There are only two posts up so far, it appears.  I’ll be keeping an eye out for new posts (and who am I kidding, I am absolutely going to submit.  What rhymes with judicata?)

Check out the Law Poetry blog here.

 

Before Gardens: The Golden Age
 
 
 
Then sprang up first the golden age, which of itself maintained
The truth and right of everything, unforced and unconstrained.
There was no fear of punishment, there was no threatening law
In brazen tables nailed up to keep the folk in awe.
There was no man would crouch or creep to Judge, with cap in hand:
They lived safe without a Judge in every realm and land.
The lofty pine tree was not hewn from mountains where it stood,
In seeking strange and foreign lands, to rove upon the flood.
Men knew no other countries yet where themselves did keep;
There was no town enclosed yet, with walls and ditches deep. 
No horn or trumpet was in use, no sword or helmet worn:
The world was such that soldiers’ help might easily be forborn.
The fertile earth as yet was free, untouched of spade or plough,
And yet it yielded of itself of every thing enough.
And men themselves, contented well with plain and simple food,
That on the earth of nature’s gift, without their travail stood,
Did live by raspis, hips and haws, by cornels, plums and cherries,
By sloes and apples, nuts and pears, and loathsome bramble berries,
And by the acorns dropped on ground from Jove’s broad tree in field.
The springtime lasted all the year, and Zephyr with his mild
And gentle blast did cherish things that grew of own accord,
The ground untilled, all kinds of fruit did plenteously afford.
No muck nor tillage was disposed on lean and barren land,
To make the crops of better head, and ranker for to stand.
Then streams ran milk, then streams ran wine, and yellow honey flowed
From each green tree whereon the rays of fiery Phoebus glowed.
 
 

Ovid (trans. Arthur Golding)

Ovid-006

I am currently preparing to take the Virginia bar exam. Although many states allow lawyers admitted elsewhere to “waive in” without taking the bar exam or to take a shorter “attorney’s exam,” Virginia requires the exam unless you plan to move to the state to practice full time.

So almost sixteen years after I graduated from law school I’m studying criminal procedure again. It’s all very different this time around, now that I have a busy practice, three children, two dogs, and an old-ish house we bought six years ago because it was a deal and we could do the renovations ourselves.

One of the quirks associated with the Virginia process is that folks taking the exam must do so in full “business attire,” which according to the dress code helpfully posted to the examiners’ website means “suit or jacket and tie for males, and a suitable dress or suit (pantsuits are acceptable) for females.”

Let me first remark that in the year 2013, it is no longer necessary to specify that pantsuits are acceptable for women. Seriously, if you are living someplace where pantsuits are not acceptable for women, you are probably living someplace where elbows are also not acceptable for women.

But that isn’t really my point. What irritates me about this requirement is that it takes no account of the fact that this is an exam, not a court appearance; no judge, jury or representatives of the press will be there. The bar examination is essentially two nine-hour days spent sitting at a wobbly hotel table in a poorly-lit ballroom with three hundred people, some of whom are really nervous and prone to excessive wriggling and vomiting. No one should care what any of these poor souls look like, and no one needs to remind them how momentous the occasion is. They already know it’s a big deal because they’ve invested three years of their lives and $120,000+ of their money (in non-dischargeable student loan debt) getting to that ballroom. Did I mention the vomiting?

I don’t want to blow this all out of proportion. I won’t dwell on the fact that the dress code smells a little Southern good ol’ boy to me, although it does; I have additional thoughts on that possibility but I won’t elaborate further.

I do want to point out that, to my mind, what’s missing in this scenario is discretion.

There’s a lot of buzz on the web right now about making law schools more practical and economical. Some states are considering, and at least one has already decided, to allow students to take the exam during their third year so they can hit the ground running once they graduate. Some are calling for schools to eliminate the third year altogether. Many argue that law schools need to provide more real world legal and business skills. Thousands of law grads from the past few years are either unemployed or underemployed right now; certainly something needs to change, and these are good suggestions.

