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 outsideas 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
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?
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