I’ve been playing hooky with the blog, admittedly. This is partly because I have been working hard on a writing project in the hopes I’ll have a decent first draft completed by next NaNoWriMo. I’m writing an article for a bar association journal (the text of which I’ll upload here when I’m done). Also, I’ve been reading and re-reading the fabulous Scalia footnote from City of Arlington v. FCC because it may hold the key to the secrets of the universe. If only I were just a little smarter.

So I’ve only got time for a quick post. Let’s talk about books, or more specifically, summer books. Depending on who you ask, a good summer book is either 1) interesting and challenging (like Judge John M. Woolsey, who read Ulysses on his vacation in preparation for drafting the opinion ruling it not obscene); or 2) pulpy and so formulaic that spilling one’s margarita over two-thirds of it makes little difference (like seventy-five percent of what’s sold in bookstores today). I prefer the former. This summer I think I am finally going to suck it up and read Middlemarch, and possibly finish the Henry James I started a couple of summers ago before I drank too many margaritas. But if Georgian realism is not to your taste, I humbly offer up the following suggestions:

1) The Third Coast: When Chicago Built the American Dream, Thomas Dyja


City of Scoundrels: The Twelve Days of Disaster That Gave Birth to Modern Chicago, Gary Krist

I’ve been on a Chicago kick ever since I read Devil in the White City. Both of these are eminently readable, although you may learn to fear fire.

2) The Swerve: How the World Became Modern, Stephen Greenblatt

This has been out for a while. If you haven’t yet read it, you should; it will change the way you understand history.

3) Embroidered Ground: Revisiting the Garden, Paige Dickey


The Writer in the Garden, Jane Garmey (ed.)

My backyard runs, roughly, at about a seventy degree angle to my house. The whole neighborhood is hilly. When we moved in I had to re-engineer everything I knew about landscaping. Dickey is a celebrated gardener who writes lovingly about her relationship with her garden, how it has developed and changed with time and with her advancing age. The Writer in the Garden is an anthology of essays by writers including the likes of W.S. Merwin, Andrew Marvell, Katherine Mansfield, Vita Sackville-West and Jamaica Kincaid.

4) The Stockholm Octavo, Karen Engelmann

A smart, dense historical whodunit.

5) The War of Art, Steven Pressfield


Make Good Art, Neil Gaiman

Both books are food for creatives, or for people who would like to be more creative. Also, if you don’t know who Neil Gaiman is we probably can’t be friends.

6) The Virtues of Poetry, James Longenbach

I know you won’t read it, but I wish you would. I wish everyone would.

7) Gilead, Marilynne Robinson

An aging man’s love letter to his young son, and to life. Robinson’s writing is the literary equivalent of cool, clear blue water and a fragrant breeze. I go back and forth about what book is my absolute favorite, but Gilead is always in my top three.

8) The Night Train, Clyde Edgerton


Train Dreams, Dennis Johnson

Two very different books united, but a train runs through them (apologies to Norman Maclean). Night Train is a coming of age story set in the deep south, as television brings “race music” to a small town. Train Dreams ranks up there with Gilead in my mind. I won’t tell you more than that. You will love it.

9) The Barbarian Nurseries, Hector Tomar


These Dreams of You, Steve Erikson

Both are novels about disintegrating families, the recession, and the ways that immigrants experience America. Both are ultimately hopeful.

10) The Devil’s Tickets, Gary M. Pomerantz

For the lawyers who can’t leave the office behind. Pomerantz relates the true story of Myrtle Bennett, who shot her husband to death in 1929 for calling her a “bum bridge player,” and her lawyer, James A. Reed. A little knowledge of how bridge is played is helpful but not necessary. The real story concerns nascent feminism in a nation on the cusp of the Great Depression.

Let me know if you have your own suggestions or if you like (or hate) any of mine. Happy summer!


Lawyers do a lot of research.

It might surprise you to learn that poets also do a lot of research.

