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Review of Paul Finkelman’s “Supreme Injustice”

In America, American History, Arts & Letters, Book Reviews, Books, Dred Scott, Historicism, History, Humanities, Jurisprudence, Justice, Law, Laws of Slavery, liberal arts, Nineteenth-Century America, Politics, Scholarship, Southern History, The South, Writing on August 8, 2018 at 6:45 am

This review originally appeared here in the Los Angeles Review of Books.

Paul Finkelman is an anomaly: a historian with no law degree who’s held chairs or fellowships at numerous law schools, testified as an expert witness in high-profile cases, and filed amicus briefs with several courts. Federal appellate judges, including justices on the United States Supreme Court, have cited his work. Liberal arts professors anxious about the state and fate of their discipline might look to him to demonstrate the practical relevance of the humanities to everyday society.

Finkelman specializes in American legal history, slavery and the law, constitutional law, and race and the law. His new book, Supreme Injustice, tells the story of three United States Supreme Court Justices — John Marshall, Joseph Story, and Roger B. Taney — and their “slavery jurisprudence.” Each of these men, Finkelman argues, differed in background and methodology but shared the belief that antislavery agitation undermined the legal and political structures instituted by the Constitution. Had they aligned their operative principles with the ideals of liberty, equality, and justice enshrined in the Declaration of Independence, liberty rather than racism and oppression might have defined antebellum America.

Finkelman insists that the legacy of Marshall, Story, and Taney had enormous implications for the state of the nation, strengthening the institutions of slavery and embedding in the law a systemic hostility to fundamental freedom and basic justice. These are strong allegations, attributed to only three individuals. Yet the evidence adds up.

Start with Marshall, a perennially celebrated figure who, unlike many of his generation, in particular his occasional nemesis Thomas Jefferson, has escaped scrutiny on matters of race and slavery. Finkelman submits that scholarship on Marshall is “universally admiring” — an overstatement perhaps, but one that underscores the prevalence of the mythology Finkelman hopes to dispel.

Finkelman emphasizes Marshall’s “personal ties to slavery” and “considerable commitment to owning other human beings.” He combs through numerous records and presents ample data to establish that Marshall, a life member of the American Colonization Society, “actively participated in slavery on a very personal level.” Finkelman then turns to Marshall’s votes and opinions in cases, several of which challenged state laws and rulings that freed slaves. In fact, Marshall would go so far as to overturn the verdicts of white Southern jurors and the judgments of white Southern judges who, in freedom suits, sided with slaves and against masters.

Marshall could be an ardent nationalist attempting to effectuate the supremacy of federal law. One is therefore tempted to attribute his rulings against state laws in cases about slavery to his longstanding desire to centralize federal power. But that is only part of the story. Finkelman brings to light exceptions, including when Marshall selectively deferred to state law if doing so meant that slaves remained the property of their masters. Finkelman highlights these decisions to show that Marshall was hypocritical, compromising his otherwise plenary nationalism to ensure that contractual and property arrangements regarding slaves were protected by law.

Story was also a nationalist, having evolved from Jeffersonianism to anti-Jeffersonianism and eventually becoming Marshall’s jurisprudential adjunct. Unlike Marshall, however, Story could sound “like a full-blown abolitionist.” His opinion in United States v. La Jeune Eugenie (1822) was “an antislavery tour de force,” decrying slavery and the slave trade as “repugnant to the natural rights of man and the dictates of judges.”

Yet he prioritized radical nationalism over the rights of humans in bondage. In Prigg v. Pennsylvania (1842), writing for the Court, he deemed unconstitutional a state ban on the extradition of blacks out of Pennsylvania for purposes of slavery. Story jumped at the chance to pronounce the primacy of federal law over state law even if it meant employing the Supremacy Clause to validate the Fugitive Slave Act of 1793. “A justice who had once thought slavery was deeply immoral,” Finkelman bemoans,

rewrote history, misstated precedents, and made up new constitutional doctrine to nationalize southern slave law and impose it on the entire nation. The decision jeopardized the liberty of every black in the North, whether free or fugitive. The injustice of this opinion was profound.

Author of the notorious Dred Scott opinion, Taney is the most predictable of Finkelman’s targets. By the end of the Civil War, he was vehemently denounced and widely despised. Progressives in the early 20th century, most notably Felix Frankfurter, rehabilitated his reputation in part because progressive economic policy during that era promoted Taney’s approach to states’ rights and political decentralization. The mood has changed; most historians now probably agree that Taney “aggressively protected slavery” and “made war on free blacks.” Few law professors would recall Taney’s “early ambivalence about slavery and his defense of the Reverend Jacob Gruber,” who was arrested for sermonizing against slavery at a Methodist camp meeting and subsequently charged with inciting slave rebellion. Finkelman’s chapter on Taney thus runs with the grain, not against it.

At times Finkelman exaggerates or wishfully portrays the role of judges. He asserts that, prior to the Civil War, courts rather than Congress or the executive had “room for protecting the liberty of free blacks, liberating some slaves, providing due process for alleged fugitive slaves, enforcing the federal suppression of the African slave trade, or preventing slavery from being established in federal territories.” This claim may hold up in some of the cases Finkelman discusses (e.g., LaGrange v. Choteau [1830], in which Marshall declined the opportunity to enforce federal law that could have freed a slave who had traveled into free territory), but not in all of them. If a judge were faced with a problem of statutory construction, he (there were only male judges then) could have asked what the language of the statute meant, how it applied to the concrete facts and material rules before him, and whether it was constitutional, but anything more would have arguably exceeded the scope of his office.

The Constitution was silent about slavery until the Civil War Amendments, also known as the Reconstruction Amendments. Prior to them, any attempt to render slavery unconstitutional would have required appeals to natural law, natural rights, or other like doctrines that appear in the Constitution only in spirit, not in letter. The abolitionist William Lloyd Garrison believed the Constitution was affirmatively proslavery, calling it a “covenant with death” and “an agreement with Hell.” If this is true, then when judges swear an oath to defend the Constitution (the basic framework of government with which all other laws in the United States must comport), they are also inadvertently vowing to defend the institution of slavery — unless the law is more than what statutes and the Constitution provide, in which case these judges could reach beyond the positive law to principles pre-political and universal.

Finkelman suggests another alternative: that certain constitutional provisions supplied a basis in positive law for antislavery strategies and stratagem. He cites, among other things, the congressional powers exercised in the reenactment of the Northwest Ordinance and the enactment of the Missouri Compromise and Oregon Territory; the admission of new free states into the United States; the due process guarantees of the Fifth Amendment; the rights of criminal defendants protected by the Sixth Amendment; the Privileges and Immunities Clause; and the guarantees of the First Amendment.

Each of these would have been problematic during the period Finkelman covers. There was not yet a 14th Amendment through which provisions of the Bill of Rights could have been incorporated to apply against the several states, although state constitutions contained protections of fundamental rights that federal judges recognized and affirmed. Moreover, the provisions Finkelman enumerates empowered Congress, not the courts, to pursue robust antislavery measures. Courts could have responded to and interpreted actions and directives of Congress, but they could not have initiated legislation or litigation. Had the Constitution enabled federal judges and the United States Supreme Court to strike down proslavery laws and regulations with ease, the Civil War Amendments might not have been necessary. But they were necessary to facilitate the demise of slavery.

Finkelman speculates about what the courts could have done to advance antislavery causes, but courts cannot do anything unless the right litigants bring the right cases with the right facts before the right tribunals while making the right arguments. Judges do not commence lawsuits but handle the ones brought before them. Finkelman could have examined some cases more closely to reveal how the facts, issues, reasoning, and holdings should have differed in rationale, not just in result. Too many cases receive only cursory treatment; lawsuits are more than picking winners and losers.

At one point, Finkelman accuses Marshall of reading a statute “in favor of slavery and not freedom,” but the statute isn’t quoted. Readers will have to look up the case to decide if Marshall’s interpretation was reasonable or arbitrary — if, that is, his hermeneutics adequately reflected a common understanding of the statutory language or intolerably controverted congressional purpose and prerogative. Finkelman chides departures from precedent, but rarely analyzes the allegedly controlling cases to verify that they are, in fact, dispositive of the later controversy by analogy of received rules.

One is regularly left with the impression that the only issue in the cases Finkelman evaluates was whether a slave should be free or not. Many of the cases, however, involved procedural and jurisdictional complexities that had to be resolved before grand political holdings implicating the entire institution of slavery could be reached. We’re still debating the ambiguities of federalism (e.g., how to square the Supremacy Clause with the Ninth and 10th Amendments) that complicate any exposition of the interplay between state and federal law, so it can seem anachronistic and quixotic to condemn Marshall, Story, or Taney for not untangling state and federal law in a manner that in retrospect would appear to have occasioned more freedom and less bondage.

