Lawyers and Literature FAQ: Or, Frequently Asked Questions, Imagined on Your Behalf
| james r. elkins | posted: November, 2005 | revised: April, 2006 & July, 2007 | What are we going to do in this course? We’re going to read stories and talk about them. Or maybe, I should say, we’re going to read stories and try to talk about them. And then, presumably, you’ll take these stories (and others you’ve read)(and our efforts to talk about them) and write about the stories and your reading of them. I made three decisions that have fundamentally shaped the course: We will read texts that involve lawyers or law student. The assigned works are fictional. Each of the assigned novels or stories are, arguably, “literary” in nature. Does "Lawyers and Literature" have any relation to our other law school courses? When we set out as law students and law teachers to read novels and lawyer stories an explanation is in order. Students, with the savoy sense of insiders, know that “Lawyers and Literature” is a marginal enterprise in the law school curriculum. A course having no institutional history, blessed (or cursed) with no “canon” or consensually agreed upon “required” texts, leaves both teacher and students with the greatest possible freedom, and the equally great danger of getting lost in uncharted terrain. By marginal, I mean that students may ask questions about the course they would never think to ask about a more traditional course. Courses that are part of the legal education “canon” have secured a place for themselves that put them beyond question. In a traditional course like contracts or Constitutional Law or Administrative Law the student does find it strange at all that the teacher doesn’t spell out what might lie ahead. While a course syllabus may be provided (law schools and universities often require them as a matter of policy) in a traditional course, it is often less a course map and more a schedule of course readings and assignments. It seems fair to say that legal case opinions are the primary "texts" for learning law. The only stories most students of law are asked to read are those found in judicial opinions. During the course of a legal education you are asked to read hundreds of these case stories. This growing familiarity with judicial opinions can be contrasted to the cultural, political, and personal narratives in which these cases are embedded, narratives which you are not asked to explore. If lawyer stories, novels, and films are made part of your legal education, they are viewed as peripheral, as a diversion from more serious, substantive endeavors. The assumed centrality of legal cases and the marginality of lawyer stories needs reexamination. Would we actually set a young lawyer upon the wrong path by requiring some exposure to the literary representation of lawyers? Would a "literature" course, or a "humanities" course in each of the the three years of law school undermine the best of what law schools now offer? Have we not, as Robert Pirsig suggest in Zen and the Art of Motorcycle Maintenance, been "conned . . . into thinking that the real action was metropolitan" while the back roads take you only to "boring hinterland." [Robert Pirsig, Zen and the Art of Motorcycle Maintenance: An Inquiry Into Values 13 (New York: William Morrow & Company, 1974) (a text as instructive for law students today as for a generation of readers in the 1970s)]
With a constant diet of law case reading we begin to think we have taken up residence in the metropolitan heart of a fine city far from the hinterlands inhabited prior to the study of law. Reading lawyer stories along with cases takes you along the backroads of legal education and offers a somewhat different view of the world. There is a sense in which reading lawyer stories is like reading law cases: a case is read, another case involving a different configuration of facts, and then another and another. A case can be read as an autonomous, stand-alone text (e.g., it might be read in this manner by a litigant), but this is not what you are asked to do as a student; it is not the way lawyers and judges read cases. A case cites other cases, the judge relies upon existing cases to create the case opinion to resolve the dispute before her. The meaning of the case, the new case and the old cases, is always read in light of cases that proceeded it. (Cases can, of course, also be read with an eye to cases that might follow it.) Law students learn to read cases, looking backward, looking forward. Reading lawyer stories follows a similar path. I suspect, however, that reading law cases, given the present state of legal education, will not have materially advanced either your willingness to read lawyer stories or your ability to know what to do with them once you have read them. Indeed, law school may have seriously impeded your ability to read lawyer stories. Reading for facts, issues, and case holdings (and the evolution and application of legal doctrine) may help you pass law school examinations, or talk knowledgeably about some field of law but this limited instrumental reading--to find a rule of law, or an exception to a rule of law--an, if some caution is not exercised, lead to reductive, mechanical, formulaic approaches to reading (or reinforce old habits of this sort developed before you entered law school). Some students find that law school requires an ability to "read" broadly, critically, and imaginatively, while others see in legal education a demand that they engage in the most narrow possible form of reading. For some, a constant diet of case reading makes it difficult to read anything other than law cases. Our readings in “Lawyers and Literature” began with some short stories that deal, in some fashion, with law school and legal education: Kafka, "Before the Law," “Centaurs” (J.S. Marcus), “The Real World School of Law” (Jeremy Gilman); “Spring” (Lowell B. Komie), "The Interview" (Lowell B. Komie). Looking back, now, on your law school experience (even before it becomes a matter relegated to personal history), what can you say about it? How is it to be described? How will you account for these years? What configuration of incidents and encounters, successes and failures, fears and dreams will you draw upon in the years ahead to tell the story of how you came to and survived law school? Think back for a moment to those earliest days of law school. What happened as you tried to learn to read law cases? Did you know what to do with the cases you were assigned to read? If not, how did you manage the reading (that is, do what you were being asked to do)? Or, conversely, if you did know what to do, what was the basis for that knowledge? I assume that some of you had difficulty reading law cases, and that others of you, did not. The assumption pivots, of course, on what we mean by difficulty. The difficulty you may or may not have experienced is relative to other difficulties you’ve experienced, other contexts in which difficulties can be expected, and the various strategies you’ve devised to deal with these situations and yourself as you encounter something that is difficult. I notice that you haven’t assigned any John Grisham or Scott Turow books. Why not? Like a good many other Americans, I read John Grisham and Scott Turow. I went so far as once to write a law review article about Rudy Baylor, the law student who goes on to become a lawyer in John Grisham’s The Rainmaker. (I was interested primarily in Rudy Baylor’s musings about legal education.)