We tend to assume that poetry springs from the mind of the writer like Athena from the mind of Zeus: fully formed.  But not so much.  Image

From Jeffrey Skinner’s “The 6.5 Practices of Moderately Successful Poets: A Self-Help Memoir” (Sarabande Books 2012), two quotes from writers who are more than moderately successful:

I need to ground my work in particulars.  In my case this usually means a material object such as a book, or a manuscript, most recently lace.  Often a historical moment, or a specific person.  Not a made-up character – I could never be a novelist – but I try to understand all aspects of the person I am writing about the way a playwright or an actor might.

– Susan Howe

I’m usually more comfortable dealing with atmospheres and sensations than irritably reaching after facts.  “American Myth” began, really, when I was a kid, dipping into books I didn’t understand on my parents’ bookshelves.

– Kathleen Ossip

Lawyers tend to be pretty good at the first sort of research because it is the sort of research that develops answers to specific questions.  A client wants to know whether he has a cause of action based on a discrete set of facts.  We plug the facts into the Westlaw search bar and come up with an answer.  This is deep research: time spent accumulating information responsive to a specific problem.  Like Susan Howe, we “ground” ourselves in the facts presented in a client’s matter.  What we learn might be helpful to us again at some point in the future, or it might not.

Kathleen Ossip, on the other hand, relies on what we might call wide research.  She doesn’t start out with a topic to write about necessarily; instead, having read widely she draws upon what she has accumulated and comes up with something interesting, a connecting line between two points that no one else has spotted before.  And she writes about that.

Now I am going to suggest something that the lawyer marketing gurus would probably consider heresy.  Which kind of research is more important to a lawyer’s success?  I say the second, and here’s why.

The fact is that anyone of moderate intelligence with access to Westlaw or Lexis or Google can answer a distinct legal question.  It may not be the most polished answer, and you won’t want to bet the company on it, but realistically as information has become readily available online it has become less and less necessary to pay a lawyer for access to the information.   We are no longer gatekeepers because the fences are down.

The value a lawyer brings to a particular transaction is no longer information but knowledge.  Knowledge is to information as a shopping cart is to the items on the shelves at the grocery store.  A person with knowledge understands which items are relevant and necessary, which are too costly or of too poor quality, and which should be purchased and stored for future use.

This is why I pointed out in an earlier post that Justice Scalia is wrong to critique the “Law and . . .” seminars offered by law schools.  Yes, it is important to understand legal subjects in depth.  It is equally important to bring the contexts of history, culture, psychology, politics, and economics to bear on legal issues.  No legal problem exists in a vacuum.  It is nonsensical to expect that its solution should.

My background is in literature and I continue to read a great deal.  I probably average two or three novels a month, sometimes more, sometimes less.  I am certain that my reading informs my work and my thinking.  Personally I believe literature is the best source for understanding all of those contexts I mentioned in the preceding paragraph.  You might not, and would prefer to read pure history.  Or maybe you are a film buff.  Do whatever just so long as you are acquiring breadth as well as depth.

The better able we are to think and reason and exercise discretion, the better prepared we are to practice law.  These are skills not taught in law school or any CLE and not available for purchase online.  They are acquired over a lifetime of learning and they are exquisitely valuable.

The morning is long past here on the East Coast. It is still sort of morning on the West Coast. So let us consider this a Monday Morning Hearsay Pacific Edition, and let it be at that.

I have said it before, and I will say it again: if you like James Patterson, we probably cannot be friends. Does that make me a snob? No. It means only that I love the English language sufficiently that I dislike seeing it abused.

The same goes for Twilight, Hunger Games, or, for the love of God, those Gray abominations. I thought there was no way that I could revere Salman Rushdie any more than I already did. But recently I read an article in which he was quoted as saying that Fifty Shades of Gray makes Twilight look like War and Peace. Then I knew that I was wrong, and that one can always love one’s heroes more. Thank you, sir. I eagerly await Midnight’s Children.

