse chapters, he convincingly offers multiple transdisciplinary approaches to libertarian theory that literature scholars could adopt and build upon. Celebrating individualism and freedom in place of collectivism and determinism, Mendenhall focuses on commonalities and areas of agreement with respect to free-market theories. This approach increases the probability that the ideas in this ground-breaking volume will be widely embraced by thinkers from various schools of pro-capitalist thought, including, but not limited to Classical Liberalism, the Austrian School, the Judeo-Christian perspective, the Public Choice School, the Chicago School, the Human Flourishing School, and Objectivism.Edward W. Younkins, Professor of Accountancy and Business Administration and Executive Director of the Institute for the Study of Capitalism and Morality, Wheeling Jesuit University

Allen Mendenhall is both an attorney and an advanced student of literature. He also has an excellent knowledge of modern economics. … [A]s Mendenhall notes, non-Marxist treatments of economics and literature have been slow to develop. His new book, Literature and Liberty, goes far toward supplying this lack. It shows how much work can be done, and good work too, when law and literature are studied from the perspectives offered by a real competence in economic ideas. … Every part of the book shows the fully interdisciplinary character of Mendenhall’s understanding of his subjects and his large knowledge of the historical periods he treats. Only the rare reader will be unable to learn from Mendenhall. … The kind of interdisciplinary work that Mendenhall advocates is an exciting enterprise, and one hopes that he will have much more to do with it.— Stephen Cox, Professor of Literature, University of California, San Diego, and Editor in Chief, Liberty

Oliver Wendell Holmes, Jr., and the Literary Quality of his Prose

In America, American History, American Literature, Arts & Letters, Emerson, History, Humanities, Jurisprudence, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Modernism, Oliver Wendell Holmes Jr., Poetry, Rhetoric, Writing on June 11, 2014 at 8:45 am

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Oliver Wendell Holmes Jr.’s writings are known for their literary qualities.  The Class Poet at Harvard, the son of a famous poet, and a lifelong devotee of Emerson, Holmes often rendered his judicial writings in poetic prose.  Consider the following lines from Gitlow v. New York, which I have reformulated as a poem:

 

                 Gitlow v. New York[i]

                 A Poem[ii] (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.

 

The plain, raw idioms and variable feet in these lines resemble those characteristically employed by Stevens and William Carlos Williams. Holmes’s language here is similar in tone and rhythm to Williams’s in “The Red Wheelbarrow,” which was published just two years before this dissent. Holmes’s alliterative use of the letter “n” emphasizes mobility, momentum, and ignition: “incitement,” “energy,” “movement,” “incitement,” “enthusiasm,” “conflagration.” These nouns suggest provocation, stimulus, instigation; they are tied to ideas themselves, as in the line “every idea is an incitement,” hence the correspondingly alliterative “n” sounds in the words “expression” and “reason.” The metrical regularity of “Every,” “offers it…,” “for belief,” “failure of,” “energy,” “stifles the,” “at its birth,” “difference,” “narrower,” “Eloquence,” and “had no chance” accents the activity associated with thinking insofar as these dactylic words and phrases pertain to ideas or beliefs. Holmes follows a series of dactyls with spondaic feet just as he describes the possibility of combustion: “Eloquence [stress / slack / slack] may set fire [stress / stress / stress / slack] to reason [stress / stress / slack].” It is as though he wishes to create the sense of building pressure and then of sudden release or combustion. Two unstressed lines abruptly interrupt the heightened tension; the first appears with the transitional conjunction “But,” which signals a change in the tone. Holmes appears to reverse the intensity and calm his diction as he assures us that the “redundant discourse,” a phrase made cacophonous by the alliterative “d” and “s” sounds, has “no chance of starting a present conflagration.” A sudden move to iambic feet and hence to a lightened tone rounds out these lines and suggests that Holmes has smothered or extinguished whatever energy had been building with the three-syllable feet. These lines have become some of the most famous in American constitutional history most likely because of their memorable qualities, which contributed to the eventual vindication of the dissent.

Be that as it may, feet and meter are basic to English speech and writing and may be displayed in many other legal writings by less able judges and justices. It would be difficult to prove that Holmes deliberately set out to invest these lines with literary features, at least those pertaining to alliteration and feet. Holmes no doubt had an ear for language and probably intended to employ alliteration, rhythm, and rhyme in his writings, but how far does his intent extend?  Does the scanning exercise above give Holmes too much credit and attribute to his writings undeserved praise?  There is no empirical way to answer this question, but the speculation is, I think, worth the time.

 

[i] Gitlow v. N.Y., 268 U.S. 652 (1925).

 

[ii] My addition.

 

Lines to Holmes

In America, Arts & Letters, Creative Writing, Humanities, Jurisprudence, Law, Law-and-Literature, Literature, Oliver Wendell Holmes Jr., Poetry, Writing on May 14, 2014 at 8:45 am

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Lines to Holmes

A canon of rules and principles,

embodied in individual cases,

aggregated by judges

from different courts

and with different ranks,

makes up the common law system.

Perhaps the better way to put it

is that the common law is a canon

unto itself.

Rules and principles

that regulate people

are always engaged in a struggle for existence,

always subject to challenge and subversion

by the trends and movements of culture.

Tested by their ability

to obtain to society

and to yield constructive results,

they compete with one another

and become canonized

only if they prove

fit to survive the test of time,

the onslaught of new technologies,

which necessitate new approaches

to lawyering.

This is the law of the law

today as always.

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