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Posts Tagged ‘Lawyer’

James Elkins and the Lawyer Poets

In Arts & Letters, Creative Writing, Creativity, Humanities, Law, Legal Education & Pedagogy, Literary Theory & Criticism, News Release, Poetry, Writing on November 14, 2013 at 8:45 am

Lawyer Poets and That World We Call Law

James Elkins of West Virginia University College of Law has edited Lawyer Poets and That World We Call Law (Pleasure Boat Studio, 2013), an anthology of poems about the practice of law.  Professor Elkins has been the longtime editor of Legal Studies Forum.  Contributors to the anthology include Lee Wm. Atkinson, Richard Bank, Michael Blumenthal, Ace Boggess, David Bristol, Lee Warner Brooks, MC Bruce, Laura Chalar, James Clarke, Martin Espada, Rachel Contreni Flynn, Katya Giritsky, Howard Gofreed, Nancy A. Henry, Susan Holahan, Paul Homer, Lawrence Joseph, Kenneth King, John Charles Kleefeld, Richard Krech, Bruce Laxalt, David  Leightty, John Levy, Greg McBride, James McKenna, Betsy McKenzie, Joyce Meyers, Jesse Mountjoy, Tim Nolan, Simon Perchik, Carl Reisman, Charles Reynard,  Steven M. Richman, Lee Robinson, Kristen Roedell, Barbara B. Rollins, Lawrence Russ, Michael Sowder, Ann Tweedy, Charles Williams, Kathleen Winter, and Warren Wolfson.

James Elkins

James Elkins
Professor of Law and Benedum Distinguished Scholar, West Virginia University College of Law

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The Lawyer as Rationalist

In Arts & Letters, Conservatism, History, Law, Philosophy on April 17, 2013 at 8:45 am

Allen Mendenhall

The rationalist lawyer does not disparage an ideal on the grounds that it does not work or cannot be tried.  “He has no sense of the cumulation of experience,” Michael Oakeshott bemoaned of the rationalist, “only of the readiness of experience when it has been converted into a formula: the past is significant to him only as an encumbrance.”[1]  The lawyer is a rationalist insofar as he is interested in a past that supplies him with the precedents and procedures that steer his practice and win his battles; such a past is an encumbrance because it never exists in the pure form that the lawyer seeks and needs.  Therefore, the lawyer must push against the past, reinvent it, stretch it, mold it into a usable form; the past, for him, is a religion of malleability: to be faithful to it is to rewrite or reinterpret it.

The lawyer, being a rationalist, minces words and retards conventions to achieve the goals that benefit him and his client, paying little regard to whether his chosen grammar and syntax will impair the harmony of the community.  He is trained, not educated; progressive, not conservative.  His aim is to innovate in the service of short-lived victories.  To be a good lawyer is not necessarily or even usually to be a moral or thoughtful person; it is to zealously represent the client by aligning the law with the facts of the case as they have been filtered through the minds and mouths of the parties.  It is to prevail by fusing abstract rules with secondhand information.  The lawyer, accordingly, is intelligent—highly so—but not honorable or ethical.  He is, in short, a repository into which filtered discourse flows, and through which discourse is enunciated into the machine of the system for further processing.

“[H]aving cut himself off from the traditional knowledge of his society, and denied the value of education more extensive than a training in a technique of analysis,” Oakeshott persists of the rationalist—or, for my purposes, the lawyer—“is apt to attribute to mankind a necessary inexperience in all the critical moments of life.”[2]  Hence the trouble with the lawyer: his ambition is rarely tempered by his inadequacies, his analytic mind seeks out models for the mastery of human behavior, his poise in the face of adversity betrays his naiveté, his reliance on his own intents and purposes for action (rather than on those of his ancestors or immediate community) reveals a grave shortsightedness that can lead only to subtle and progressive harm.

Do not misunderstand me: what I call “the lawyer” is an archetype, not a group of named individuals.  The common legal practitioner is not an Iago bent on weaving webs of wickedness with motives only sinister.  But the lawyer archetype, like all archetypes, contains truth.  It is because Atticus Finch is so unlike the typical lawyer that he stands out in our memory and is said to have redeemed the law.  Lawyer jokes did not arise in a vacuum; and the rules of ethics and professional responsibility did not come about because the public considered lawyers to be noble and upright.  So, when I refer to “the lawyer,” I do not mean any one man or woman, nor each and every lawyer, but I do mean to signal (1) the symbol of the lawyer that is based on real patterns of behavior, which are passed from one generation of lawyers to the next; (2) a personality type that can and has been observed in lawyers in different times and places; and (3) a model that lawyers have emulated and perpetuated to their own detriment.


[1] Michael Oakeshott, Rationalism in Politics and Other Essays (Indianapolis: Liberty Fund, 1991), p. 6.

[2] Id. at 7.

“Fairy Tale Mail,” Poems by Margery Hauser

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

Liberty and Shakespeare, Part Two

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

Allen Mendenhall

The following essay orginally appeared here at Mises Daily.

The Later Works (1973 to present)

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

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

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

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

*Justice Ginsburg suggests research into alternate candidate, Florio.

Retired Justices
O’Connor Not Stratford
Blackmun* Oxford
Brennan* Stratford

*Deceased

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

Truth and the Virtue of Candor: Advocacy as Art

In Advocacy, Arts & Letters, Communication, Information Design, Legal Education & Pedagogy, Legal Research & Writing, Rhetoric, Rhetoric & Communication, Writing on February 21, 2011 at 10:13 pm

Jonathan Board lives in Northern Appalachia with his wife and three children.  A graduate of West Virginia University College of Law, he has also attended Harvard Extension School, Fairmont State University, and the University of Cincinnati. Beyond legal commentary, he enjoys civic and community volunteerism, theological and ethical discourse, technologies, and athletic coaching.

Truth and the Virtue of Candor: Advocacy as Art

The truth is that no law student in America receives competent training in the art of advocacy.  [] Generations of students [have been produced] who at graduation were utterly unqualified to do anything except what their professors did—study the law.[1]

The art of warfare is defined as deception. Sun Tzu said, “When able to attack, we must seem unable; when using our forces, we must seem inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near.  Hold out baits to entice the enemy.  Feign disorder, and crush him.”[2]  Similarly, the art of legislation, as John Quincy Adams observed, is the ability “to do a thing by assuming the appearance of preventing it.  To prevent a thing by assuming that of doing it.”[3]  The art of business is that “set of dynamic, integrated decisions, that you must make in order to position your business in its complex environment.”[4]  Surprisingly, the art of advocacy, which, unlike war and, to differing degrees, legislation and business, affects every aspect of life. Yet, it is left without scholarly definition, thus begging the question: what is it? I submit that the art of advocacy is a combination of many elements—storytelling, play-acting, artistic expression.  As the opening quote suggests, the legal education system today focuses almost entirely on the methods and techniques of legal research, not on true advocacy.  This is due, at least in part, to the adoption of the “case method” style of study.  Case methodology was developed by Christopher Columbus Langdell during his professorship at Harvard over a century ago.[5]  This style of study is infused with pragmatism, and focuses almost entirely on legal research and teaching through the process of inference.  Although research is arguably one of the more important aspects of the profession and practice of law, it is, in fact, only one aspect.  Langdell’s technique overlooks the fact that advocacy is an essential aspect of the practice of law, and, as such, requires the mastery of numerous oratory skills.  However, Langdellian theory has infected the legal profession to the point that many legal scholars consider the teaching of these oral advocacy “arts” as nothing more than juvenile exercises—something that must be shunned in the hallowed halls of legal academia.[6] Read the rest of this entry »

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