None of the suggestions, however, account for the way the practice of law itself seems to be changing. So-called lower end services such as will drafting are becoming more and more commoditized. Why pay a lawyer even $100 for a will if you can fill in the blanks on a site like LegalZoom for $50 (or whatever it costs; I haven’t checked and don’t really want to). “Virtual practice” and “unbundled services” are just other names for comoditization. They are ways to provide widgets at low cost to people who need widgets.

And when you hear business people complaining about lawyers or the corporate legal department, what are they complaining about? They complain that the lawyers are unnecessarily risk-averse, that they shut creativity down, that they don’t listen.

I have had the opportunity to work with some really fine lawyers. What impressed me about these lawyers was not that they could consistently bill twelve hours a day but that they knew what to say, how, when, and to whom. They exercised discretion and judgment in advising their clients, and the clients always appreciated it. They understood the global picture for the client, including the way that a particular problem fit into the client’s world, and they understood that the best means for solving the client’s problems weren’t always litigation even if litigation would be terribly lucrative for the firm.

A discrete person is capable of considering all of the relevant facts and, having considered them, making the best choice among various courses of action. A discrete person is trustworthy. Law schools cannot teach discretion. Experience teaches discretion. This is why I’m concerned that so many recent grads are being shuttled into solo practice. Practicing by oneself requires the highest kind of discretion because there are no built-in checks and balances. I’m just not convinced that a guy who was a frat boy just a couple of years ago is ready to assume that kind of responsibility.

Rigid rules, guidelines and dress codes only bolster the notion that law is a sort of computer code: enter the right characters in the right order and you’ll get yourself a verdict, or a contract, or a divorce. The Virginia bar dress code suggests to the people taking the exam that if they put on the suit, they’re lawyers. Because lawyers wear suits.

But the law is not a jacket; you don’t don it one day and take it off the next. Sometimes being a lawyer means wearing jeans and a t shirt while you dig through moldy documents in a warehouse somewhere, just as it means sometimes advising your client against a course of action because you know that ultimately it won’t be good for the client. Discretion.

I’ve never been a fan of conformity for conformity’s sake, and no doubt that sentiment is at the bottom of my thinking on this. Some will read this and think I’m being ridiculous. That’s okay.

I do think, though, that dress codes and the like are emblematic of a kind of legal culture that needs to fade away for the sake of the profession. We are entering an era in which the ability to discern will distinguish us from outsourcers and software. Merely dressing the part will not save us.

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You must understand that, to my mind, The Great Gatsby is the finest, most perfect thing ever written.  I know there are different camps on this: the Tolstoy camp, the Hemingway camp, Shakespeare, Faulkner, Hardy, Joyce.  I worship at the altars of these men, too, but they are demigods.  Fitzgerald stands head, shoulders and probably elbows above all of them.

In Gatsby, Fitzgerald marries an extraordinary story with deeply human characters, and brings both to the page with poetry.  Some of the prose makes the back of my throat ache.  Asked to name a favorite line or scene from the book, many people mention the shirt scene, when Daisy Buchanan is moved to tears by Jay Gatsby’s colored silks.  I like that scene, too, but it’s not my favorite.  This is:

We walked through a high hallway into a bright rosy-colored space, fragilely bound into the house by French windows at either end.  The windows were ajar and gleaming white against the fresh grass outside that seemed to grow a little way into the house.   A breeze blew through the room, blew curtains in at one end and out the other like pale flags, twisting them up toward the frosted wedding cake of the ceiling — and then rippled over the wine-colored rug, making a
shadow on it as wind does on the sea.

The only completely stationary object in the room was an enormous couch on which two young women were buoyed up as though upon an anchored balloon.  They were both in white and their dresses were rippling and fluttering as if they had just been blown back in after a short flight around the house.  I must have stood for a few moments listening to the whip and snap of the curtains and the groan of a picture on the wall.  Then there was a boom as Tom Buchanan shut the rear windows and the caught wind died out about the room and the curtains and the rugs and the two young women ballooned slowly to the floor.