(And, I’ve used the film adaption of Grisham’s The Client in my “lawyers and film” class.) But like most literary-minded readers, I don’t find much in the way of lasting significance in Grisham’s novels. I actually assigned Grisham’s novel, A Time to Kill, one year and was disturbed to learn that more than a few students found it the best book they’d been assigned to read in the course. Grisham writes a perfectly good “legal thriller” and I can imagine a teacher asking you to read a “legal thriller” and try to speculate as to how this kind of novel has become so popular as a genre, and more importantly, how a public that devotes such novels might have an effect on the practice of law. But I must say, that I find Grisham’s characters either flat or unappealing. Grisham’s speciality is moving his plot along; his characters serve the plot. As it happens, I’m more interested in character than I am plot. Grisham doesn’t purport to give us characters that stay with us, characters we want to think about, or characters that might promote better thinking about our own lives. Basically, I don’t see much in most of Grisham’s novels to prompt much reflection. Scott Turow is a far better writer than John Grisham. His prose is sound and his novels have more depth. And in his recent novels, Turow is beginning to craft novels of interest to literary-minded readers. I’m thinking here, in particular, of Personal Injuries which turns out to be an extremely interesting novel. But then, we’ve known, from the appearance of Turow’s One L (the book about Turow’s first year at Harvard Law School) that he was a good writer; we now know he’s becoming a good novelist. As for John Grisham, we know he has made a pot-full of money as a writer, and since his wealth is made on the flourishing of the “legal thriller” genre, Grisham’s money may be of interest to us. It’s an open question as to whether Grisham will ever be considered a good novelist or will remain a writer who found a way to mint money. [I might note, by way of a footnote, that John Grisham, according to sales, ranked as the top-selling author of the decade (1990-1999). The number of Grisham books sold during the decade: 60,742,299. Yes, that's right; over 60 million. Grisham had five novels on the top ten best seller list of the decade. CNN.com book news] Do you need to be literature major to take the course? No, not at all. I was not a literature major in college. After the required freshman literature course (of which I remember virtually nothing except that we were assigned a Henry James novel, an assignment I found then, and now, most peculiar), I never took another literature course. As the years progress, there is a real possibility that the only literature courses I’ll be taking are those I teach! So, I can confess that I have not formally studied literature and while I have received instruction from afar from a number of teachers (James Boyd White and Thomas Shaffer are the most notable law teachers among my teachers; Wayne Booth and Robert Scholes have been of help along the way), I am basically self-taught. I’ve learned to read stories by reading stories (and by trying to figure out what I’m going to do with the stories I read). One way to think about what you do when you study literature is that you learn to read and appreciate stories, different kinds of stories, stories written in different kinds of ways, stories that take you different places, stories that make different kinds of demands on you. As for what goes on in an English course in the university, I’d be hard pressed to say. Exactly what it means to study literature as a college student, you’d need to ask those who have taken that route. This was not my path to literature. Is there a theme of any kind that you can identify in the stories and novels you have asked us to read? Yes, I think there is, but when it’s all said and done—whenever that might be—you’ll be in the better position to answer the question than I. But I can give your question a tentative answer. Put most abstractly, the stories and novels you’re asked to read in Lawyers and Literature suggest that as lawyers we may be in more danger than we’d like to think. We may find that some of our thinking about ourselves and about the law is, frankly, delusional (and yes, some of our delusions are of the healthy sort). The danger for the lawyer is that we’re heading in a direction we don’t know we’re going, with the likelihood that we’ll get there faster than anyone might imagine. Can you decode what you just said? Maybe. We’re going to take up stories, in a good number of which, oddness prevails. Sometimes we need to see the odd and the perverse so we can get straight in our thinking about the ordinary. We’re going to take up stories in which life doesn’t turn out quite the way the protagonist in the story thought it would. So, we’ll try to explore this tendency of fictional lawyers to get astray. Going astray, finding that your life is a mess, turns out to be a theme in many of these stories. The question, one might ask at this point is, what do these fictional lawyers and their problem have to do with the life I’m trying to live, the life I imagine I’ll live. I’m reminded here of Walker Percy’s admonition: “If it is true that the poet and novelist are in the vanguard in their foreboding that something has gone badly wrong and in their sketching out of the nature of the pathology, let the reader both rejoice and beware, rejoice that the good novelist has the skill to point out the specters which he, the reader, had been only dimly aware of, but beware in doing so of surrendering the slightest sovereignty over himself. If one happens to be a writer or a scientist and lucky enough occasionally to hit on the truth, or if one is a reader or a consumer and lucky enough to benefit from a great medical discovery or a novelistic breakthrough which excites him—well and good. Well and good, that is, as long as one never forgets that the living of one’s life is not to be found in books, either the reading of them or the writing of them.” [“The State of the Novel: Dying Art or New Science?” in Walker Percy, Signposts in a Strange Land 139-152, at152 (New York: Farrar, Straus and Giroux, 1991)(Patrick Samway ed.)] Can you tell me, without trying to get too fancy, exactly what your purpose is in this course? Sure, I can give it to you in one word—reflection. What do you mean by reflection? In years past, I might have told you that what I’m after in a course like this is to get you to think. But then, that’s what my colleagues tell you, they are just trying to get you to do—think. Of course, my colleagues are most likely to tell you that they are trying to teach you to think like a lawyer. Whether learning to think and learning to think like a lawyer are to be seen as one and the same enterprise is a question you might want to think about. Since I’d like to avoid confusion, in what I ask you to do and what my colleagues have in mind having you do, when you learn to “think like a lawyer,” I’ve decided, without trying to be unduly quarrelsome, that I must be after something different. I’m not just asking you to think, but to reflect. I’d like to have your reading in Lawyers and Literature promote something I know you’re already capable of doing, and to help you sharpen your skills in doing it. If reflection is one of the main goals of the course, then what I’m asking you to do is to make yourself the subject of study, and to use the “fiction” you read in the course to help you do that. The lawyer you’re going to be is composed of two basic ingredients, you and the law. We go to great lengths in law school to focus on the law. We don’t pay nearly so much attention to you. In fact, we’re sometimes strident in suggesting that what you think about the law is a distraction and a nuisance and just gets in the way of your learning the law (by which we try to