Then again, it’s hard to fault Finkelman for subjecting these giants of the law to such high standards. That men like Marshall and Story have not been investigated as their contemporaries have in light of the horrors and effects of slavery speaks volumes about the willful blindness of the legal profession and the deficiencies of legal scholarship. Finkelman remains an important voice in legal education and has pushed scholarly conversations about slavery in new directions. At 68, he’s likely got more books left in him. Anxious readers await the next.

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Three Poems by James Hochtritt

In Arts & Letters, Creative Writing, Humanities, Poetry, Writing on June 13, 2018 at 6:45 am

James Hochtritt has been a featured reader of his poetry at venues in California and Oklahoma over the years. He holds a Ph.D. in History from the University of Oklahoma and is a full-time professor of history at Rose State College in Midwest City, Oklahoma. He lives and writes in Midwest City.

EXETER, CALIFORNIA

He monitors smudge pots,
Shadows illuminating his face,
Black smoke burning his eyes.
A pungent aroma of citrus mixes
With an acrid blend of chemicals
Whose names he cannot pronounce.
His thoughts drift in and out,
Recollect his youth in Zihuatanejo,
Christmas memories, novenas, orphans,
Focus on the antics of a spotted dog
That ambles beside him.

Looking up at stars he fondles a small cross
On a silver chain around his neck,
Brings it to his lips as a gesture of faith.
Wishes he was back in bed
And the soft breathing of his wife.
Inhaling the bite of the night frost,
He squints at ornaments and candy-colored lights
Strung like a necklace around a house,
Counts three blessings for each of his children.

Disconnected from the earth in December’s dark
He dreams of home and his father.
Prays for those
Who bleed and give birth in the fertile soil of the fields
Among the insects and the furrows.
Hates that he understands
That men like him are necessary,
Harnessed mules, machinery,
Hands that sow what others reap.
The puzzling chasm that lies between
That which is holy and merely human.

VOTIVE

Passer’s by and visitors, strangers, reporters,
Relatives fold paper flowers and mementos
Into the honeycomb of the cyclone fence.
Tie ribbons onto wire, tape poems to poles,
Paste locks of hair onto photographs
Wrapped in angels made of foil.
Morning, noon, and night the vigil evolves
The guilt-ridden who survived, tourists,
The inquisitive and curious,
Weak knees, helplessness, countenance transfixed,
Palms and faces pressed against the barrier,
Introspection above the hole.
Low whispers barely audible,
Prayers to the beloved, Eucharist
For the grieving, comfort for the anguish.
Our penitence an epitaph,
Speechlessness, invocation of the lost,
Liturgy of tears, consecration of rubble.
Without pause, the requiem,
The mournful eulogy continues,
Watery eyes like reflecting pools or grottos,
Blank stares articulating silence,
Inability of the living to sanctify with words
The blasphemy of the aftermath.

HOUSE

Apologies were never enough.
Words flew like sparks from her mouth,
Her arms flapping up and down
Like some apoplectic bird.

Fixed in the cross hairs
Of her cubist eyes,
Her smeared lipstick
Angled her face into a cockeyed shape.
It was advisable to not say a word
But bob and flinch, hunch and cower.
Grit the teeth
Amidst the knickknacks
Swept from their places,
The shattered glass,
Interminable silences
Simmering like steam.
Ride it out the best a child could
Within the confines of the cage,
Until rage flattened to tears
And the claws retracted.

Only then was it safe
To venture a breath,
Feign a posture of guilt
With a downward glance
And tip-toe past the beast
Through the rancor and the ashes,
Escape into the fields
And the kisses of the rain.

Review of Richard Posner’s “The Federal Judiciary”

In Arts & Letters, Book Reviews, Books, Jurisprudence, Law, Writing on December 27, 2017 at 6:45 am

This review originally appeared here in the Los Angeles Review of Books.

“I’m not a typical federal judge,” Richard Posner says in his new book The Federal Judiciary, which seems designed to affirm that claim.

Released in August, this tome shouldn’t be confused with his self-published Reforming the Federal Judiciary, released in September. The latter has generated controversy because it includes documents internal to the Seventh Circuit Court of Appeals, including personal emails from Chief Judge Diane Wood and confidential bench memoranda. The former, the subject of this review, is no less blunt, though one suspects the editors at Harvard University Press ensured that it excluded improper content.

Publication of both books coincides with the sudden announcement of Posner’s retirement. This quirky and opinionated jurist is going out with a bang, not a whimper, after serving nearly 36 years on the bench. He could have taken senior status; instead he’s withdrawing completely, citing his court’s handling of pro se appellants as the prime reason.

The Federal Judiciary presents “an unvarnished inside look” at the federal court system, which, Posner insists, “is laboring under a number of handicaps,” “habituated to formality, resistant to change, backward-looking, even stodgy.”

Posner is a self-styled pragmatist who champions resolving cases practically and efficiently through common-sense empiricism without resorting to abstractions or canons of construction. He adores Justice Oliver Wendell Holmes Jr., whose jurisprudence resembled the pragmatism of C. S. Peirce, William James, and John Dewey. His methodology relies on analyzing the facts and legal issues in a case, and then predicting the reasonable outcome in light of experience and the probable consequences of his decision. Accordingly, he follows his instincts unless some statute or constitutional provision stands in the way. Most of the time, the operative rules remain malleable enough to bend toward his purposes.

This fluid approach to judging stands in contradistinction to that of Justice Antonin Scalia, for whom Posner has little affection. In fact, Posner establishes himself as Scalia’s opposite. Where Scalia was formalistic and traditional, Posner is flexible and innovative. Where Scalia was doctrinaire, Posner is pragmatic. Where Scalia was orthodox, Posner boasts, “I am willing to go […] deep into the realm of unorthodoxy.”

Posner’s criticisms of Scalia can seem irresponsibly personal, involving not only Scalia’s originalism and textualism (legitimate objects of concern) but also his religious views on Creationism (about which, Posner declares, Scalia was “wrong as usual”). He calls Scalia’s belief in the devil “[c]hildish nonsense” and denounces Scalia’s unhealthy lifestyle. In a low moment, he calls Scalia “careless” for dying next to a sleep apnea machine the ailing justice wasn’t using. This rebuke is irreverent, but is it constructive or extraneous? Does it advance Posner’s judicial methods while weakening the case for Scalia’s?

Aspiring to be “relentlessly critical and overflowing with suggestions for reform,” Posner attacks the “traditional legal culture” that, he says, “has to a significant degree outlived its usefulness.” Cataloging the targets of his iconoclastic ire would be exhausting. He jumps from subject to subject, castigating “judicial pretense” and treating with equal fervor such weighty topics as statutory interpretation and such trivial matters as the denotation of “chambers” versus “office.” He confers delightfully disrespectful labels (“slowpokes,” “curmudgeons”) on his colleagues but can also seem petty (complaints about food in the US Supreme Court cafeteria come to mind).

Most of his critiques have merit. His persistent assault on the sanctimony and pomposity of federal judicial culture is acutely entertaining, signaling to some of his more arrogant colleagues that they’re not as important or intelligent as they might think.

Posner likes to shock. What other judge would assert that the Constitution is “obsolete” or ask when we’ll “stop fussing over an eighteenth-century document” that institutes the basic framework of governance for the country? A bedrock principle underlying the separation-of-powers doctrine holds that the judicial branch interprets law while the legislative branch makes it. Posner, however, announces that federal judges legislate even though they’re unelected. Conservative commentators would offer this fact as condemnation, but Posner extols it as an indispensable prerogative.

Although he alleges that judges are political actors, he’s impatient with politicians. He ranks as the top weakness of the federal judiciary the fact that politicians nominate and confirm federal judges and justices. (The president nominates and the Senate confirms.) The basis of this objection is that politicians are mostly unqualified to evaluate legal résumés and experience.

A refrain Posner employs to advance his argument — “Moving on” — might serve as his motto for judges, who, in his mind, must break free from undue restraints of the past. “The eighteenth-century United States, the nineteenth-century United States, much of the twentieth-century United States,” he submits, “might as well be foreign countries so far as providing concrete guidance (as distinct from inspiration) to solving today’s legal problems is concerned.” This isn’t meant to be hyperbole.