The entirety of the novel is contained in that scene: Daisy’s naiveté and cruel romanticism; Tom, powerful enough that his brutality doesn’t matter; and Nick, the bystander.  Even Gatsby achieves mysterious status.  A few paragraphs later we see Daisy gossiping about the butler, and we understand that in Daisy’s world, the unfortunates are to be mocked, possibly pitied, but never taken to be a peer in any sense.  Which brings us to Myrtle and the awful end in which Tom, not Gatsby, is unscathed. 

The law in Gatsby is subtle but there.  Jay Gatsby is supposedly a bootlegger and a friend of a notorious gangster.  We are led to believe that he accumulated his wealth this way, while Daisy and Tom were born to it.  So Jay should be the bad guy, right?  Tom, though, is the serial adulterer and abuser of women.  And Tom is ultimately a murderer because he tells George Wilson that Jay Gatsby had been driving the car that killed Myrtle Wilson.  Even this mechanism of homicide is derisive.  You just know that Tom manipulates poor George, a man who had been determinedly non-violent elsewhere in the book, into killing Jay.  Tom rids himself of the only real threat to his power in a sense by siccing George on Jay.  All of this is allowed to happen because the policemen investigating Myrtle’s death are completely incompetent.  Or perhaps it is just that the Toms and Daisies operate beyond the sphere within which law enforcement has any dominion.

So that’s my take on Gatsby.  Now for the movie. 

There have been several film versions.  One, a silent film, is lost to us.  Maybe it was good.  Another starring Betty Field and Alan Ladd plays like “Public Enemy” or possibly “Double Indemnity.”   And then the worst, as far as I am concerned, and also the most famous: the 1974 version with Robert Redford and Mia Farrow.  Allow me to don my snark hat for a moment.

Sam Waterston delivers a good performance as Nick.  I can’t accept Bruce Dern as Tom.  I frankly can’t accept Bruce Dern at all, because when I think of him I think of “Hush, Hush Sweet Charlotte” and then I want to stop thinking.  Redford was cast for his face and played the role like he knew that and didn’t much care.  And then there is Mia Farrow.  [Sigh.] 

Daisy is a difficult role to play without question.  The actress must be etherially lovely (and if we’re going for authenticity here, a brunette).  Personally I find Farrow’s face skull-like.  Maybe that’s unfair of me, but we cast movies based on looks all the time, and Daisy isn’t supposed to be a constant reminder of the futility of existence.   

Finally, the entire movie seems to have been filmed through cheesecloth.  It’s like watching a Barbara Walters interview.  All soft lighting and sunlit halos.  Fitzgerald was trying the expose the seaminess beneath the polished veneer, not hide it in swirls of linen and tulle. 

So.  The new movie currently in the works will be directed by Baz Luhrmann.  I loved “Strictly Ballroom” and “Moulin Rouge”, but am terrified that he will bring that approach to Gatsby.  Please, by all that is holy, no musical numbers. 

Leonardo DiCaprio has reportedly been cast as Jay, Tobey Maguire as Nick.  Carey Mulligan will play Daisy, a move that outraged many because she is English, but I suspect that this is payback for casting Renee Zellweger as Bridget Jones and we should all just keep calm and carry on.  I hope it is not the reason she cut her hair into a Rosemary’s Baby pixie, because if so she picked the wrong way to emulate Mia Farrow. 

Ok.  Snark hat off.  I hope they get it right with this, I really do.  If they do, watching the movie will be like connecting in person with some wonderful friends you have previously only corresponded with.  If they don’t, though, we’ll always have East Egg.