suggest to you that the law is THERE, the law is GIVEN, and that the law in its THERE-ness and its GIVEN-ness is the giant and you, my student friend, are the dwarf). In law school, law is the subject; you are a student of law. I’d like, with Lawyers and Literature (and other courses) to rewrite the script, to challenge (and invite you to challenge) this seemingly fundamental, unyielding aspect of legal education. That challenge entails you’re ability to see that you, as well as law, is the subject of study. You did manage to get a bit fancy in those last remarks. Can you summarize what you mean by reflection? If you look at the term “reflection” in Webster’s Seventh New Collegiate you’ll find a number of meanings for the term that might be of interest. Reflection means: a thought, idea, or opinion formed by reflecting (esp. an image given back by a reflecting surface); a thought, idea, or opinion formed or a remark made as a result of meditation; consideration of some subject matter, idea, or purpose; the action of bending or folding back. Reflection comes from reflectere—to bend back. The archaic meaning of reflection is to turn into or away from a course. Thus, to reflect is to turn, throw, or bend off or backward at an angle. It also means to make manifest or apparent—that is, to show. Lawyers often think of ourselves as doers rather than thinkers. What I propose, as the purpose of a lawyers and literature course, is that we hold or suspend the sense of ourselves as doers and see ourselves as thinkers. More accurately, what I want you to become is reflective doers. Doers act by way of reflex, by habitual and predictable ways of going about their work. Reflective doers look into their doing. They are introspective. In the stories and novels I ask you to read, we read to be more reflective about the lives we live and the work we do as lawyers. Surely you have more precise goals in the course than to simply promote reflection? Yes, you're probably right about that, although I settle for improved skills in reflection. If you want the most precise answer I can devise, I'd say that expect to:
I read, some years ago, a statement in a New York Times book review that intrigued me. The statement was a rather simple one: "Books lead outside . . . ." [Le Anne Schreiber, "Home Alone,” New York Times Book Review, October 2, 1994, p. 14 (reviewing Doris Grumbach, Fifty Days of Solitude (1994)]. The statement would require some decoding before it would make much sense. My response to the statement goes like this: The stories I continue to read, the stories I prescribe for you to read in "Lawyers and Literature, are those that lead inside, through the self's graveyard, and all that got buried there along the way. (You might call it, as did Jung, the shadow; you might call it something else). The stories I find most daunting, the most instructive, lead back to conflicts unacknowledged, back to the reader/learner, back to all that has been forgotten. Jerome Bruner, a respected elder in the world of psychology, argues that we should "constantly be inquiring about the interaction between the powers of individual minds and the means by which the culture aids or thwarts their realization." Bruner contends this inquiry "will inevitably involve us in a never-ending assessment of the fit between what any particular culture deems essential for a good, or useful, or worthwhile way of life, and how individuals adapt to these demands as they impinge on their lives." [Jerome Bruner, The Culture of Education 13 (1996)]. The legal profession is a distinct culture which aids and thwarts the realization of individual minds and lives. "Lawyers and Literature" examines, from a literary perspective, how a lawyer's life is enriched and diminished by the very culture that it possible. Since you’ve been talking about having us make ourselves the subject of study here, what would you like to ask me, as your student in this course? I suppose my first question would be: What brings you here? You could be off in a different room of this building studying real law and yet you are here, in "Lawyers and Literature." There must be a story of some sort that bring you to a course like this. I’d like to hear that story; I'd like for it to be a part of the course. What will you ask us to do in this course? Basically, you’re simply going to read stories. And I know you’re going to want to know what stories. But then, that’s the kind of question that gets answered on a course syllabus. The list of the things you’ll be asked to read will have far more meaning to you at the end of the course than it does now. Now, it is simply a list of stories, authors, novels. There’s no reason for that list to have any real meaning for you, at least as you begin the course. What I'd most like for you to do is to look at each story|novel (and each time the class meets) as an exercise in imagination. Unless we are careful, and imaginative, we’ll let each new text, each new assignment be a burden, still another student task to be done. What you are asked to read in this course requires a different mind-set. Is there a single story or novel that you can point to that is most relevant to the course? No, I think not. Your question is a good deal like that posed to an author asked to comment on the favorite book, either he’s written or read. That kind of singling out is awfully hard to do. I might point out, as William Kittredge, a literature professor at Amherst does, that: “There is no single, simple story that will define paradise for us and there never will be.” [William Kittredge, “Doing Good Work Together,” in Kurt Brown (ed.), The True Subject: Writers on Life and Craft 52-58, at 57 (Saint Paul: Graywolf Press, 1993)] In Lawyers and Literature, I ask you to read a story and ask what the story asks of you as a reader. What demands does the story make on us? Who would the story have you be (what kind of person? with what kind of sensibilities? how different from the person you know yourself to be now?) What kind of reader are you being asked, by this story, to be? What resources do you have to be the kind of reader, or the kind of person, the story demands of you? James Boyd White, a law and humanities scholar, puts it this way: “I would say of any literary text that it defines an ideal reader whom it asks its audience to become at least and in some sense forever. In this view, the reading of a text is guided by two central questions: first, what possibilities for perception and response, for judgment and feeling, does this text seek to realize in me? Second, what do I think of such a project? In other words, as the reader works through a text he is always asking who the “ideal reader” of this text is, and deciding whether he wishes to become such a one, even for a moment.” [James Boyd White, Law as Language: Reading Law and Reading Literature, 60 Tex. L. Rev. 415, 429-430 (1982)] Taking up the questions posed by White, with regard to a particular story (or text) raises questions about what a reader might call “goals.” What is the goal of this way of reading? Is it a way I know how to read? Or even want to try to learn how to read? Reading, taken up as the most instrumental of activities, can turn, quickly and dramatically, into a more complex, beguiling enterprise. For a reader bent on interpretation and meaning, there are various pitfalls and traps that can befall us. I don’t want to overdo my need for summaries, but could you summarize what you’re saying here? Of course, I can try. When we read stories about and by lawyers we must learn to talk about ourselves as lawyers, but also as readers. The course of reading we are about to undertake invites you articulate your involvement and judgment about the texts you are given. How you read (and misread) the texts of lawyering culture are of crucial important for your involvement of the life in that culture. How does one goes about reading a story? You might think about this question as posing a problem of strategy. In “Lawyers and Literature” I ask you to read a story and ask what the story (and its implied author) asks of the reader. What demands does the story make on us? Who would the story have you be (what kind of person? with what kind of sensibilities? how different from the person you know yourself to be now?) What kind of reader are you being asked to be? What resources do you have to be the kind of reader (or the kind of person) the story demands of you? James Boyd White, one of our great law and humanities scholars puts it this way:
Taking up these questions with regard to a particular story (or text) raises questions about what a reader might call “goals.” What is the goal of this way of reading? Is it a way I know how to read? Or even want to try to learn how to read? Reading, taken up as the most instrumental of activities, can turn, quickly and dramatically, into a more complex, beguiling enterprise. For a reader bent on interpretation and meaning, there are various pitfalls and traps that can befall us. When we read stories about and by lawyers we must learn to talk about ourselves as lawyers, but also as readers. The course of reading we are about to undertake invites you articulate your involvement and judgment about the texts you are given. How you read (and misread) the texts of lawyering culture are of crucial important fo your involvement of the life in that culture. I'm curious about your use of the word strategy in your comments about what you will have us do as readers. Can you comment on this idea that we have strategies as a reader? There is a section of the course website devote to "strategies for reading" and I'll not try to repeat all that here. I should note that I agree with Peter Rabinowitz observation that “a reader can only make sense of a text in the same way he or she makes sense of anything else in the world: by applying a series of strategies to simplify it--by highlighting, by making symbolic, and by otherwise patterning it.” [Peter J. Rabinowitz, Before Reading: Narrative Conventions and the Politics of Interpretation 19 (Ithaca: Cornell University Press, 1987)] When we travel we learn to keep our bearings and avoid, so much as we can, getting lost. One way we do this is with the use of maps. Another way is to simply wander about, observe prominent features of the landscape, and construct in our mind, a mental map. The most frequently used maps are of this mental or tacit kind. In reading law and reading literature, we make use of maps. We have maps we already own and we are, from time to time, given new map. For example, in reading law, you are given a map--the case brief--and you are instructed to make use of this map when you read judicial opinions. You know where you are going as student of law, even though you may never have read a judicial opinion, by using the facts, issue, conclusion, analysis grid-lines of the case brief map you have been provided. To return to my travel metaphor, I'd like for you to be travelers rather than tourists. Travelers have a need for maps and take maps seriously. A tourist does have much need for a map; just follow the tour guide. I'll leave with you with an astute Robinson Davies observation: “In reading, as in all arts, it is the means, and not the end, which gives delight and brings the true reward. We laugh at tourists who dash through the Uffizi, to say that they have “done” it: we know that if they have any serious feeling for pictures, fifteen minutes with one masterpiece would far outweigh the pleasure of such dashes.” [Robertson Davies, A Voice From the Attic: Essays on the Art of Reading 9-10 (New York: Penguin Books, rev. ed., 1990)] I’m reminded of Parker Palmer’s observation that: “Good teachers know that discomfort and pain are often signs that truth is struggling to be born among us.” [Parker J. Palmer, To Know as We Are Known: A Spirituality of Education 73 (New York: Harper & Row, 1983)] Part of what I want to do as your teacher is to be aware that reading, of the kind I propose, and in the way I propose you read, can be discomforting. I’d like to think I know something about the discomfort and can help you respond to it, and live with it. I’m hopeful that Goethe got it right, in his observation that: “In darkness we can, by an effort of imagination, call up the brightest images . . .” [quoted in Christopher Cessac, Republic Sublime (Lincoln, Nebraska: Zoo Press, 2003)] I want to explore this darkness in which we find the bright images. In doing this, it’s sometimes of help to have a teacher. It was Wallace Stevens, the acclaimed poet, who spent his life as a lawyer, who said: “[M]y interest is to try to get as close to the ordinary, the common-place and the ugly as it is possible for a poet to get. It is not a question of grim reality but of plain reality. The object is of course to purge oneself of anything false.” [Wallace Stevens, letter to Bernard Heringman, dated May 3, 1949, in Holly Stevens (ed.), Letters of Wallace Stevens 635-637, at 636 (Berkeley: University of California Press, 1996)(1966)] The purpose of having a teacher is to help you establish the conditions by which you can purge yourself “of anything false.” If you find that the stories you’re asked to read in this course are darker than you would have preferred, you may find that you want to distance yourself from the stories. But in doing so, keep in mind, Parker Palmer’s observation that: “The knowing self is full of darkness, distortion, and error; it does not want to be exposed and challenged to change. It seeks objectified knowledge in order to know without being known.” [Parker J. Palmer, To Know as We Are Known 121 (New York: Harper & Row, 1983)] The still more basic problem, and one that the stories in this course do more than hint at, is that: “A man can try to act out a story that, for him, is false, inappropriate, destructive. Commonly, in fact, people try to be what they cannot be, pretend to be other than they are, overlook their own best strengths in imitation of someone else’s story.” [Michael Novak, Ascent of the Mountain, Flight of the Dove: An Invitation to Religious Studies 60 (New York: Harper & Row, rev. ed., 1978)] There are many ways of being unconscious, blind, forgetful, or so literature would suggest. The claims to unconscious states of living are legend in literature, as we are reminded by Ivan Ilych in The Death of Ivan Ilych, Jean-Baptiste Clamence in Camus’s The Fall, and Will Barrett in Percy’s The Second Coming. The question then, is how does one go about becoming more fully conscious? Where does one start? One way that you might think about the Ivan Ilych, Jean-Baptiste Clamence, and Will Barrett stories is that they are about meaning—how we give life meaning and how the making of meaning turns out to be less than a sure thing. But it is difficult to talk about meaning and how meaning works, that is, talk about it directly. So, most often, we don’t take about meaning at all. We poke and prod the edges of the story. I read, some years ago, a statement in a New York Times book review that intrigued me. The statement was a rather simple one: "Books lead outside . . . ." [Le Anne Schreiber, Home Alone,” New York Times Book Review, October 2, 1994, p. 14 (reviewing Doris Grumbach, Fifty Days of Solitude (1994)]. The statement would requires decoding before it makes much sense. My response to the statement goes like this: The