His citations to Wikipedia and tweets — yes, tweets — enact the forward-looking attitude he celebrates: he’s not afraid of new media or of pushing boundaries. Consider the time he asked his law clerks to doff and don certain work clothing to test facts presented by litigants in a case before him.

His advice to colleagues on the bench: Let clerks refer to you by your first name; do away with bench memos and write your own opinions; stop breaking for three-month recesses; stagger hiring periods for law clerks; don’t employ career clerks; don’t procrastinate; don’t get bogged down in procedure at the expense of substance; be concise; read more imaginative literature; avoid Latinisms; abolish standards of review. If you’re an appellate judge, preside over district-court trials. And whatever you do, look to the foreseeable future, not backward, for direction.

Readers of his most recent book, Divergent Paths, will recognize in these admonitions Posner’s distinctive pet peeves. He believes that judges who don’t author their opinions are weak or unable to write well. If judges were required to write their opinions, he supposes, fewer unqualified lawyers would sit on the bench: inexpert writers, not wanting to expose their deficiencies, would not accept the nomination to be a federal judge.

Posner’s love of good writing is so pronounced that he praises Scalia, his chosen nemesis, for his “excellent writing style.” He sprinkles references to Dante, Tennyson, Keats, Fitzgerald, Nietzsche, T. S. Eliot, Orwell, and Edmund Wilson and supplies epigrams by Auden, Yeats, and Alexander Pope. Those who didn’t know it wouldn’t be surprised to learn that Posner majored in English at Yale.

Still one comes away with the impression that he has sacrificed precision for speed. He appears to have cobbled together several blog posts and other articles of only ephemeral significance to pad his polemic. He discusses judges’ “priors” on page 116 but doesn’t define that term (“a mixture of temperament, ideology, ambition, and experience”) until page 148. Liberal with block quotes, scattered in focus, he recycles by-now familiar arguments against Bluebook and legal jargon and other staples of the legal academy. Even those who agree with him on these points will balk at the redundancy.

The repetition isn’t only at the thematic level: it involves diction and syntax. He tells us on page 408, “Pope Pius XII made peace with evolution in 1950.” Then a page later, he states, “The Church had had a ‘problem’ with evolution until Pius XII had made his peace with it in 1950.” On page five, he writes, “almost all federal judicial opinions are drafted by law clerks […] in the first instance, and edited more or less heavily by the judge.” He then echoes himself on page 22: “[M]ost judges (and Justices) require their law clerks to write the initial draft opinion, which the judge then edits.” He describes this same process again on page 276. “I write my own opinions,” he declares only to repeat himself later: “I write and edit my own opinions.” These are mere samples of a striking trend in Posner’s book.

A former law professor, Posner concludes by assigning grades to the federal judiciary in eight categories: selection of judges (B), judicial independence (A-), rule of law (A), finality of judgments (B), court structure (B), management (C), understanding and training (C), and compensation (B+). Total? Around a B average. For all the fuss, that’s a decent score.

Posner’s characteristic arrogance is grandly exhibited. “I’m a pretty well-known judge,” he assures us. His preface includes a short bibliography for “readers interested in learning more about me.” He names “yours truly” (i.e., himself) in his list of notables in the field of law-and-economics, an indisputable detail that a more humble person would have omitted. Posner’s self-importance can be charming or off-putting, depending on your feelings toward him.

Yet he’s honest. And forthright. Not just the federal judiciary but the entire legal profession thrives off mendacity, which is not the same as a lie or embellishment. It’s a more extravagant, systemic mode of false narrative that lawyers and judges tell themselves about themselves to rationalize and enjoy what they do. Posner sees through this mendacity and derides it for what it is. His frank irritability is strangely charming, and charmingly strange. The federal judiciary has lost a maverick but gained a needed detractor.

Talking “Of Bees and Boys” on “Writers’ Voices”

In Arts & Letters, Books, Creative Writing, Essays, Humanities, Literature, Writing on October 25, 2017 at 6:45 am

Allen Mendenhall Interviews Anton Piatigorsky, Author of “Al-Tounsi”

In Arts & Letters, Books, Creative Writing, Criminal Law, Fiction, Humanities, Justice, Law, liberal arts, Literature, Novels, Oliver Wendell Holmes Jr., Philosophy, Writing on October 4, 2017 at 6:45 am

AM: Thanks for discussing your debut novel with me, Anton.  It’s titled Al-Tounsi and involves U.S. Supreme Court justices who are laboring over a case about an Egyptian detainee held on a military base in the Philippines. How did you come up with this premise for a novel? 

AP:  I was interested in the intersection between contemporary legal and political issues and the personal lives of the justices. I was particularly impressed by the ways in which the writ of habeas corpus has been used (and suspended) throughout U.S. history.

The Great Writ is a heroic call to responsibility—a demand made by the judiciary for the executive to live up to its obligations to imprisoned individuals. While it has obvious political and social ramifications, it also has philosophical ones. It encourages moral and psychological reckoning: what are our responsibilities to others?

I was excited about writing a novel where two strains—the political and the personal—overlap and blend. I realized that if I fictionalized the important 2008 Guantanamo Bay case Boumediene vs. Bush—by changing key events, decisions and characters—I could use it as the basis for a novel about the Court that explores all my interests.

Anton Piatigorsky

AM: How did you decide to change directions and write about the law?  Did this case just jump out at you?  Your previous writings address a wide variety of subjects but not, that I can tell, law. 

AP:  I came to the law, strangely enough, through religion. I’ve long been interested in how religion functions, and especially in the ways that secular systems mimic religious ones. When I started reading about American law and the U.S. Supreme Court, I saw those institutions as a part of an Enlightenment era secular religion. From this perspective, law is a system of rituals, codes and writings that helps establish an identity for a community, a set of shared values and beliefs, and a way for people to function within the world. I found that fascinating. It inspired all sorts of questions.

What are the general beliefs about people and the world that lie beneath the American legal system? How are those beliefs enacted in cases, courts, and legal writings? How do they play out in the rituals of the Court?  How do the justices of the Supreme Court —who are, in some ways, high priests of the legal world — reconcile conflicts between their personal beliefs and the foundational beliefs of the legal system they guide?

The fictional stories I wanted to tell about justices’ lives grew out of these general questions. Those questions also led me into an investigation of the main case before them.

AM: One of the most fascinating parts of the book, to me, is the Afterword, which consists of the concurring opinion of the fictional Justice Rodney Sykes.

AP: I have always loved novels of ideas, when a character’s emotional journey overlaps with their complex thoughts and beliefs. Whenever that type of fiction really works — as it does with Dostoyevsky’s The Brothers Karamazov — the character’s philosophy or worldview stands alone as a work of non-fiction. And so the novel becomes part fiction, part critical thought. It functions as a critique on ideas that circulate in the real world.

That’s what I hoped to achieve for Justice Rodney Sykes’s formal opinion in the novel’s Afterword. I wanted Rodney to reach a powerful critique of basic tenets of the American legal system. I wanted him to address what our responsibilities are (or aren’t) towards others in the legal system, and the problems with that system’s fundamental faith in individual actors. In his concurrence, Rodney takes an unorthodox and unlikely stance for a Supreme Court Justice, but that’s what makes it a work of fiction. A novel can be the perfect forum to discuss how a real person might come to a radical decision, and how that decision might revolutionize their thoughts and actions.

AM: Who are your favorite living writers?

AP:  I particularly admire J.M. Coetzee and Alice Munro. I think about their works often while I’m writing and editing my own.

Coetzee has written several fantastic “novels of ideas.” Both Diary of a Bad Year and Elizabeth Costello manage to incorporate far-reaching critiques into their larger stories about characters, and they do so while using imaginative formal techniques. I also love Coetzee’s cold and austere style in his less overtly intellectual books. They’re cleanly written, shockingly honest, and endlessly compelling.

Alice Munro—although it’s almost a cliché to praise her at this point—shows remarkable insight into her characters, gradually revealing their motivations, resentments and surprising decisions without ever erasing their fundamental mysteries as people. Her stories are complex formally, but in such a quiet way that I often don’t notice their structures until I’ve read them a few times. Her writing is a great model for how to show characters’ lives and decisions with efficiency and imagination while maintaining mystery.

AM: Do you intend to continue in the novel form in your own writing?

AP:  Absolutely. I would love to write more legal fiction, as well. I’ve spent years learning about the law, but know that I’ve barely scratched the surface. There are so many potentially interesting legal stories. I’m also at the early stages of a new novel, which is not explicitly about law, but does feel like an outgrowth of Al-Tounsi in certain ways.

AM: I worked for a state Supreme Court justice for over three years, and I agree: there are many interesting legal stories out there, and I’ve found that facts are often stranger than fiction.

