lawyers and literature
James R. Elkins

A Response to a Student's Writing

A student asks me to review a short writing for Lawyers and Literature. I ask him what he would like me to do as a reader. He says: "I don't know whether I have found a good theme or not. Perhaps you can read it and let me know what you think."

I tell the student that he has in fact identified a theme from the stories we have been reading and that there is no reason the theme he has identified can't be woven into a thoughtful, instructive, reflective essay. Moreover, it appears that the theme has special resonance for him and one hopes this will make the writing easier.

While the student has identified a powerful and writeable theme, I have some concern about the writing he has submitted to me. The statements made about the stories are simply too pro forma and reductive to be of much use. They establish only that the student has read the story, but not how or why these stories are being read, or what value they might have to the student or to any other reader. The problem is that the writing doesn't reflect much engagement with the stories.

From what I can see in the writing, the student talks in a cursory way about the stories and then begins writing about his own situation, at which point the stories completely disappear. It is unclear how the stories have informed the student's reflections. At one point there is a discussion about lawyers as insiders and outsiders, and the student concludes: "Some people are natural insiders whatever their profession, while others must be content to be outsiders." The conclusion doesn't follow from the stories we have been reading, indeed the stories seem to suggest otherwise, but there is no reference to any conflict between the stories and the conclusion. How, one wonders, can the insider/outsider theme in stories/literature have any bearing on lawyers as insiders and outsiders if we are simply living out our genetic inheritance? How can literature matter if we are by force of nature relegated to outsider status? And isn't it an odd use of the word natural to suggest that some of us have been relegated to alienation and suffering as outsiders? Some of us may find our place—inside and outside—as natural, but for others it will be experienced as forced, as quite unnatural. Some relegated to a life as outsiders will be forever discontent. While some will only fume and fuss and complain as outsiders, others will angrily rage against this fate. Some outsiders become rebels and revolutionaries.

The student mentions some "internal baggage" that follows his desire to be an insider, of having gotten to places where he thought he would be an insider and then found that he was not. But again, this claim is not given any substance. When he says he has "all this internal baggage" the reader must feel the weight of it, must be given some sense of how it pulls him down, slows him down, how it bothers and annoys him. Otherwise, "all this internal baggage" exists just as words on the page.

The basic point is that this student's conclusions don't fit the stories (Kafka's "Before the Law, "The Death of Ivan Ilych," The Fall, The Second Coming). Indeed, the arguments in the paper don't seem to fit the student's own diagnosis of the situation. For example, he begins the essay by noting that "Those on the inside have achieved a certain level of success, yet they remain encumbered by the same fears, insecurities, and other human frailties that are common to us all." I don't understand how this squares with the conclusion that some folks are just "natural insiders." If they are natural insiders one might assume they would have less insecurity and fear, but then, it's not clear what distinguishes insiders and outsiders. I would think that fear and insecurity might be different for insiders and outsiders, present perhaps for each, but experienced differently.

I would assume that we don't all suffer the same kind of fear and insecurity. Atticus Finch doesn't seem to be in the same condition as Ivan Ilych, indeed, they seem to exist in rather different universes. Or compare Atticus Finch and Jean Baptiste-Clamence. I think Will Barrett, for all his musing about his life, and his peculiar symptoms, is in a rather different situation than Ivan Ilych. Will Barrett is full of existential questions and reconfigures his life to take account of his reflections. Ilych, on the other hand, experiences fear which is ultimately uncontainable. While Will Barrett enters a period of confusion and uncertainty, we watch his emergence from the fog that has enveloped his life. Is it possible that Ivan Ilych and Will Barrett suffer from the same fear and insecurity? Doubtful. The fear that Ilych suffers carries him virtually to death. There is, we surmise a moment of recognition before death that some answer or relief has been found. Barrett goes down into his depression and survives by charting a "third way"; he accepts neither the mindless insanity of his culture or the path of suicide which his father has taken. We don't know whether Will Barrett will ever be free of his bouts of despair, but we know that he will prevail in a way that Ivan Ilych cannot. We may not know what lies ahead for Will Barrett, but a case can be made for the proposition that Barrett is heading for a life far different than Clamence's stunted performances for patrons in an Amsterdam bar.

And where is the student going with the following statement? "Those on the inside have achieved a certain level of success, yet they remain encumbered by the same fears, insecurities, and other human frailties that are common to us all." The statement is just true enough to disguise the fact that it doesn't work. This lumping/sameness/"we're all alike move" has a certain rhetorical power when used in the right situation—e.g, when Scout reminds Walter Cunningham who has joined the lynch mob at the jail who has set out to abduct and kill Tom Robinson, that he has been to their house and that she knows his son. There are, of course, more benign uses of the move. Atticus tells Scout when she asks him whether they are poor, that indeed they are, but goes on to explain what he means. Sometimes, the we-are-all-in-the-same-boat move is just a way of saying I really haven't thought this matter through and can't explain it and yet I must write something and here it is. For example, law students, during their first semester of law school will sometimes write about the comforting feeling that they are all in the same boat together. They take comfort in solidarity. The comfort and the sense of solidarity comes to a thudding end when grades are published and the happy family becomes tribes of have's and have not's.

When the student goes on to write about his need to be an insider, he makes it sound like going to the laundry to pick up clothes. I didn't get a sense from his writing there was any feeling or any weight attached to the words. The student writes: "[B]eing in law school while having grave doubts about practicing law is a miserable experience." Maybe it is. I assume it is for the writer of these works. I don't doubt the truth of what is being said, but then, as I read on, I begin to actually question the claim. When the language that follows presents a contrary feeling tone and impression, then the claim about law school being a "miserable experience" loses its presumed legitimacy. The words of the claim must be argued, or demonstrated, or evidenced. Assertions don't carry as much weight as demonstrations. As a reader I want to believe in what a writer writes, but writers, like characters in fiction are sometimes unreliable narrators of their own lives. But how can I know what the writer is doing if his language fails him? As the reader, I want to be sufficiently convinced of this student's misery so I could defend it, and my conviction that it portrays a kind of narrative truth.

A similar concern is raised by the student's statement that he finds reading the stories assigned in the course "utterly enjoyable." I like the term "utterly enjoyable." He doesn't say "very" enjoyable. We tend to overuse the word very and in trying to make our language more emphatic, we weaken and dilute it. The word "utterly" provides a surprising and energetic lift to an essay that has been on the short side of flat. While I am enthusiastic about the use of the word "utterly," I begin to wonder whether it was not just a fortunate phrase. And why did I lose faith in the expressed enjoyment? There was not much but the phrase to pin my hopes on. The writer didn't say much at all about his actual reading of particular stories, and didn't point to particular passages in any of the stories that made the reading enjoyable. The reader is asked to assume on assertion standing alone that there was some enjoyment to be had. But how can the claim be credited by the reader when the writer hasn't spoken more fully about his reading and what happened during the engagement with the stories? Doesn't the assertion that the stories were "utterly enjoyable" need to be presented in a way so that the reader can experience along with the writer some of this enjoyment?