That juxtaposition got me thinking, though. Maybe you have seen those Eat This, Not That books that show you pictures of the twenty-five peanut butter sandwiches you could eat instead of one Big Mac. Here is my reader’s edition. Call it Read This, Not That. So we can still be friends.

Instead of: Fifty Shades of Gray
Read: Moll Flanders, Daniel Dafoe

Instead of: Twilight
Read: The Last Werewolf, Glen Duncan

Instead of: The Hunger Games
Read: The Handmaid’s Tale, Margaret Atwood

Instead of: Anything by James Patterson
Read: Anything by P.D. James or Ruth Rendell

Instead of: Killing Kennedy or Killing Lincoln
Read: Destiny of the Republic, Candace Millard or The President and the Assassin,
Scott Miller

Instead of: No Easy Day
Read: Confront and Conceal, David Sanger

Instead of: Anything by Malcolm Gladwell
Read: Science. Just science.

I’ll revisit this from time to time. No doubt 2013 will bring some new awful dystopian world of teenage werewolves killing each other with giant chess pieces. Or something.

I’ll be reading Joseph Anton if you need me.

It is not often, at least if you live outside of Wisconsin, that you get to see judges duking it out in a public forum. When it does happen, it’s usually pretty mundane by reality television standards: one judge calls out a logical fallacy in another judge’s published opinion or politely suggests that a case could have been decided on narrower grounds. Bystanders take note and study their salad plates until someone changes the subject.

So it is not too hyperbolic to say that the recently reported exchanges between Judge Richard A. Posner of the Court of Appeals for the Seventh Circuit and Justice Antonin Scalia of the Supreme Court are the judicial equivalent of a Monday Night RAW wrestling match complete with pre-ring trash talk. Only Vince McMahon is missing, and that may be because this match is too intense for him.

It began innocently enough when Judge Posner reviewed a book co-authored by Justice Scalia and his perpetual literary sidekick, Bryan Garner, “Reading Law: The Interpretation of Legal Texts.” It’s no secret that Judge Posner and Justice Scalia approach interpretation in different ways, with Judge Posner a well-known proponent of pragmatism and Justice Scalia an equally well-known originalist. Judge Posner’s critique of the book, in “The Incoherence of Antonin Scalia,” published in the August 24, 2012 edition of The New Republic, was, well, critical. He suggested that Justice Scalia violated his own principles of interpretation by relying on legislative history in the Heller v. District of Columbia opinion he authored, in which the Court struck down handgun legislation based on the Second Amendment. He wrote that arguments presented in the book were poorly researched and that anecdotes offered to prove a point often proved the contrary. Ultimately, Judge Posner’s primary critique lay with textual originalism itself, which he argued often leads to illogical results.

Does an ordinance that says that “no person may bring a vehicle into the park” apply to an ambulance that enters the park to save a person’s life? For Scalia and Garner, the answer is yes. After all, an ambulance is a vehicle—any dictionary will tell you that. If the authors of the ordinance wanted to make an exception for ambulances, they should have said so. And perverse results are a small price to pay for the objectivity that textual originalism offers (new dictionaries for new texts, old dictionaries for old ones). But Scalia and Garner later retreat in the ambulance case, and their retreat is consistent with a pattern of equivocation exhibited throughout their book.

There isn’t much here that hasn’t been said about textual originalism before, which is why the response from Justice Scalia is surprising. (Garner’s response, posted on his own blog and as comments on various online fora, is more or less what you’d expect, although he implied that Judge Posner might no longer be his friend.) Justice Scalia started off by calling the review a “hatchet job” in a speech to 500 book tour attendees. In a September 17, 2012 interview with Reuters, he called Judge Posner’s suggestion that Justice Scalia used legislative history in Heller “a lie.” In another interview he referred to The New Republic as a “glossy,” and said that while Judge Posner’s article might fly there, it would not persuade “a legal audience.” A former clerk of Justice Scalia’s called the Posner review “wildly incompetent.”