AP:  It must be fascinating to work on the diverse cases that roll through a court. I can only imagine how many potential stories you and other lawyers, judges and court workers can recall—ideas for a million novels and movies and plays.

I think legal stories are particularly exciting for fiction because they distill big questions into concrete human situations and personalities. The giant subjects of guilt and innocence, love and betrayal, responsibilities towards others as opposed to ourselves, community or self-reliance, greed, jealousy and ambition all play out in specific facts and events, in the concrete details of a case. It’s just like in a novel. And since the American legal system is, in my mind, an application of an entire Enlightenment, philosophic worldview, these test cases and stories also pose huge philosophical, ethical and moral questions. It’s no coincidence some of the best novels ever written involve detailed legal plots.

AM:  That reminds me of something Justice Holmes once said: “Law opens a way to philosophy as well as anything else.”  But it sounds as if you and I would go further and say it might open a way better than many other things do.

AP:  Law is like applied philosophy; It puts general ideas to the test in the real world. If a philosophy remains theoretical it never really touches what it means to live it, inside it. The answers theoretical philosophy provides are always tentative.

A huge inspiration for my novel was the work of the late French philosopher, Emmanuel Levinas. While Levinas’s writing is often arcane and difficult to get through, I find his thinking to be a powerful and searing indictment of basic Enlightenment principles. While I was writing Al-Tounsi, I used Levinas’s insights—directly—to help me construct Justice Sykes’s final concurrence. It was hugely inspiring to find a concrete way to use this philosophy I have long loved. All the questions and problems I was interested in exploring were present in this genuine legal situation, in the constitutional habeas corpus case, Boumediene vs. Bush, on which I based my fictional case of Al-Tounsi vs. Shaw.

So, yes, I completely agree with you and Justice Holmes!

AM:  So glad we had this opportunity to talk.  Let’s do it again.  

 

 

Playing the Hand You’re Dealt: A Short Story

In Arts & Letters, Fiction, Humanities, Literature, Short Story, Writing on September 27, 2017 at 6:45 am

John S. Maguire is a Telecommunications and FM Broadcast consultant living in Oklahoma City. He obtained a degree in English from Texas Christian University and at 53 years old went back to graduate school and obtained a Master in Fine Arts from Oklahoma City University. 

A cheer from somewhere else in the room snapped Jake back to the world. He had been playing poker, and winning, for approximately five hours and was desperately in need of a short break. That wasn’t in his future because Jake knew, among many other things, that you don’t stop playing when you’re hot. He looked around the room and saw that every table in the poker room was full. He was playing 2-5 no limit and felt so at home. The comfortable chairs, the greenest green of the felt on the table, the dealer throwing cards around in what looked like a storm of cardboard but hitting the imaginary mark in front of each player.

Yes, he was home.

He never felt more comfortable than at a poker table. He looked down at his stack of chips and counted roughly $1,200 worth. Not bad, considering he started with only $175. He couldn’t believe he was only $600 away from his goal of $1,800, enough to pay his past due mortgage and keep the bank off his back.

Before he began this poker session he hadn’t played poker, hadn’t had a drink and was faithful to his wife going on six years. In his mind Jake was a drunk, a gambler and a womanizer, but in his opinion he had put that all behind him. He didn’t listen to the professionals who said that he would always have to fight his addictions because in his own mind he had a stronger will than others who would drift back to their drugs or obsessions of choice. But living the simple life of a husband, a father. Being straight didn’t suit him and his will was tested daily. So much so that he failed at most everything he did and instead of being a good father, a good husband, he was failing to be the provider that he thought he should be.

He got up every morning, went to whatever job he had at the time and gutted his way through it, but it had been a while since he had a job and the bill collectors were looming. It was more than he could take when the mortgage company called and threatened legal action against him if he didn’t bring his mortgage current. By his estimation, if he could get approximately $1,800 he would have enough to get the past due part of his mortgage paid and have a little left over. He had to do it somehow. He was the father, the provider, and he had failed thus far. He wanted to do the only thing he was ever really good at, poker. That is to say he was a very good poker player as long as he didn’t drink. Alcohol and poker never mix, but particularly with Jake. When he mixed the two he generally lost and lost big and then found some casino whore to sleep with to make himself feel better.

He wanted to play poker. He wanted to play badly but he had no stake, no money to get into a game at the nearby casino. Then it occurred to him. The family kept a jar where they all put change in to help a family they had adapted in Peru. He went to the jar, poured the coins out on the table and quickly counted them. He saw maybe $150. He scooped up the coins and put them back into the jar, grabbed it, jumped into his car and headed for the local service station where there was a coinstar machine that would count the coins and give him cash, less the two or three percent that the company took for providing the service. It turned out there was approximately $180 in the jar and Jake netted $175. Not as much as he would like to start a game with but enough to make a run at it. He took the cash from the attendant, got in his car and headed south towards the casino, calling the poker room on the way to reserve a seat at the 2-5 no limit game.

“I am sorry, sir, but only regular players can reserve seats on the phone. Can I get you player’s club card and I will see what I can do?”

The poker room attendant didn’t recognize him and, forgetting he had been away six years, Jake was pissed off.

“This is Jake. I played there so often I could call an hour ahead and get a seat,” Jake screamed. “How long have you worked there?”

“Only about two years, sir. I am sorry if I have upset you. I have to follow the regulations.”

Jake, realizing there was no way this guy could know him, said, “Okay, Okay, I understand. I will be there in about 30 minutes. Ask around and see if someone remembers me.”

Jake arrived exactly 29 minutes after the call. He walked into the casino and directly toward the poker room. When he walked in a large man greeted him with a hug.

“Jake, I can’t believe you are back,” the man said.

“Roberto, thank God someone recognizes me,” Jake said. “Can I get into a game?”

“Sure, I got you a seat. The guy you talked to on the phone is new but he asked me and I told him to reserve you a seat. I have a 2-5 no limit seat on table 15 waiting for you. You need chips.”

Jake handed him the $175 and caught Roberto looking at him funny. “Look, it is my first day back. Get me the chips, okay, Roberto?”

Jake headed to table 15 and Roberto yelled at the dealer.

“Jake’s got $175 behind.”

Jake sat in seat #5 and was immediately dealt a hand. His palms were sweating and his mind was drifting to what his family might think, but he didn’t see any other way.

Now, Jake had been playing for five hours and couldn’t believe his stack was so large. He had confidence in his ability but deep down he wasn’t sure he could pull this off. He was so close but he couldn’t stop. Not until he had the $1,800.

Out of the corner of his eye he saw a cocktail waitress, called her over and ordered a scotch. He was hot, playing well, what would it hurt. The scotch was delivered just as Jake won a hand and his stack was growing rapidly. He threw the cocktail waitress enough chips to cover the drink and tip and told her to check with him often. The size of the tip made sure that she would.

Jake continued to win and continued to order drinks. Soon his stack was more than $1,800 and he thought about quitting then, but he was hot. This is easy, he thought. Why did I ever quit?

He was delivered his fourth scotch as a new hand was dealt. He looked at his two cards and took a log pull of his scotch. He had an ace and king, both spades. Big slick is the name for that hand and is one of the best starting hands a player could be dealt.

The bet was checked around to Jake and he bet $25 or 5 times the big blind. All but two of the players folded and then the community cards were dealt. The first three community cards were ten of spades, queen of spades, and eight of diamonds. Jake now had a flush draw and an inside straight draw. With another spade he would make a flush and with any ten he would have a straight.

Jake bet $100. One payer folded and one called. That was weird. That bet should have chased everyone out. Jake thought for a moment and then it hit him. The other player had two spades as well. If so Jake would win the hand big if another spade fell because he, Jake, had the top two spades. The next community card, known as the turn, was the eight of spades. There it was. Jake made his flush and hopefully the other player did as well.

Jake bet $300 and was immediately called by the other player. This told Jake that he was right and the other player had a flush. The next card, known as the river, fell and it was the two of diamonds. That card couldn’t have helped anyone. Jake announced that he was all in. He knew he had his guy. Soon he would have the money to pay the mortgage. As Jake suspected, the other player called the “all in” bet and Jake threw his cards on the table face up with a large smile on his face and looked at the other player. Wait, why was he smiling Jake thought. The other player threw his cards in the air and Jake knew he was beat before they hit the table. When they landed all the players saw two eights, giving the other player 4 of a kind and crushing Jake’s flush hand. Jake had lost it all. Not just the money to pay the mortgage, but the money that was to go to the adopted family in Peru.