Oliver Wendell Holmes, Jr.’s The Common Law has fallen well out of favor.  Richard Posner and the Chicago school pretty much relegated it to the dustbin and I think that’s a shame.  Whatever side of the fence you’re on, you must admit that economics and law deal with individuals in markedly different ways.  When economic principles are invoked to influence behavior, they are invoked on behalf of whole classes of people: labor; the well to do; the “welfare class” (whatever that means); the middle class.  We don’t apply monetarism or game theory to Joe the Plumber.  (Sorry, I couldn’t resist that one.)  We apply those principles to huge clusters of individuals and concern ourselves little with the effect of a given policy on one person.

The law is not applied that way.  As a forward-thinking, behavior influencing set of principles it is helpful to think of the effect of laws on classes of people.  But the law is only partly forward-thinking.  Unlike economics, the law is inevitably called upon to decide the rightness or wrongness of acts which have already occurred.  Thinking of law in strictly economic terms, or for that matter, in terms of gender or race, is interesting but of no practical use in enforcing the social contract. 

Holmes was a leading American proponent of legal realism around the turn of the twentieth century.  The law at that time was being asked to accomodate a whole new set of social problems.  Railroads in particular made it necessary to craft new protections for workers and their families.  Accidents on the tracks influenced the development of contributory negligence principles, the notion of the “standard of care”, the existence of the duty to use due care, and causation.  Who doesn’t remember the fact pattern from Palsgraf?  Well, if you went to law school, anyway.  If you didn’t, you can read about it here:  http://en.wikipedia.org/wiki/Palsgraf_v._Long_Island_Railroad_Co.

You are wondering what any of this has to do with pearls.  I don’t blame you.  I am getting to that now.

Holmes the legal philospher and Supreme Court justice was the son of one Oliver Wendell Holmes, the doctor.   Dr. Holmes is remembered today as one of the Fireside Poets, a group which includes Henry Wadsworth Longfellow, John Greenleaf Whittier, and James Russell Lowell.   Dr. Holmes’ claim to fame is one poem and really one poem only.  It appears in most middle school or high school English textbooks and it is called The Chambered Nautilus.   

Like most poems of its time it is written in a pseudo-Classical style in regular meter and neatly rhyming lines.  The Fireside Poets are also called The Schoolroom Poets because their poems are well suited to memorization and recitation.  In other words, they are orderly.  There are no oddball near rhymes or rhythm shuffles to be worried about.  The reader or reciter can be assured that all will go well and that the appropriate applause will follow.   (How astonishing to consider that so few years separate Dr. Holmes and e.e. cummings!)

Dr. Holmes celebrates in his poem the “ship of pearl” that had “sail[ed] the unshadowed main” – nautili live in the deep waters of the South Pacific and Indian Oceans – and arrived at the shore only by reason of its death.  He considers that the nautilus, dead now, had built each chamber of the shell to live in as it grew, abandoning the smaller for the larger year by year.   Then he moves on to the “moral” portion of the poem so regrettably common to the Victorians and declares, famously: “Build thee more stately mansions, O my soul,/As the swift seasons roll!”  Dr. Holmes argues that the chambers of the shell represent intellectual and possibly spiritual levels of growth, to be discarded at death when no longer needed. 

And Justice Holmes seems to take a cue from his father in The Common Law:

The life of the law has not been logic; it has been experience…The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

The Common Law (1881) at 1. 

For Justice Holmes, the law was the ocean, an undulating thing to be inhabited rather than mastered.   Concepts should be taken up and applied as appropriate and for the common good, but discarded when no longer so.  He advocated for what you might call judicial restraint, although I think his concept would not be recognized by the Scalias of today.  Holmes believed that judges too often inserted their own vision for the approach favored by the general population; and in fairness to those who critique him, he authored the Buck v. Bell decision, finding constitutional a statute that permitted the forced sterilization of the mentally retarded.  (If any decision argues against the legitimacy of true judicial restraint, this is it; unfortunately there are others, Dred Scott among them). 

In my mind, though, Holmes’ saving grace, and the saving grace of his approach to law, was his willingness to be flexible in the interest of the common good.  No doubt this will draw fire.  Jurists like Scalia argue that inflexibility is the only way to ensure, if not justice, then at least rationality.  The rich man will be deprived of a right – or granted a privilege – no less and no more than the poor man.