It’s worth reading all of this within some broader context. A couple of months before the review appeared, Judge Posner also criticized Justice Scalia’s dissent in Arizona v. United States. Asked about it on Fox News Sunday, Justice Scalia responded, “He’s a court of appeals judge, isn’t he? He doesn’t sit in judgment of my opinions as far as I’m concerned.”

I’m pretty sure Teresa said something just like this on Real Housewives of New Jersey.

Both of these jurists have written extensively for legal and non-legal audiences, and both of them advocate a particular approach to constitutional interpretation, so the passion is understandable. A recent book by Judge J. Harvie Wilkerson III of the Court of Appeals for the Fourth Circuit, however, takes issue with constitutional theory altogether.

In “Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Rights to Self-Governance” (Oxford Univ. Press 2012), Judge Wilkerson discusses the pragmatic and originalist approaches as well as the “living text” approach popularized by Justice William J. Brennan and the political process theory of John Hart Ely. Ultimately, though, Judge Wilkerson argues that no “cosmic” or all-encompassing theory of interpretation is satisfactory, and he suggests that judges simply adopt judicial restraint. He writes, at page 105:

When priests forsake their raiments, shall we listen to them then? When firemen leave behind their trucks and hoses, shall we listen to them then? When plumbers cease to talk of pipes and drains, shall we listen to them then? When judges lay aside the law for policy, shall we listen to them then?

Judge Wilkerson lauds Justices Holmes, Brandeis, Frankfurter and Powell, among others, who, he writes at page 110, “were able to express inclinations about how to decide cases without claiming to have uncovered the Constitution’s Rosetta Stone.” But while he concedes that activist decisions of the Warren Court such as Brown v. Board of Education and Gideon v. Wainwright were correctly decided, he argues at pages 110-111, without providing explanation or rationale, that all of the important civil rights cases have been decided and that there will be no further need for such activism in the future. Issues such as same-sex marriage or gun control are merely “frontiers of social policy” better left unexplored by the courts. It is difficult to square Judge Wilkerson’s unwillingness to “constitutionalize” same-sex marriage with his approval of Brown other than to presume that he finds one social policy worthy and the other not. But this seems to be exactly the sort of judicial policy determination that justifies restraint in the first place.

In arguing against theories altogether, “Cosmic Constitutional Theory” is unlikely to engender a Posner vs. Scalia-style smack-down. Thank goodness. It is worthwhile reading for those interested in a more thoughtful discussion of the issues.

In case you’re interested, though I don’t expect you to be.  I typically juggle several books at a time and read one or the other depending on what mood I’m in and what my attention span is.

1.  In the Shadow of the Wind, Carlos Ruiz Zafon.

A Spanish bestseller recently translated into English.  I read some Spanish, enough to recognize the cadence even in the translated version, and it is beautiful.  The story dwells firmly in the world of magical realism, but lacks the clichés of some of the recent additions to the genre.  “In the Shadow of the Wind” is itself the title of a novel by a mysterious writer named Julian Carax, whose story young Daniel Sempere is determined to unravel despite danger to himself as well as odd parallels between the novel and himself.  Set in post civil war Barcelona, the city and its factions are as much characters as anyone else. 

2.  Enchantment, Guy Kawasaki.  Meh.  I don’t know why I keep doing this to myself. 

3.  On Literature, Umberto Eco.  Have I mentioned how much I love Daedalus Books?  I’m blessed to have a warehouse outlet near where I live, and stopping by makes my day every single time.  They carry out of print and remaindered books, which, given the taste of the American reading public, is pretty much everything good.  And they’re rock-bottom cheap.  A few days I ago I scored this, along with three or four volumes of poetry, and paid $ 25.00. 

Anyway, you may recall Eco as the author of The Name of the Rose.  Its sheer heft scares a lot of people off, but like Tolstoy once you start it you can’t stop.  I haven’t read any other of his books, but now that he’s back on my radar screen I think I will. 