Jake was speechless. He looked up and noticed the acoustical tile in the ceiling for the first time. They were dirty and showed the few leaks in the roof. He looked down and saw the player raking all of his chips into his own stack and laughing. Laughing! How could he laugh? Did he know how important that money was to Jake. He pushed his chair out from the table got up and started to walk out of the room. He had nothing left to do but leave.

“Jake, where are you going?” asked Roberto.

Jake’s head turned slowly, or so it seemed. He looked at Roberto and Jake guessed that he looked pretty bad as Roberto ducked his head and didn’t say anything else.

Jake made his way out of the poker room and to the exit of the casino. For a moment he forgot where his car was parked. He raised the remote locking device and clicked it and heard the honk of his car, saw the lights flick and made his way towards his car.

“Fucking idiot,” he whispered to himself.

Four Poems by Julia Nunnally Duncan

In Arts & Letters, Books, Creative Writing, Humanities, Literature, Poetry, Writing on July 26, 2017 at 6:45 am

Julia Nunnally Duncan is an award-winning poet, novelist, short story writer and essay writer who has authored nine books of poetry, fiction, and nonfiction. Her works often reflect upon people and events from the past, and she draws inspiration from her Western North Carolina upbringing. She holds an M.F.A. from Warren Wilson College and lives in North Carolina with her husband and daughter.

The following poems come from Julia Nunnally Duncan’s latest book, A Part of Me, published by Red Dirt Press.

Note:  Julia Nunnally Duncan will read poetry from her latest book, A Part of Me, at Malaprop’s Bookstore and Cafe in the Poetrio event, 3:00 p.m. on August 6, 2017, Sunday. Address: 55 Hayward Street, Asheville, NC. For more information contact Malaprop’s at: 828-254-6734.

Click here to purchase on Amazon

His Song

He sat at the back of the classroom
during the weeks of our course
and remained quiet,
a student older than the rest.
He put forth his best effort
at grammar exercises and essay writing—
the Composition and Rhetoric assignments
that must have seemed unfair
to a man whose life work would be
to install and repair electrical systems.
Yet he was eager to learn,
occasionally staying after class
to ask if he was on the right track.
And when for his process speech
he came in with a guitar
and pulled up a stool,
I feared it would be hard
for him to speak in front of the group.
But after a few words about how to string
and tune a guitar,
he began to sing a country ballad
with lyrics so romantic and a voice so tender
that I blushed.
When he finished his song,
the class was hushed for a moment
and then burst into applause.
All I could whisper was beautiful
and ask, “Where did you learn to sing that way?”
He didn’t say anything,
and his eyes didn’t meet mine.
His face down, he went quickly to his seat
to reclaim his humble place
at the back of the room.
That was years ago,
and though now I don’t recall his name,
that day and his song
will stay in my memory.

 

December Evening

I was young and a little afraid
of the residents at the nursing home
who sat in the dining hall,
awaiting the Christmas treats my church had brought.
A white-haired lady growled, “I don’t want no cake!”
but devoured a hefty piece and would have eaten more
if not for the staff who feared it would make her sick.
They all ate quickly,
then gathered in the common room
where an upright piano stood beside the decorated tree.
I played Christmas carols and familiar melodies—
“Away in a Manger” and “Rudolph the Red-Nosed Reindeer.”
A man stooped over me and crooned perfect lyrics
while others in their pajamas made up words as they went.
And so we spent time sharing food, and gifts, and song,
my fear of them gone,
that December evening forty years ago.

 

Paul’s Prayers

Often the preacher asked my uncle Paul
to lead us in prayer,
and our Baptist congregation grew still.
But when Paul’s baritone voice filled the sanctuary,
those compelled by the Spirit exclaimed Amen.
Paul proclaimed our gratitude for God’s blessings
and begged protection for our boys in foreign fields,
the Vietnam War having spilled the blood
of some from our community.
Two decades before,
Paul had been a young man
serving in North Africa in another war
that mangled his shoulder with shrapnel.
For weeks he lay in a VA hospital
and then fell back into his dissolute life.
But one day he found salvation
and thus began to pray for himself
and for all the rest of us.
Paul knew how to do it well.

 

President Ulysses S. Grant Three Days Before
Death From Throat Cancer July 20, 1885

Maybe because he was a skilled horseman
or that he loved his wife Julia so dearly
or that his last name was the same
as that of my great-great grandfather Samuel Bruce Grant
who also fought in the Civil War,
though on the opposing side—
maybe these are reasons why
I have looked at Ulysses S. Grant
not as an enemy of my Southern ancestors,
but as possible distant kin.
In the photograph
he sits in a rocking chair
on the front porch of his country home,
and he is surrounded by family.
His shoulders are draped in a shawl,
his face looks pale and gaunt,
and his beard has grown gray;
but his shiny top hat
seems a fashionable affront to the disease
that will soon take him away.
While the young girls in the picture look bored,
the women smile lightly,
as if to add an impression of gaiety to the scene.
But it is in Grant’s face—
his weary expression—
that I glean the truth.

The Circuitous Path of Papa and Ezra

In Arts & Letters, Essays, History, Humanities, liberal arts, Literary Theory & Criticism, Literature, Modernism, Politics, Western Civilization, Writing on May 24, 2017 at 6:45 am

This review originally appeared here in The American Conservative.

Ernest Hemingway, fresh off his marriage to Hadley Richardson, his first wife, arrived in Paris in 1921. Paris was a playground for writers and artists, offering respite from the radical politics spreading across Europe. Sherwood Anderson supplied Hemingway with a letter of introduction to Ezra Pound. The two litterateurs met at Sylvia Beach’s bookshop and struck up a friendship that would shape the world of letters.

They frolicked the streets of Paris as bohemians, joined by rambunctious and disillusioned painters, aesthetes, druggies, and drinkers. They smoked opium, inhabited salons, and delighted in casual soirées, fine champagnes, expensive caviars, and robust conversations about art, literature, and the avant-garde. Pound was, through 1923, exuberant, having fallen for Olga Rudge, his soon-to-be mistress, a young concert violinist with firm breasts, shapely curves, midnight hair, and long eyebrows and eyelashes. She exuded a kind of mystical sensuality unique among eccentric highbrow musicians; Pound found her irresistible.

Pound was known for his loyalty to friends. Although he had many companions besides Hemingway—among them William Butler Yeats, James Joyce, T.S. Eliot, Marianne Moore, Robert McAlmon, Gertrude Stein, e.e. cummings, Pablo Picasso, Wyndham Lewis, T.E. Hulme, William Carlos Williams, Walter Morse Rummel, Ford Madox Ford, Jean Cocteau, and Malcolm Cowley—Hemingway arguably did more than the others to reciprocate Pound’s favors, at least during the Paris years when he promoted Pound as Pound promoted others.

Pound was aware of Hemingway’s talent for publicity: he and Hemingway had combined their genius to promote Eliot’s The Waste Land. Hemingway introduced Pound to William Bird, an American reporter who arranged to publish an autobiographical piece about Pound’s childhood. Bird was instrumental to the eventual publication of Pound’s A Draft of XVI Cantos. Pound, for his part, secured for Hemingway a position as assistant editor of The Transatlantic Review. Their relationship matured into something symbiotic and mutually beneficial.

Pound edited Hemingway’s work, stripping his prose of excessive adjectives. Hemingway remarked that Pound had taught him “to distrust adjectives as I would later learn to distrust certain people in certain situations.” Unlike, say, Conrad Aiken or Robert Frost, who resisted Pound’s editing, Hemingway acquiesced to Pound’s revisions. In exchange, Hemingway taught Pound how to box. He acknowledged that the scraggly Pound had “developed a terrific wallop” and had “come along to beat the hell wit the gloves.” Hemingway worried that “I will get careless and [Pound] will knock me for a row of latrines.” He even treated Pound to a night at the prizefights to brighten Pound’s spirits as Pound battled various illnesses.

Pound, however, grew disillusioned with Paris, where his friends were gravitating toward socialism and communism. Paris, he decided, was not good for his waning health. Hemingway himself had been in and out of Paris, settling for a short time in Toronto. In 1923, accompanied by their wives, Pound and Hemingway undertook a walking tour of Italy. The fond memories of this rejuvenating getaway inspired Pound to return to Italy with his wife Dorothy Shakespear in 1924. They relocated, in 1925, to a picturesque hotel in Rapallo, a beautiful sea town in the province of Genoa, on the bright blue Tigullio Gulf.