In reality that rarely happens.  People like Mark Dreier evade justice for as long as they do because their connections and wealth buy them time.  Justice Holmes’  common law would demand more of Dreier and his ilk than from the guy selling papers on the street.  His plea to jurists and lawyers alike:   “Don’t be ‘consistent,’ but be simply true.” 

 

The great myth about the good old days – of law practice and in general – is that there were good old days at all. 

The media has of late been declaring Biglaw dead.  Downward pressure on the hourly rate is encouraging partners to depart for smaller firms.  Even white shoe firms are talking about alternative fee arrangements.  The notion that clients should not be billed for the time of inexperienced associates is understandably gaining some traction.  Firms have laid off and deferred associates, slashed summer programs, and cut back on hiring.  A vocal if disorganized bunch of law students and never-associates are grumbling online about the law school “scam.”    

But realistically nothing has changed.  That’s what I think when I read Edgar Lee Masters’ Spoon River Anthology

Masters was a prolific writer with novels, biographies, and plays under his belt, but he is best known for his collection of poems memorializing the residents of a fictional town.  Spoon River was set in Fulton County, Illinois, not far from where Masters spent most of his life practicing law.  For about five years – well before the Scopes or the Leopold and Loeb trials – Masters partnered with Clarence Darrow.  (Darrow himself, despite his reputation today as a hero of labor and the underdog, once represented a Chicago landlord in his effort to have a tenant committed to an insane asylum because she had not paid her rent.  Not really relevant, but an interesting fact.)  During this time, most biographies of Masters report simply that he “defended the poor.”

But as lawyers we know this means he probably collected very little money.  The two quarrelled; Darrow’s indictment for perjury and jury tampering didn’t help things (although Masters conducted depositions in Darrow’s defense.  See the transcript here: http://darrow.law.umn.edu/trials.php?tid=17 .)

Masters and Darrow parted ways and Masters formed his own firm.  During this time Masters began writing the poems that would become Spoon River Anthology

The poems were serialized before they were collected and published.  It’s not the sort of thing you read in a single sitting.  Although Masters befriended the likes of Carl Sandburg and Theodore Dreiser, his own poems, I think, reflect a wry lawyer’s pragmatism about the people he represented.  No modernism here.  The voices of Spoon River sound like the voices of the people who flow in and out of any law office, as clients or otherwise. 

Keep in mind that while Masters was practicing law and writing his poems, the Bolsheviks were seizing control of Russia, the Boer Wars were being fought in South Africa, Standard Oil was under antitrust scrutiny and unionized labor was transforming the American economy.  Women in the United States and Britain were demanding the right to vote.  The Constitution was amended to permit a federal income tax.  The Federal Reserve was created.  The Lusitania was sunk.

It was a time of unprecedented change.  But what concerned Masters in his poetry were people like “Jack McGuire”, who would have been lynched if his lawyer hadn’t struck a back room deal with a judge – http://spoonriveranthology.net/spoon/river/view/Jack_McGuire.  Or Lydia Puckett, whose spurned lover “stole the hogs and went to war” – http://spoonriveranthology.net/spoon/river/view/Lydia_Puckett.  Or Doctor Meyers, who went to prison for performing an illegal abortion –http://spoonriveranthology.net/spoon/river/view/Doctor_Meyers.  Personally, I imagine each of these characters sitting in a chair on the other side of Masters’ desk, although that probably isn’t fair to him as a writer. 

There are plenty of parallels in our modern world to the early twentieth century.  I like to think that Masters’ focus in the midst of all this social and economic turmoil was in the right place.  Lawyers have seen change before.  It comes in cycles.  We call it outsourcing or contract lawyering or what have you, but what matters now is what mattered to Masters: the relationship between lawyer and client, lawyer and lawyer, lawyer and community.  We bring boats to the sea change, we adapt, and we go on.