3.  History of the Ancient World, by Susan Wise Bauer.  Another long one (around 800 pages), but very much worth the read if you’re interested in getting a better grasp on pre-fall of Rome history.  I actually just finished reading, so this isn’t technically something I’m reading now, but at 800 pages I feel like I should get some credit. 

The focus is on the development of the best documented cultures: Sumeria/Assyria/Babylon; Greece; India; Egypt; China; and eventually Rome.  Occasionally Bauer sneaks in a new tribe she hasn’t previously introduced, which was a little disconcerting, and by the end I was having trouble keeping the Hittites and the Bactrian Greeks and the Aryans (the original ones, in India) straight.  But now I can sound smart at parties. 

4.  A Village Life, Louise Gluck.  I almost always read a poem or two at bedtime, and this is the volume I’m working on now.  I’ve worshipped Gluck for years, but this slim collection, set in an unspecified Mediterranean village, takes my breath away.  Think of Spoon River Anthology plus Winesburg, Ohio and add in the shimmering language of a truly gifted poet.  Mmmmmmmm.  Also, for me at least the feel of a book of poetry is almost as important as the words inside.  Fat anthologies are purely utilitarian.  I like the feel of a little, beautifully bound book in my hand, and this one is just the right size, with just the right sort of paper and a lovely font.  As much as I adore my Nook, I will always treasure this sort of aesthetic.  And there isn’t much poetry in the online shop at B&N anyway. 

Finally (and off topic), good luck to my hubby John, who will be running the 15th annual Port to Fort this weekend to benefit Believe in Tomorrow, providing hospital and respite services to critically ill children and their families.  Please consider supporting this wonderful organization.  If you’d like to sponsor my husband, email me at  Or just go here.  Who knows what books these children will grow up to write?

So, the inevitable St. Patrick’s Day post.

I celebrate St. Patty’s Day because people would look at me funny if I paraded around in a kilt on St. Andrew’s Day with a plate of haggis. 

The legend of St. Patrick is one of those big symbolic myths.  Patrick, so the story goes, was born in Britain, kidnapped by raiders, and taken to Ireland where he was held as a slave.  Eventually he was freed and returned to Britain.  He returned some time later as a missionary and began converting everybody.  Then he drove the snakes off the island.

There is a school of thought that the “snakes” in the story symbolize the Goddess of the ancient Celtic religions.  If you’ve read The Red Tent, The Mists of Avalon, or any of the many other feminist-chick-lit books out there, you’re familiar with this general theme.  (I shouldn’t lump Mists in with that group, really.  It’s a damn good book.) 

Robert Graves’ White Goddess, however, is the scholarly source for most of these.   The book has its critics: historians who argue inaccuracies; Christians who consider it blasphemous; neo-pagans who call it too Judeo-Christian.  Modern experts point out that there was no “Triple Goddess” (maiden-mother-crone) in Celtic mythology.  Feminists call it sexist because, in Graves’ view, women may not be poets, only “muses.”

I think these critics are missing the point.  White Goddess is more a history of the bardic tradition, and in writing the book Graves inherited, in my opinion anyway, the torch previously held by Yeats, Eliot, and Auden, respectively.

Lawyers share a common heritage with the Celtic bards.  In ancient Ireland, a class of poets known as fili served as religious leaders, lawgivers and judges for the community.  Eventually they developed “niche practices”, with brehons as lawyers/judges, druids as priests, and the fili as poets.  These poets, or bards, held a vital position in Celtic society.  They were the keepers of cultural heritage and collective wisdom. 

This tradition declined with the influx of Christianity and eventually gave way to the chivalric romances that we associate with Olde England: Arthur, Tristan and Isolde, Sir Gawain. 

The oral histories of the fili-bards likely contributed to what is quite possibly Ireland’s greatest gift to the world (besides the Jameson): the Book of Kells. 