Pound found the weather in Rapallo to be soothing and agreeable. It was Hemingway who had first recommended this scenic spot, having visited Sir Max Beerbohm there years before. Hemingway’s tales of the sunshine, swimming, tennis, and other outdoor activity in Rapallo appealed to Pound, who fancied himself an athlete. The fact that his mistress Olga frequented Italy—where her father owned a house—made Rapallo all the more desirable, as did Dorothy’s seeming willingness to share her husband with his lover.

The friendship remained intact as Pound settled into Rapallo. About to vacate Europe for Key West, Hemingway dashed off a missive to Pound that began “Dear Duce” and then boasted about how Papa, as people had begun to call Hemingway, was “going to know everything about fucking and fighting and eating and drinking and begging and stealing and living and dying.” Gradually, though, the Pound-Papa gulf widened.

The move to Italy also effectively terminated Pound’s glory years in Paris, about which Hemingway wrote affectionately:

So far we have Pound the major poet devoting, say, one fifth of his time to poetry. With the rest of his time he tries to advance the fortunes, both material and artistic, of his friends. He defends them when they are attacked, he gets them into magazines and out of jail. He loans them money. He sells their pictures. He arranges concerts for them. He writes articles about them. He introduces them to wealthy women. He gets publishers to take their books. He sits up all night with them when they claim to be dying and he witnesses their wills. He advances them hospital expenses and persuades them from suicide. And in the end a few of them refrain from knifing him at the first opportunity.

This last line is both teasing and fitting because there was, in fact, at least one assailant in Paris who didn’t refrain: a man who attempted to stab Pound at a dinner party hosted by the surrealists.

Hemingway guessed that Pound might stay in Italy “sometime” even if he took “no interest in Italian politics.” Hemingway was right about Pound’s love for Rapallo but wrong about his political affinities. More than anything else, Italian politics—and the rise of fascism—damaged Hemingway’s regard for Pound, who became a zealous supporter of Mussolini and a reckless trafficker in conspiracy theories.

Hemingway grumbled that if Pound “actually and honest to God … admire[d] and respect[ed] … [Mussolini] and his works [then] all I can say is SHIT.” Hemingway, true to character, remained manfully playful, stating, “I will take practical steps by denouncing you here in Paris as a dangerous anti-fascist and we can amuse one another by counting the hours before you get beaten up in spite of your probity—which in such a fine country as it must be would undoubtedly save you.” Such slight criticisms may have been colored with a lighthearted tone, but the disapproval was plain.

When Hemingway and Guy Hickock visited Pound in northern Italy in 1927, Pound was living in self-imposed exile. Hemingway had recently converted to Catholicism and was enjoying renewed fame after the publication of The Sun Also Rises. He divorced and remarried that year, offering Hadley a portion of the profit from The Sun Also Rises as part of their divorce. Pound, meanwhile, was immersing himself in political theories that likely baffled Hemingway as much as they angered him.

Shortly after the stock-market crash in 1929 and the onset of a worldwide economic crisis, Pound took to writing in Italian. Mussolini’s March on Rome had occurred seven years earlier, and since then he had assumed dictatorial control of Italy, suppressed opposition parties, and built a police state. Pound was enthralled. He met Mussolini in 1933, peddling strange monetary schemes to the fascist leader.

In 1933 Pound and Hemingway exchanged letters that highlighted their diverging attitudes toward Mussolini, fascism, and government. Pound, who’d embraced wild and polemical speculations about the economic theories of the American Founders—Jefferson in particular—began to decry capitalism and taxation while celebrating fiat currency and a convoluted system of state central planning. “Since when are you an economist, pal?” Hemingway mocked. “The last I knew you you were a fuckin’ bassoon player.” Hemingway offered Pound some money, sensing that money was needed, but Pound declined it.

Pound was now enamored with Il Duce; Hemingway was furious. Hemingway hated government, he told Pound, and preferred organized anarchism and masculine sport to statist ideology. Hemingway saw through Pound’s charlatanic flourishes and economic fallacies and accused Pound, quite rightly, of lacking clarity. Yet Pound’s admiration for Hemingway’s work did not diminish, and Pound, ever devoted, included Hemingway in an anthology that he was then editing.

Possibly the last time Pound and Hemingway saw each other, they were having dinner with Joyce on a warm summer night in Paris. Pound allegedly bloviated about economics and the decline of art and European civilization, and Hemingway and Joyce feared that Pound had gone mad. The date and details of the dinner are a matter of debate, as is the veracity of any account of that evening. But one thing is certain: Hemingway was frustrated with Pound’s embrace of Italian fascism. By the time Pound voiced support for Franco in the Spanish Civil War, putting him once again at odds with Hemingway, their once thriving friendship had deteriorated beyond repair.

The falling out was no secret, and other writers took sides. William Carlos Williams wrote to Pound in 1938, saying, “It is you, not Hemingway, in this case who is playing directly into the hands of the International Bankers.” Hemingway conveyed his concerns about Pound to their friend Archibald MacLeish:

Thanks for sending the stats of Ezra’s rantings. He is obviously crazy. I think you might prove he was crazy as far back as the latter Cantos. He deserves punishment and disgrace but what he really deserves most is ridicule. He should not be hanged and he should not be made a martyr of. He has a long history of generosity and unselfish aid to other artists and he is one of the greatest living poets. It is impossible to believe that anyone in his right mind could utter the vile, absolutely idiotic drivel he has broadcast. His friends who knew him and who watched the warpeing [sic] and twisting and decay of his mind and his judgement [sic] should defend him and explain him on that basis. It will be a completely unpopular but an absolutely necessary thing to do. I have had no correspondence with him for ten years and the last time I saw him was in 1933 when Joyce asked me to come to make it easier haveing [sic] Ezra at his house. Ezra was moderately whacky then. The broadcasts are absolutely balmy. I wish we could talk the whole damned thing over. But you can count on me for anything an honest man should do.

Hemingway was referring to Pound’s notoriety as a propagandist for radio and newspaper during the Second World War.  When he received transcripts of Pound’s radio broadcasts, he surmised that Pound was “obviously crazy” for espousing such “vile, absolutely idiotic drivel.” Pound was a “crazy … and harmless traitor,” Hemingway concluded, and an “idiot” with a “distracted mind” who “ought to go to the loony bin.” And that’s precisely where Pound ended up: He was admitted to St. Elizabeth’s Hospital in Washington, DC, in 1945.

Pound’s friends put their reputations at stake to help him. MacLeish, expressing both love and admonition, dashed off these words in a missive to Pound:

… your information is all second-hand and distorted. You saw nothing with your own eyes. And what you did see—Fascism and Nazism—you didn’t understand: you thought Musso belonged in Jefferson’s tradition and God knows where you thought Hitler belonged. I think your views of the history of our time are just about as wrong as views can be. But I won’t sit by and see you held in confinement because of your views. Which is what is really happening now. I am doing what I am doing partly because I revere you as a poet and partly because I love this Republic and can’t be quiet when it violates its own convictions.

MacLeish helped to orchestrate Pound’s release from St. Elizabeth’s, drafting a letter to the government on Pound’s behalf that included Hemingway’s signature, along with those of Robert Frost and T.S. Eliot. A year later Hemingway provided a statement of support for Pound to be used in a court hearing regarding the dismissal of an indictment against Pound.

Hemingway, who was now living in Cuba, did little else to help Pound. More for practical reasons than personal conviction, Hemingway, who was himself targeted by the American government, refused to sign a petition of amnesty for Pound. The petition had been Olga’s idea, and Hemingway didn’t believe the American people would rally behind the desperate pleas of an adulterous lover. Hemingway never visited Pound at St. Elizabeth’s, but he did tell Pound, via Dorothy, that he had read and enjoyed The Pisan Cantos. And when he won the Nobel Prize in 1954, Hemingway announced that the year was good for releasing poets, a not-so-slight reference to his old friend.

Hemingway awoke on the morning of July 2, 1961, put a 12-gauge, double-barreled shotgun to his head, and, alone in the foyer of his home, blew his brains out. He was 61. Pound’s friends and family didn’t tell him about Hemingway’s death, but a careless nurse did, and Pound reacted hysterically. The older of the two, Pound, at 72, was free from St. Elizabeth’s, where he’d spent 12 solemn years. He had returned to his beloved Italy to finish out his long and full life. In the autumn of 1972, he died peacefully in his sleep in Venice, the day after his birthday, which he’d spent in the company of friends.

Dysfunction Always Travels

In Arts & Letters, Creative Writing, Fiction, Humanities, Literature, Short Story, Writing on April 5, 2017 at 6:45 am

John S. Maguire is a Telecommunications and FM Broadcast consultant living in Oklahoma City. He obtained a degree in English from Texas Christian University and at 53 years old went back to graduate school and obtained a Master in Fine Arts from Oklahoma City University. 

