Professor Prufrock Revisited: Poetry and the Law
| Publication year | 2020 |
| Pages | 20 |
| Citation | Vol. 89 No. 4 Pg. 20 |
Professor Prufrock, Revisited:
Poetry And the Law[1]
Robert W. Parnacott
"Even as there are laws of poetry, so there is poetry in law." [2]
What does the practice of law have to do with poetry?[3]"Law is not typically viewed as being related to poetry."[4] It has been said: "[t]here is little poetry in a lawyer's life..."5 It is also said: "[i]n the bright light of day, the work of a lawyer seems to have absolutely nothing to do with that of the poet."[6] However, "[t]hough Mr. Justice Holmes properly said the law is not the place for the poet, there are affinities between the lawyer and the poet not visible to the undiscerning eye."7 Others have said: "[l]aw and poetry have a curious but intriguing relationship with one another."8 Jacob Grimm, who while perhaps better known as a compiler of fairy tales, also a philosopher of jurisprudence, commented: ""˜poetry and law have risen from the same bed.'"[9] Early law was often expressed poetically.[10] One commentator notes that historical roots of legal writing may have arisen out of the oral tradition which allowed easier memorization and recitation.[11] A variety of schools of thought in jurisprudence coalesce "around the idea that lawyers and judges are or should be more like poets, storytellers and interpreters rather than like scientists or engineers."[12]
The primary benefit for the lawyer to read or write poetry is that it can improve the lawyer's ability to read and write in general. Judge Richard Posner wrote: "[t]o be a good lawyer one must be a careful and resourceful reader, and immersion in poetry and other difficult imaginative literature is therefore not the worst preparation for the study and practice of law."[13] Bryan Garner, in his book on legal writing style, notes Lord Macmillan's observation: ""˜no advocate can be a great pleader who has not a sense of literary form and whose mind is not stored with the treasures of our great literary inheritance...'"[14] Reading outside the law, whether it be nonfiction, fiction, drama, or poetry, is recommended to benefit the lawyer's ability to read, think, and write in their practice: "[g]o, then, and read-in the law and out."[15] | Professor Harold Bloom, from a non-legal perspective, said: "[i]t matters, if individuals are to retain any capacity to form their own judgments and opinions, that they continue to read for themselves."[16]
After a brief review of law as literature, as well as law and literature, this article will focus on two primary topics: comparing the writing of poetry and the writing of legal materials and then comparing the reading and search for meaning in poems and legal texts. The article will then address examples of judicial opinions that use poetry to make points, followed by examples of poems touching either directly or indirectly on the practice of law. The article will continue with mention of attorneys (including Kansas attorneys) who are also poets of varying degrees of renown, and then finish with some related matters. For those so interested, a list of further reading suggestions will be provided at the end of the article. But, as Professor Prufrock says: "[o]h do not ask "˜what is it?' / Let us go and make our visit."[17]
Law as Literature, Law and Literature
Many legal commentators consider legal writing to be literature.[18] Literary both in the broader sense regarding our written output, but also in the more particular sense legal writing can "acquaint us with the forces which motivate [people] and the place of [people] in society."[19] Often, lawyers and judges are at their core "storytellers."[20] Justice Ruth Bader Ginsburg also considers our calling as literary.[21] Another commentator has said: "[legislation is a form of literary composition."[22] Professor James Boyd White opined that: "law can be regarded as an imaginative activity and its art a literary one ..."[23] It has also been said that "like storytelling, appellate advocacy is an art form."[24] Professor William Prosser found law to be one of the "principal literary professions."[25] However, Justice Felix Frankfurter believed: ""˜[l]aw as literature is restrained by responsibility.'"[26] Justice Benjamin Cardozo noted: "I am told at times by friends that a judicial opinion has no business to be literature."[27]
Law and Literature is a discipline which seeks to view law through the prism of literature.[28] Law and Literature came under fire in the late 1980s with Judge Posner's criticism in the first edition of Law and Literature: A Misunderstood Relation. Therein, Judge Posner, among other points, noted that many of the literary critics writing about law lacked legal training and many of the legal commentators writing about literature lacked sufficient background in literature.[29]Professor White, a contemporary reviewing that first edition, pushed back, however, against Judge Posner's position: "[b]ut in another sense I agree with virtually nothing that is said" in Posner's book.[30] Judge Posner later walked back from this criticism in later editions of his work.[31] Modern examination of this relationship can be traced to the 1960s.[32] However, the genesis of this movement may be traced to an essay by Justice Benjamin Cardozo published in the 1920s.[33] Writers in the Law and Literature movement more often focus on prose literary works, such as novels, short stories, and plays, rather than poetry. It is certainly easier to compare the functions of legal writing, i.e. opinions or briefs, to the usual arts of storytelling, e.g. plays and fiction, whether novels or short stories. Law as subject of the novel or play yields a rich and varied field to draw from, ranging from Shakespeare to Dickens to Grisham with so many stops in between. There are, of course, poems that tell a story, sometimes in great detail and length.[34] And there are poems, as noted later in this article, that address law and legal issues.