Although – some believe the manuscript was actually created in Scotland.  But let’s not spill any Laphroaig over it. 

Erin go bragh!

In the two pieces he composed shortly thereafter, he struggled to answer the question he had indirectly posed in both “September 1, 1939” and “Musee des Beaux Arts”:  Is there a law that cannot be ignored, that applies under all circumstances, and that applies to all people?  Is there a law which does not turn away from human suffering?

The first of these two poems was “Law Like Love.”  It opens with seven stanzas worth of philosophical taxonomy: law, according to the gardeners, is the sun, an ancient, immutable, inscrutable thing.  According to the old, the law is collected wisdom; according to the young, it is sensation.  Auden spared not clergymen:

 Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.


Nor, amusingly, judges:

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.


Scholars, he wrote, argue that law is purely relative, no more than the crimes designated at any given time or place, to be adopted and discarded like “the clothes men wear/Anytime, anywhere.”  Or it is the voice of the politically powerful – the “crowd,” a Kierkegaardian concept – superimposed against the voice of the individual in need of protection from the excesses of power:

And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.

Auden ultimately rejected each of these approaches, but he hesitated to say what law is.  Instead, he suggested only what law is like: It is like love.  The comparison seems mawkish at first, but he quickly disabuses us of our sentimentality:

Like love we don’t know where or why,
Like love we can’t compel or fly,
Like love we often weep,
Like love we seldom keep.


Man-made law, like love, often fails us.  It seems arbitrary.  It reduces us to tears.  And it is seldom kept, or at least it must have appeared that way to the Europeans who stood between Hitler and his ascendancy to total power.  In the moment of time within which “Law Like Love” was composed, the laws of men were absolutely worthless.  None of the conventions of Versailles, none of the limits imposed by the nations opposed to Hitler’s aggression has prevented the war.  And though Auden could not have known it at the time, the law would and could do nothing to prevent the establishment of Auschwitz or the other Nazi factories of death.

The poem leaves us stranded on the edge of a very troubling place.  If the law is such a fickle thing, what do we gain by submitting ourselves to it?  If the law can do nothing to protect the powerless – and in truth it cannot, since ultimately law is determined by those with sufficiently concentrated power – what is its value?

The answer, for Auden, lay in “The Hidden Law,” written as a sort of postscript to “Law Like Love.”

The Hidden Law does not deny
Our laws of probability,
But takes the atom and the star
And human beings as they are,
And answers nothing when we lie.
It is the only reason why
No government can codify,
And verbal definitions mar
        The Hidden Law.
Its utter patience will not try
To stop us if we want to die:
When we escape It in a car,
When we forget It in a bar,
These are the ways we’re punished by
        The Hidden Law.


The “hidden” law is natural law, a concept Auden had been struggling with for some time.  Although he had been an atheist, by the nineteen thirties Auden was a man of deep religious faith who had begun reading Soren Kierkegaard.  Kierkegaard drew a distinction between human love and divine love, and similarly between human law and divine law.  Human law, like human love, is fallible.  Natural law is not.  Ultimately, Auden believed, the Fascists would not escape it.

Auden’s prediction proved correct, but at enormous cost.  After the war, he was hired by the United States Strategic Bombing Surveys Morale Division to tour Germany and interview civilians there.  The Allies wanted to know whether prolonged bombing had hastened Germany’s surrender.  He said little about the experience, but years later he wrote in “Memorial for the City”:

The steady eyes of the crow and the camera’s candid eye
See as honestly as they know how, but they lie.
The crime of life is not time.  Even now, in this night
Among the ruins of the Post-Vergilian City
Where our past is a chaos of graves and the barbed-wire stretches ahead
Into our future till it is lost to sight,
Our grief is not Greek: As we bury our dead
We know without knowing there is reason for what we bear,
That our hurt is not a desertion, that we are to pity
Neither ourselves nor our city:
Whoever the searchlights catch, whatever the loudspeakers blare,
We are not to despair.

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