I didn’t sleep much the night before and awoke early to get ready. It was the first day of spring break of my first year in high school and it had been decided long ago that we would, as a family, drive to South Padre Island, Texas, one of the great southwest meccas of spring breakers, young and old. Specifically, everyone in my high school went to “Padre” for spring break. While I had been there before, this would be my first time as a high schooler and thus was particularly noteworthy, based on what was happening to the girls in my class. Their bodies had seemed to get slimmer, their legs got longer and some more important areas of their bodies were growing faster than I could keep track of. Daydreams of these girls and their new bodies shoehorned into tiny bikinis clouded my night and consumed my days as the date of our departure neared. Now that day was finally here and to say I woke up excited is not to fully explain what was going on in my body.

I hadn’t seen my father before I went to bed the night before and made the assumption that he was out drinking and would be slow to get up to pack the Ford Country Squire Wagon for the long 14-hour drive. I was wrong. He was up early, just after me, and when he saw me awake he yelled at me to come help him. I knew what he was calling me for. As with every other trip we had taken by car, I had to gather up all the bags that were packed the night before. I was one of the men in the house and that was what was expected of me.

As I gathered the suitcases, I pondered a question that has been asked since the first time man moved from place to place: Why do women pack so much more than men? I carried one suitcase after another out to the driveway as I saw my father mixing a screwdriver in the kitchen. He knew that it would take me fifteen minutes or so to get all of them out by the car, so he had time for a little hair of the dog. I reported back to him when I had them all ready for the pack and he swallowed the last bit of his drink, smiled and said: “Orange Juice, great way to start the day.” We both laughed as he led me outside to help him get the bags on the roof of the car. I handed each bag up to him as he placed them like puzzle pieces within the confines of the luggage rack. Sober, drunk or hungover, my father took great pride in packing the car. When he had completed packing for some trip or another he would always get down from the roof of the car to admire his work. It was, in fact, amazing that he could fit that much in that small of a space and have it be so well organized. The load on the car could not have been stacked better by the Egyptian pyramid builders.

“Who else could pack a car like that?” he stated proudly.

Next came the ropes.

“Son, go in the garage and get those tie downs,” my father told me.

We would be traveling on the highway and I was sure at speeds much higher than the limit of the law and possibly of the car itself, so the bags needed, no matter how perfectly they were packed, to be tied down.

I was there and back in seconds, wanting the praise of my father, but he was too busy mixing another screwdriver to get him through the tie-down process to come. After a quick chug of his drink he came back out and first tied one end of the rope to the front of the luggage rack and then, with my help, began to loop the rope though the railings from side to side until the rope was at the back end. He looped the rope twice around the back of the rack.

“Let’s leave the tie down loose for now as the girls might have some more to pack,” he said.

More to pack? More to pack? Were we going to tie granny’s rocking chair down so she could sit on the roof on the way to “swimming pools and movie stars”? The car already looked as if we were fleeing the dust bowl, but he was probably right.

He scurried back into the house for his third screwdriver. It was only 7:30 am. I followed him in and went to watch TV, as I knew, from experience, that it would be some time before the family girls would be ready. After about thirty minutes of TV time, I heard the rest of my family stirring and got up in anticipation of finally beginning our fourteen-hour pilgrimage to Padre Island for a week of sun, sand, and bikinis. In reality, it took another thirty minutes to get everything ready and in the car but finally we were driving out of our driveway, on the side roads and eventually onto I-35 toward the border of Oklahoma and Texas.

Once on the highway, my father handed me his prized doctor’s bag that held his whiskey, vodka, mixes, and glasses, asking me to pour him a small Chivas. I had been the “Keeper of the Bag” for a couple of years so I knew exactly what he wanted. A double shot of Chivas Regal scotch. He was ready to cover some ground and needed to get primed. I poured the drink and handed it up to him just as he accelerated far beyond the legal speed limit, finally feeling like himself again after the long night before.

First hour. First Scotch. At this pace it would not only be a long day, but night as well. I wasn’t concerned about our safety, as I had been mixing drinks for a while and had always arrived home safely. I assumed that he would not need a drink for a while so I dozed off to sleep, hoping that would make me stop thinking about the buxom bodies that would be wearing bikinis. Other than packing the car and mixing drinks, all I could think about was bikinis. It was hard to sit still in the cramped wagon, particularly as I had to shift positions regularly.

About an hour later, out of the corner of my eye, I saw something fly by the back window. I focused on what it was as it slid down the highway and finally came into view. It was a suitcase moving as fast north as we were south. In fact, it looked familiar.

“It couldn’t be,” I thought.

It was.

It was one of my mother’s suitcases and the cars behind us were dodging it as if they were playing some weird game of bumper cars. The last car didn’t quite make its swerve fast enough and clipped the suitcase, causing it to open—well, more correctly, to explode, as clothes flew through the air. Some of my mother’s clothes landed on that car’s windshield and blocked the view of its driver for a moment. I saw him reach out his driver’s window, grab the clothes and pull them inside.

I was panicked. Should I say something or act as if I were asleep? In our family, “kill the messenger” was a sport and I didn’t want to be sacrificed. I quickly put my head down and pretended to sleep. Safety first, I decided. Unfortunately, I hadn’t closed my eyes longer than ten seconds when I heard a loud squeal from my part of the car. I guessed that my sister had seen the bag, so I acted as though I were just then waking up and asked her what was going on.

“All of our bags are falling off the roof!” she screamed.

I looked back and feigned surprise as I saw bag after bag fly off the roof and onto the highway. Some exploded on contact; others were hit by oncoming cars and exploded. Clothes of every sort formed a huge cloud on the highway. As my father looked in the rear view mirror he spilled his drink.

“Son of a bitch!” he screamed more at his crotch being covered in scotch than at the luggage flying off the roof. “What in the fuck is going on?” I continued to stare as each bag hit the highway. I was sure this would be the cause of a huge pile up, but the cars successfully negotiated the flying debris with little trouble.

When my father finally pulled over to the side of the road to assess the situation my mother was screaming, crying and shouting.

“My clothes are all over the side of the road!” she shouted, between her sobs and screams.

Somewhere, somehow, my father was always able to tune my mother out, that is until he wasn’t able to and then took matters into his own hands, literally. My father got out of the car, looked down the highway to see the bags and looked up at the roof of the car to see a tie-down rope flying loosely in the wind.

“God damn it, John!” he screamed. “You didn’t tie the rope tight enough and it came loose.” At that moment everyone stared at me. If they could produce fire from their eyes I would have been incinerated. My brain went into overtime as I searched my memory for what had happened when we were packing the luggage on the car. Then it came to me. My father had not tied the rope off since he didn’t know if everything was packed yet. Happy that I had figured it out and it wasn’t my fault, I hadn’t considered that my father didn’t want it to be his fault either. I jumped out of the car to explain.

“Dad, remember when we were packing and you just looped the rope around the back rack to see if there was anything else that needed to go on the roof?” I asked.

“What? Don’t blame this on me, you son of a bitch,” he said as his left hand drew back, came forward, and hit me in the face. I fell on the ground as my cheek stung as though it had been burned in the sun for hours. I had become numb to the strikes but this time I wasn’t at fault. I knew I was right, but to go on would mean that this would get worse. I was so angry but couldn’t express it. All this emotion had to get out somehow so I started crying. That is how I dealt with my anger from that moment on. My father seemed to never hit me when I cried and it didn’t take me long to figure out the pattern.

“Now you get started down the highway picking up all the clothes you can find and bring them here. I’ll get the suitcases back to the car so you can repack everything,” he said. “Stop crying and get up and get moving.”

I got up slowly and started walking down the shoulder of the highway as cars whooshed by me at breakneck speed, some drivers honking and laughing as they saw the clothes and the suitcases. This was going to be embarrassing since I had to retrieve clothes belonging to my older and younger sister, as well as my mother. I was right to be concerned. The first piece of clothing I approached was one of my mother’s bras. I stared at it for a moment and wasn’t really sure how I felt about it. I knew then that this would be the first bra that I touched. Why did it have to be my mother’s? I grabbed it dutifully and went to the next. It seemed as though I were a magnet for undergarments; I soon had a handful of bras, panties and assorted underthings. I started back to the car with my first load and as I got close enough to the car for my sisters to see what I was carrying, they both screamed, ran at me, knocking me down and grabbing their panties and bras, leaving me with only my mother’s undergarments to place in the suitcase. If I wasn’t humiliated by then I certainly was now. I turned quickly to go back for more and saw that both sisters were on their way down the highway to get their own clothes so as not to risk my seeing their unmentionables. Fine with me. I would stick to the clothes and leave the rest for them.