stories I continue to read, the stories I prescribe for you to read in "Lawyers and Literature," are those that lead inside, through the cluttered path of the self and all that we've set aside and buried along the way. (If what we've moved away from to get to where we are is still stored in some part of the psyche, as C.G. Jung claimed--he called it the shadow--then you might find the literature that takes you inward is a means of getting access to this shadow self.) The stories I find most daunting, the most instructive, lead back to conflicts unacknowledged, back to the reader/learner, back to all that has been forgotten. What kind of assumptions do you, as our teacher, bring with you to the course? "Lawyers and Literature" is a course of reading that requires you be a real reader, a reader rather than a consumer of information. To be an ideal reader (of lawyer stories), you need to take on a story, read it, and then can see how/why the story might be put to use (or to articulate, as best you can, why or how a particular story is of no use to you). We talk about readers in various ways: discriminating reader, sophisticated reader, critical reader. One way you might think about "Lawyers and Literature" is that it’s a course of reading, a course for readers, a course for those who aspire among the various things they want in life to be a reader. One way to be a reader is to constantly to assess yourself as a reader, and the kind of reading you're doing: What am I reading? How am I reading it? What kind of reader would this story have me be? "Lawyers and Literature" is a course of reading in which you're exposed to good readers and bad readers, a course in which the difference between the good and the bad is at times painfully obvious, at times subtle and elusive. You may, at times, feel yourself above the fray—the good and the bad of reading don’t seem to involve you—but there are other times (particularly when you begin to write about the stories, and about the course) that you come to realize that you are as fully implicated in the good and bad of reading as anyone else in the course. I know you want to think well of yourself as a reader, that you assume that you are more than adequate as reader, of both law and fictional texts. But what kind of good reader are you? I want you to see that there is, for you, as for me, something vital/important/significant at stake in what we read and how we read it, how we talk and write about what we read. There will, undoubtedly be times when we lose our way, wander around in the bramble of banality, and do best by simply trying to get through an evening's discussion without harm. But if this necessity, this idea of just getting by, just passing through, becomes the dominant tone and theme of our engagement, of our conversations, and our reading, then we’ll have squandered a real opportunity. We will, most simply put, have failed the stories we read, failed ourselves, and failed the course. Mark Edmundson, in his book, Why Read? talks about confronting the “standard prevailing opinions” we have about ourselves as readers, and that’s exactly what we need to do. [91]. Edmundson drawing on Emerson observes that: “Whatever gains we make in our knowledge of the self and the world, however liberating and energizing our advances may be, they will eventually become standardized and dull. What once was the key to life will become deadening ritual, common practice . . . . “ [29-30]. “Emerson understands education as a process of enlargement, in which we move from the center of our being, off into progressively more expansive ways of life.” [30] As readers we need the kind of education that helps us embrace the knowledge of our own ignorance, an education that helps us confront what we most fear—that we do not know nearly so much as we think we do. Edmundson turns to Wittgenstein for the notion that we come to philosophy (as we may literature) and “to serious thinking” about our lives “out of confusion.” [33]. Literary study “often begins with a sense of dislocation; it begins with a sense that one has lost one’s way.” [33]. Edmundson goes on to say: “The best beginning reader is often the one with the wherewithal to admit that, living in the midst of what appears to be a confident, energetic culture, he among all the rest is lost.” [33] [One sees something of this sort in Will Barrett, in Walker Percy's The Second Coming.] Edmundson argues that: “Beneath acculturation to cool, beneath the commitment to training and skills, there often exists this sense of confusion.” [34]. We turn to literature to get at, into, around, beyond our confusion. Literature may help us live with the confusion we can resolve or eradicate. A reader needs the courage, the willingness, the ability, Edmundson says, to “tell himself who he is and has been, and, possibly, why that will no longer quite do. This exercise in self-reflection, deriving often from the sense of displacement, of having lost one’s way, can start a literary education.” [33]. “We [teachers and students] need to provide a scene where not-knowing is, at least at the outset, valued more than full, worldly confidence.” [35]. As it turns out—paradoxically—not knowing can be a resource. [See the interesting discussion of "stuckness" in Robert Pirsig, Zen and the Art of Motorcycle Maintenance (1974)] “I often ask [students] to find themselves,” says Edmundson, “or to discover what is unknown in themselves, among the great characters in literature as well as within the imaginations that bring those characters to life.” [63]. A literary education is not, according to Edmundson, theraputic per se, but he leaves the door open and admits that it may well have theraputic effects. [82-83]. Edmundson goes on to note that reading literature is “not an exercise in cheering yourself up.”[83] Edmundson contends that: “The person who stands on the edge, between regression and progress, past and future, is the one who has made herself ripe for literary education.” [83]. Edmundson argues that, “We’re most alive when we’re moving from one set of engagements to the next. We’re in motion then, but not fully sure where we’re going, feeling both our present ignorance and the prospect of new, vitalizing knowledge.” [35] What’s your wildest dream for what we’ll do in this course? I’d like to think that the stories and novels we read might help us take a new, round about way, of thinking about what it means to be a lawyer. But then, I suppose that doesn’t sound very wild. How about this? I’d like for these stories to help us transform murkiness into insight, to temporarily rid ourselves of the clutter of conventional thinking, and to see what the world (and we in it) looks like from the perspective of these stories. Admittedly, this may not look so much like a “wild dream,” more like an ordinary goal. I confess that your question caught me by surprise. Maybe I should be asking about your wildest dream for the course but what you'll be doing, doing like in the way of teacher work? The prologue for a response to this question still has me doing a "wildest dream" reverie. In hopeful, some will say inflated moments, I imagine myself as Hermes, the winged-footed Greek God of connections (a god of boundaries and liminal spaces, of crossroads, of lost and found, the trickster), bringing students to see themselves as serious readers, of serious texts, as readers and writers of texts they write, stamped with their the seal of their own voice. I stand forewarned: “Good teachers know that discomfort and pain are often signs that truth is struggling to be born among us.” [Parker J. Palmer, To Know as We Are Known 73 (New York: Harper & Row, 1983)]. Palmer notes that: “A