Writing Poetry and Writing in the Law
In Bryan Garner's interviews of Chief Justice John Roberts and Justice Anthony Kennedy, both Justices noted that a writer can develop through increased reading, with Kennedy advocating for more reading of literary works in particular.[35]No matter how long one has practiced law, it is always helpful to stop and think; take a break; refresh; focus on what is good legal writing. Good writing, whether law or on other subjects, share certain common attributes: "[g]ood writing is . . . good writing. It does not matter whether it is a newspaper story, a novel, a song, or a legal memorandum...."[36] As Judge Jerry Elliott would often say to this author, there are generally two things wrong with legal writing: style and substance. For writing in general, Jonathan Swift's observation was style is the ""˜proper word in proper places.'"[37] Similarly, poetry is described as "the best words in their best order."[38]
Judge Thomas Marten noted "[g]ood writing is . . . knowing and following the rules (or violating them deliberately and with a purpose)...."[39] All writers must work with the same general rules.[40] For those interested in further exploring the rules of poetry writing, particularly as to form, I would recommend Miller Williams Patterns of Poetry: An Encyclopedia of Forms (1986). As an example, the type of poem known as a sestina has very specific rules. It is thirty-nine lines, broken into six stanzas of six lines and a concluding stanza of three lines.[41] The degree of difficulty is increased by requiring that the same six words be used for ending each line in each stanza, in a rotating order, and then all six words must appear in the final segment, three used to end a line and then the remaining three included somewhere in the three ending lines.[42]
Be clear and precise in writing.[43] "The language of good poetry" is both "active" and "exact."[44] So, too, with legal writing.[45] Garner provides the example of the precise distinction between masterly and masterful.[46] The former he notes indicates the person is acting as a master, the latter relates to a person acting in a "domineering" manner. Mark Twain said "[t]he difference between the right word and the almost right word . . . is the difference between lightning and the lightning bug."[47] In writing poetry, as in legal writing, it is better to avoid general statements when concrete facts can be used.[48]"Good writing tends to present evidence."[49] "Show, don't tell" is a mantra for both poets and legal writers.[50] Avoid wordiness.[51] Strike out pomposity, jargon, and doubling or tripling up word combinations such as "due and payable" where due works just fine.[52] Professor White says: "[t]he proper poem formed a complex and organic whole in which all parts belonged, nothing was missing, and everything counted some-how..."[53] Judge Irving Kaufman, former Chief Judge of the Second Circuit, in comparing writing poetry to appellate briefing, noted Edgar Allen Poe's advice to aspiring poets: "a poem should be so disciplined that every word, every sound, led to a single, predetermined effect."[54]
Brevity, of course, should be highly prized. The shortest judicial opinion award likely goes to Chief Justice John Marshall, who once wrote an opinion that only said: "The United States never pays costs."[55] The shortest poem may be Lines on the Antiquity of Microbes, by Strickland Gillian: "Adam / Had "˜em."[56] A bit longer, but still pretty short and to the point, from Robert Frost, The Span of Life: "The old dog barks backward without getting up. / I can remember when he was a pup."[57]
Poets, and legal writers can be "like a Sherlock Holmes, assembling a phalanx of data from which to draw [an] editorial conclusion."[58] "[T]he form of a poem, the plot of a poem, the argument of a poem, the narrative of a poem-would correspond...
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