As I arrived with my second load consisting mostly of my and my father’s clothes, I noticed my father sitting in the front seat of the wagon, car started and air conditioner on. He was pouring a drink, and I was pissed. All of this was his fault and yet I had to take the blame, risk my life on the shoulder of the highway and pick up clothes. I stared at him for a minute and then realized that I didn’t want another backhand so I turned to retrieve more clothes. After a couple of hours or so, and two drinks, we had finished collecting the clothes that could be found and had packed them back into their suitcases. My father stumbled out of the air-conditioned car, onto the hood, and up to the roof. I handed him up the bags and when I finished he tied them off.

“Get away from here, boy. You fucked it up last time. I’ll do it right this time,” he said just loud enough for everyone to hear. “Go sit in the car with the girls.” I did as I was told and wedged myself into the back vinyl seat. It was midday and getting hot so the vinyl had heated up and burned as I sat. My father got back in the car, mixed another drink on his own, not allowing me to mix it for him, put the car in drive, and we were on the road again. I lay my head down, pissed that I was blamed for something I didn’t do and tried with everything I had to remember the bikinis I had imagined on the beach and in the hotels and, well, just about everywhere, but all that kept coming to mind was the sight of my mom’s bra and me carrying it up the highway.

 

Love and the Law Professors

In Academia, Arts & Letters, Book Reviews, Books, Conservatism, Jurisprudence, Law, Law School, Legal Education & Pedagogy, Legal Research & Writing, Liberalism, Oliver Wendell Holmes Jr., Pedagogy, Scholarship, Teaching, Writing on March 29, 2017 at 6:45 am

This review originally appeared here in The University Bookman. 

As improbable as it sounds, someone has written “a love letter to the teaching of law.” At least that’s what Stephen B. Presser sets out to do in Law Professors, which is less pedagogical than it is historical and biographical in approach. If not a love letter, it’s at minimum a labor of love about the genealogy of American legal education, for which Presser is admirably passionate.

Even more improbable is how a book about three centuries of law professors could be enjoyable. Yet it is. Every rising law student in the United States should read it as a primer; experienced legal educators should consult it to refresh their memory about the history and purpose of their profession.

Presser is the Raoul Berger Professor of Legal History Emeritus at Northwestern University’s Prizker School of Law and the legal-affairs editor of Chronicles. He’s a leading voice of what is sometime referred to as paleoconservatism, who maintains that our political dysfunction derives in part from the methods and jurisprudence of law professors. His book might be called a diagnosis of our social ailments, the cure being the repurposing of legal education.

Beneath his silhouettes—two involve fictional figures (Lewis Eliot and Charles Kingsfield) while the other twenty deal with actual flesh-and-blood teachers—lies a structural dualism that enables him to classify his subjects under mutually exclusive heads: those who believe in higher law and divine order, and those who believe that laws are merely commands of some human sovereign. The former recognize natural law, whereby rules and norms are antecedent to human promulgation, whereas the latter promote positivism, or the concept of law as socially constructed, i.e., ordered and instituted by human rulers.

These binaries, Presser says, explain the difference between “common lawyers and codifiers,” “advocates of Constitutional original understanding and a living Constitution,” and “economic analysts of law and Critical Legal Studies.” Here the dualism collapses into itself. The common-law method is at odds with originalism in that it is evolutionary, reflecting the changing mores and values of local populations in a bottom-up rather than a top-down process of deciphering governing norms. Constitutionalism, especially the originalism practiced by Justice Scalia, treats the social contract created by a small group of founding framers as fixed and unamendable except on its own terms. The law-and-economics movement as represented by Judge Posner and Judge Easterbrook is difficult to square with natural law because it’s predicated on cost-benefit analysis and utilitarianism. In short, it’s a stretch to group the common law, originalism, and the law-and-economics movements together, just as it’s strange to conflate legislative codification with critical legal studies. Distinctions between these schools and traditions are important, and with regard to certain law professors, the binaries Presser erects are permeable, not rigid or absolute.

Presser’s narrative is one of decline, spanning from the late eighteenth century to the present day. It begins with Sir William Blackstone, “the first of the great modern law professors.” Presser may overstate the degree to which Blackstone propounded a common-law paradigm that was frozen or static and characterized by biblical principles. The influence of Christianity and moral principles is unmistakable in Blackstone’s Commentaries on the Law of England, especially in its introductory and more general sections, but the vast majority of the treatise—which was intended for an audience of young aspiring lawyers, not scholars or jurists—describes basic, mundane elements of the British legal system and organizes judicial principles and decisions topically for ease of reference. Presser is right that, more than anyone else, Blackstone influenced early American lawyers and their conception that the common law conformed to universal, uniform Christian values, but Jefferson’s more secular articulation of natural law as rooted in nature had its own adherents.

Other teachers included here are James Wilson (after whom Hadley Arkes has named a fine institute), Joseph Story (whose commitment to natural law is offset by his federalist and nationalist leanings), Christopher Columbus Langdell (whose “original and continuing impact on American legal education is unparalleled”), Oliver Wendell Holmes Jr. (whose career as a professor was short and undistinguished), John Henry Wigmore (whose “sometimes idol” was Holmes), Roscoe Pound (“a figure of extraordinary talent”), Karl Llewellyn (the “avatar” of the legal-realist movement), Felix Frankfurter (“no longer the God-like figure at Harvard”), Herbert Wechsler (“the anti-Holmes”), Ronald Dworkin (who reformulated the theories of John Rawls), Richard Posner (the subject of William Domnarski’s recent biography), Antonin Scalia (“best known for his bold conservative jurisprudence”), and several still-living contemporaries.

Presser is particularly hard on Holmes, relying on Albert Alschuler’s harsh and often careless assessments of the Magnificent Yankee. He charges Holmes with embracing the view that judges were essentially legislators and suggests that Holmes was “policy-oriented.” Although this portrayal is popular, it is not entirely accurate. In fact, Holmes’s jurisprudence was marked not by crude command theory (the Benthamite version of which he adamantly rejected) but by deference and restraint. Presser himself recalls Alschuler in claiming that Holmes “was prepared to approve of virtually anything any legislature did.”

So was Holmes a policy-oriented judge legislating from the bench, or did he defer to legislatures? Undoubtedly the latter. Only once during his twenty years on the Massachusetts Supreme Judicial Court did he hold legislation to be unconstitutional. As a Supreme Court Justice, he almost programmatically deferred to state law. “[A] state legislature,” he said, “can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States,” adding that courts “should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.” Rather than imposing his personal policy preferences, Holmes believed that a judge’s “first business is to see that the game is played according to the rules whether [he] like[s] them or not.” If Holmes’s conception of judicial restraint and the Fourteenth Amendment had carried the day, the holdings in Roe v. Wade, Planned Parenthood v. Casey, Lawrence v. Texas, and Obergefell v. Hodges, among others, would not have occurred.

Presser admittedly doesn’t like Holmes, but he is polite about it. There’s a charming sense of collegiality in his assessments of his contemporaries as well. He boasts of his own traditionalism without hesitating to call Duncan Kennedy and Catharine MacKinnon “brilliant.” He disagrees with his opponents without denigrating their intelligence and expresses gratitude to faculty whose politics differ radically from his own. He describes a variety of disciplinary schools, including critical race theory, which don’t appeal to him. And he gives some unjustly neglected thinkers (e.g., Mary Ann Glendon) the attention they rightly deserve while some overrated thinkers (e.g., Cass Sunstein) receive the attention they relish.

President Obama is held up as the quintessential modern law professor, the type of haughty pedagogue responsible for the demise of the rule of law and the widespread disregard for constitutional mandates and restrictions. Yet law professors as a class weren’t always bad; in fact, they once, according to Presser, contributed marvelously to the moral, spiritual, and religious life of America. Presser hopes for a return to that era. He wishes to restore a proper understanding of natural law and the common-law tradition. His conclusion takes a tendentious turn that reveals his abiding conservatism. Those who agree with him will finish reading this book on a high note. His political adversaries, however, may question whether they missed some latent political message in earlier chapters.

But isn’t that the nature of love letters—to mean more than they say and say more than they mean? Presser’s love letter to law teaching is enjoyable to read and draws attention to the far-reaching consequences of mundane classroom instruction. He’s a trustworthy voice in these loud and rowdy times.

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