learning space needs to be hospitable not to make learning painless but to make the painful things possible, things without which no learning can occur—things like exposing ignorance, testing tentative hypotheses, challenging false or partial information, and mutual criticism of thought.” [Id. at 74] You might think of what we do together as a conversation: “Indeed a conversation is a dramatic work, even if a very short one, in which the participants are not only the actors, but also the joint authors, working out in agreement or disagreement the mode of their production. For it is not just that conversations belong to genres in just the way that plays and novels do; but they have beginnings, middles and endings just as do literary works. They embody reversals and recognitions; they move towards and away from climaxes. There may within a longer conversation be digressions and subplots, indeed digressions within digressions and subplots within subplots.” [Alasdair MacIntyre, After Virtue 196 (Notre Dame: University of Notre Dame Press, 1981)] “[W]e must meet and talk together, appreciating our respective histories and experiences of alienation and oppression. We must talk specifically about the kind of community we would fashion and how the rules, laws, and rituals defining the roles we adopt can be mutually empowering and facilitative of a community of equals. We must talk specifically about how we should organize, protest, agitate, and struggle to achieve our objectives, realizing that we are perennially engaged in a dialectic in which the program shapes our practices, which in turn refine and redefine our program.” [Anthony E. Cook, Beyond Critical Legal Studies: The Reconstructive Theology of Dr. Martin Luther King, Jr., 103 Harv. L. Rev. 985, 1044 (1990)(“It is often said that the hottest places in Hell are reserved for those who in times of moral crisis remain neutral.” [Id. at 1044] Some of us have more trouble talking in class about what we read. Do you see that as a problem? "Lawyers and Literature" is a course about "ways of reading"; it is also a course about "ways of talking" about a story. There is something peculiar in a small seminar size class when 2 or 3 students provide all the commentary and others sit by in silence. At times, I've been willing to live with the silence, trying to carry on a conversation/dialogue with those willing to participate and letting those who have nothing to say (or who are unwilling to say what they most want to say) go their own way. I'm not sure I want to willing continue this practice. In every class, you should be prepared to say something about the stories you're been asked to read. I expect participation in the class discussion, from each of you, at every class meeting. Maybe it would help if you tried to rethink what it means to be a course like "Lawyers and Literature," rethink what is that I'm trying to do as a teacher. "I will . . . try to tell you how I look at . . . [an] aspect of life. And then maybe you will listen. And then we will talk and probably disagree. Because you are you, your experience will have been different from mine. Your experience tells you, perhaps, that all men seek images of their mothers when they choose their wives; mine tells me this is far from being always so. So we will go on talking. Not ‘objectively' or ‘subjectively,' just talking. I will try to speak clearly and well so you will see what I see, if only for as long as I am speaking. Maybe I will change your mind some, maybe not, and maybe discussion will seem fruitless. But life is like that. It is people trying to say what they most want to say, discovering that proving objectively some arguable proposition is very easy when compared to struggling to say exactly what they believe is true." [Roger Sale, On Writing 51 (New York: Random House, 1970)] Some of my friends in law school argue that a course like “lawyers and literature” is nothing more than a joke. They don’t want a course like this shown on their law school transcripts. What would you say to these people? Probably not much. Your friends don’t come knocking on my door. And the reason they don’t is they assume I have nothing to say that they might want to hear. There are, we might conclude, two camps of law students. Those who have an interest in or see a need for a course like Lawyers and Literature and those who don’t. This business of dividing up the world into opposing camps is not so unfamiliar as you might want to think. Even law teachers can do this sort of thing: law is placed in one intellectual camp, those who are interested in literature are placed another camp. John Ayer, a law teacher, has observed that law and literature have traditionally been viewed as “two separate realms of being, companion duchies in the sovereign universe of thought.” [John D. Ayer, The Very Idea of “Law and Literature” (Book Review), 85 Mich. L. Rev. 895 (1987)] If you divide the world into camps in this way, then anyone who takes up a course of reading based on fiction (short stories and novels), and claims they are doing it to further his education as a lawyer, is going to seem odd to anyone who belongs to the law for lawyers and literature for someone else, way of thinking. One reason that your friends find literature so amusing is that it doesn’t purport to provide answers to questions in the way that law does (or science or religion does). Indeed, it seems safe to say that stories are not answers. Stories may, if we can learn to live with more uncertainty, expose stock answers provided by established conventions of the lawyer’s professional role. Your friends may be more interested (more vested) in living within (and profiting from) the established conventions of law and lawyering than you are. Another way to think about your friends trying to have a laugh at your expense is that someone travel the expressways, some of us, think we might still have something learn by way of the back roads. Consider Robert Pirsig’s astounding narrative in Zen and the Art of Motorcycle Maintenance (New York: William Morrow, 1974), an account of travels (literal and philosophical) that begin with the observation that there are differences (metaphorical and literal) between motorcyclists who travel the back roads and those who have yet to discover them. Pirsig’s claim for the back roads, initially, is quite modest. “I’m happy,” he says, “to be riding back into this country. It is a kind of nowhere, famous for nothing at all and has an appeal because of just that.” [Id. at 11]. But there is a more telling argument to be made for travel on the back roads. Pirsig says, “[t]ensions disappear along old roads like this” and he goes on to find that:
Using Pirsig’s discovery, we may say that Lawyers and Literature is an attempt at education by way of the back roads. With literature (of the kind I’d prescribe for you), we find ourselves off the main roads, traveling the back roads of the lives we hope to live. Literature permits us to glimpse the not easy to see. We are, as we live, like fish in water. We are unconscious of the water, and at times, lose consciousness of the fact that we are swimming! The ordinary stuff of everyday, prosaic life—banal, immediate, demanding, compromising—makes it possible to forget and to become blind to the larger (and larger) contexts in which any (and every) life is lived. Another way to think of Lawyers and Literature as education by way of the back roads is to see that in stories you read here, that y looking for what got left out of your education as a lawyer, a traditional lawyer, with a traditional education. What stories help you do, as a back roads education, is to look for everything and anything that might help us figure out what it means to live as a lawyer. A lawyer practices law, by which we might mean little more than we mean that the plumber works with the plumbing. It’s a job. And yet, by most accounts, law turns out to be more–it is this something more about law that may have brought you to law school, the something more that keeps you here, and the something more that keeps you alive. You sometimes talk about lawyers and their focus on answers, how it becomes a mindset that results in a suspicion of questions. Do you really think this is a problem? Obviously, when the client comes to the lawyer, he’s most likely looking for answers. What the lawyer must do is find a place for his questions. But it’s not just lawyers we’re talking about here. Jacob Needleman, a philosopher, notes that, “[o]ur culture has generally tended to solve its problems without experiencing its questions. That is our genius as a civilization, but it is also our pathology.” [Jacob Needleman, The Heart of Philosophy 7 (New York: Alfred A. Knopf, 1982)]. It’s in your relation to questions, and the relations you make (and avoid making) with teachers who question you, that you shape your character as a student, and as a lawyer. Obviously, I think that we’d be better students and better teachers if we honored questions more, prized answers less. One source of new questions, when the old ones have dried and shriveled up, or gone sour on us, is to avail ourselves of stories, new stories read in old ways, old stories read in new ways. A good story is more likely to pose a question than deliver an answer. I’m curious about your own experience of law school. Was it a bad time for you? It wasn’t at all a bad time. I’ve written a good deal, quite critical of legal education, but I’ve never suggested that my own law school experience was a negative one. There is much to be appreciated and prized in what law school teaches; I’d personally would feel great loss and sadness to have to give up what I’ve learned from being a student of law. But when I pay close attention, when I listen to you talk about your rites of passage as a student, I begin to observe mental habits and ways of thinking that I find problematic. I might tell a little fable to illustrate my thinking about legal education. I must go to the well for the water I use everyday. The vessel I use to carry water has developed a hole. But the distance from the well to the house is short, I’m distracted by all manner of things and there’s little reason to pay attention to a small leak in a big bucket. One day the well near the house dries up and I go a far piece to the stream for water. But at the house, I find after walking a long way that the bucket is near empty. I try again with similar results. There is, one might conclude, a problem. What in the world are you trying to imply, in this little off-beat fable, about legal education? I’m not sure. Sometimes, you find yourself in a particular situation, and a little story like this (or a much bigger one, or bolder one, or crazier one) comes to you, and you don’t quite know what to make of it. Here’s the situation. Here’s the story that got dropped on your doorstep. Sometimes, trying to figure out the relationship of the situation to the story can be perplexing. (You may well end up saying, this story doesn’t make much sense, or the sense it makes doesn’t fit, doesn’t tell me anything about the situation I’m in. Sometimes stories play tricks on us.) Do you have any more off-beat stories for us? Let me tell you a true story, a story about a scientist and a revealing deception. Stanley Milgram was a psychologist, a scientist if you will. He conducted an experiment, an infamous experiment, in social psychology to question our purported independence of judgment, especially the judgment we exercise in the face of authority. Milgram wrote a book about the experiment; it’s titled Obedience to Authority (1974). What Stanley Milgram did is brought unsuspecting persons into a room where they were introduced to a scientist/experimenter. The subject was told that a series of questions would be asked of another individual in an adjoining room and that he, the subject, would be able to observe the questioning. When the person being questioned provided a response to a question that was false, the subject was instructed to “punish” the individual by administering what the subject falsely believed was a shock. During the course of the experiment the subject was instructed to shock the individual with increased amounts of voltage. Milgram found that an alarming number of subjects would deliver what they believed to be fatal shocks simply because they were instructed to do so by an someone in “authority,” by the scientist conducting the experiment. At minimum, Milgram’s subjects had to suspend routine, everyday thinking, so as to carry out the request of the authority figure. The experiment seems to suggest that changes in thinking, or suspension of old forms of thinking, are highly influenced by context (the social and cultural “field”) in which it occurs. The most obvious factor in this particular “experimental context” was the presence of an authoritative figure—the experimenter—who issues directions and orders to administer the lethal shock. Are you suggesting that, in terms of the Milgram experiment, that law teachers are the experimenters and that law students are the unwitting subjects? I make no claim for a perfect analogy between scientist experimenters who give orders to administer lethal shock and law teachers who help the student suspend concepts of everyday thinking (as they do, for example, when they ask you to put aside your old sense of justice, and when they ask you to study law without, at the same time, studying yourself) and to accept the ethos and the ethic of lawyering. Yet, students buy into the idea of legal thinking quite willingly. And where does the Milgram experiment fit with our study of lawyer fiction in Lawyers and Literature? I’ll pass, on this one, and let you decide if there’s a connection or we’ve simply gotten off track. You don’t seem to mind all that much if you and your students get off track. You might be interested to know that some students think you’re a bit odd. Do you ever worry about that? I suspect I can be as single-minded as any of my colleagues. But that’s not really the point, you seem to be making. As valuable as objective, straight-forward, problem-solving ways of thinking (and teaching) might be, they may not be enough. Some problems require more than rational assessment (weighing and balancing). There are times when the head gets divorced from the heart and the decision-maker gets us into trouble. Lawyers need intuition and imagination, as much as they need objectivity and good problem-solving skills. (We might remember here, that C.G. Jung found intuition, along with intellect, feeling, and sensation to be one of four cornerstones of personality.) Many professionals find they are far more comfortable with matters of intellect than with feeling or intuition. If intuition and imagination are valuable to lawyers, then they too must be educated and nourished, studied and argued. Part of this business of being considered odd may simply come from my unwillingness to abandon intuition. We might think of law work as being of kinds, each kind having a different nature. There is a kind of law work that has you travel the low road (along well-trod paths). And there is law work that has takes you on still a different road, to what Robert Pirsig, in Zen and the Art of Motorcycle Maintenance, calls the “high country of the mind.” The thing I like about literature is that it has is traveling both roads, one road, we are simply getting the job doing (e.g., reading for pleasure, reading for information, reading to take an examination, reading what gets assigned in a course), and it has is, at times, within striking distance of the “high country of the mind.” This kind of talk, in legal education circles will get you called odd (and worse). I’m afraid that, with your help and encouragement, we’ve strayed rather far afield here. Let me get back on course if I can. What is this course, this course called "lawyers and literature," all about? I’d say that Lawyers and Literature is an exploration of our lives as lawyers from a literary perspective—that is, as readers of stories, as makers of stories, of writers who have a concern for the literary aspects of the words we present to the world. Lawyers and Literature is, by design, a course which can induce a certain amount of uncertainty. It is, after all, in literature that we are so often confronted with the incommensurable pull of law and the contrasting pull of justice, the pull of family and the pull of work, the pull of loyalty and the pull of independence. Faced with the conflict between known and unknown, safe and risky, high and low, hard and soft, we become, without good stories, overly determined, in rushed pursuit of questionable goals. I must leave to you, ultimately, to decide where this course belongs (and where, in your education as a lawyer, you will make a place for it). Based on what you know about legal education and about yourself, you’ll decide, one way or another, what "Lawyers and Literature" means. You must find a way, given the work you are asked to do as a law student, to find a way to work with literature? My argument, my hope, is that you will come to see that both the work you do as a law student and the work associated with reading stories is mutually reenforcing, if it is not the same work. Let me offer a rather speculative observation here: You can read the fiction assigned in "Lawyers and Literature" as if it were a meditation on home--having one, or not, getting away from home, returning home, finding a place for yourself in the world that might feel like home, carrying a sense of home around with you, the person you are at home vs. the person you are at the office. [We get this "sense of home" problem explored in the philosophical/existential sense in Walker Percy's fiction, and particularly, in his novel, The Second Coming. On the autobiographical aspects of the search for home theme in Percy's fiction, see: Walker Percy's Homeward Journey] So where would you have us begin? Another good question, and a tough question. We might begin with diagnosis, a diagnosis of the condition we are in. We might start, as a character in literature does, with an announcement: There is something wrong here. Something is happening to me I don’t like. (Call it bad vibes if you will.) Or, I’ve become a different person than I thought I’d be. And the person I’ve become is not although a person I particularly like. Or, everyone talks about how law school changes you. I don’t get it. I don’t think law school is changed me in the least. I’m sorry but I don’t see how this gets us to a way to begin a course of reading lawyer stories? Well, you might take a look at “The Death of Ivan Ilych”; this isn’t the first reading for the course, but we can use it as an illustration. In Ivan Ilych, we have a lawyer who we might diagnose as quite ordinary; he’s a conformist and a careerist. He leads the expected unreflective life. You might be interested, first, in the diagnosis. In what sense is Ivan Ilych, a fictional character, real? Can this description, this diagnosis of Ivan Ilych be applicable to anyone you know? Might it be applicable to you? And then, there’s the question: What’s the prognosis for a man diagnosed with the symptoms that we find in Ivan Ilych? Or consider the case of Jean-Baptiste Clamence, a man who thinks even more highly of himself than does Ivan Ilych. Clamence has assumed such a sense of superiority—Clamence says: “I deny it at every turn but I know I am”—he becomes a man of such contrived goodness and false virtue that we know it not a stable condition. Again, what are we to learn from being up so close to a character who has such a good impression of himself? Is there a possibility that we find ourselves dealing with those kind of people in our work as lawyers? Or, perhaps, we see some of Clamence’s self-righteousness in ourselves? Then what, dear reader, are you to do? Any final thoughts as we get about the work of the course? My first temptation, born of a mix of modesty, realism, and experience is to say, “I ask nothing of you. You must take these stories and do something with them, but what, what exactly you do with them is for you to say. I bring you the stories; I present a rough outline of the ways we might try to talk about the stories in class. And in doing so, I leave for you, using whatever you bring with you, to find something of value, some way of reading the stories, that you might translate into a meaningful writing for the course.” I might take another tactic; the exalted high ground: The course is not about survival, about your fear of failure, about the real possibility of your becoming a protagonist in a horror story. (This view, possible but implausible, has you looking in the wrong direction.) You might think of the course, not as a test of survival (pushed on you by your real, and imagined fears of failure, which I have called a horror story), but as a windfall or great riches story. (Is there a society without such stories?) You play and win the lottery. Now what happens to your life? Cinderella, you are discovered by and marry the prince. Now what kind of life do you lead (my Princess Diane)? A country/peasant boy falls in love with the princess who wins the test posed by the king/father and wins the hand of the princess. Can the new prince, coming from where he comes, govern? You might think of literature, your immersion in it, as the bestowal of great riches. You can wallow in riches, you can dress yourself up like a peacock and parade around the barnyard, or you can channel the riches for good (not only your own good, but the good of others). You can become a seeker or a giver. You can become a sot or a sycophant. You can invest your windfall in sound investments or risky ventures. In law school, you are still being asked to write--essay examination questions, legal memoranda and briefs, and perhaps case notes and articles for the law review--and your work is being evaluated and judged. Lawyers too are subjected to similar kinds of evaluation. As a lawyer you write for other colleagues in your firm, prepare documents for clients, and legal briefs submitted to courts. While these writings will no longer be returned marked with a grade, they will, nevertheless, be subject to the most critical scrutiny and judgment. Are there other courses like what you have in mind for us being taught at other law schools? Many law schools offer courses in "law and literature." These courses differ a good deal, depending up the teacher. Basically, most law school courses in "law and literature" focus on law and justice. In "Lawyers and Liteature" the focus is on lawyers, and on what we find beyond the law that might be informative and instructive on the lives we live as lawyers. [For a rare effort to outline the difference between the traditional "law and literature" course and a "lawyers and literature" course, see that your William Domnarski, Law and Literature, 27 Legal Stud. F. 109 (2003)]
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For a conversation about "lawyers and literature" and other matters, see: | 