Monday, May 05, 2014

Taming Chaos

         I was reading some U.S. Supreme Court opinions the other day (an occupational hazard).  Oddly enough, I began thinking about chaos.  Funny how one endeavor can prompt one to think of something completely unrelated.  On second thought, my first thought may be an example of just the opposite. 
         But whatever one thinks about the merit of any judicial opinion, or lawyer's brief, for that matter, the enterprise involves the same goal ‑‑ bringing order out of chaos. 
         A lawyer I knew, who passed away several years ago, was a workaholic who wrote briefs that sparkled with clarity.  Even when the law was against him and the mélange of facts fought against the creation of a coherent narrative, he could write a brief that was lucid and compelled the reader to seriously think about the merits of his argument.  He expressed regret that the law was so demanding that he could not devote enough time to appreciate the arts.  I am not sure he was aware of it, but it occurred to me that he was in fact an artist. 
         This revelation came to me during a three-hour lunch I had with two premier lawyers who are also award-winning photographers, Irving Greines and Eric Lawton. 
         Greines is a well known and leading appellate specialist.  His photographic work has been exhibited in shows and is held in permanent collections in museums, galleries and universities throughout the U.S.  He has been published in leading photographic journals and magazines.
         Lawton is a seasoned litigator who represents businesses and individuals in the resolution of complex civil litigation.  His work has been exhibited in galleries, private, and public collections throughout the U.S., Asia and Europe, that include the New York Public Library and the Bibliothѐque Nationale in Paris.  His books of photographs include The Soul of the World (Harper Collins) and The Soul Aflame (Conari Press).
It may not seem obvious at first glance, but the compelling artistic works of Greines and Lawton share some of the attributes one finds in the work of the lawyer who produces a persuasive brief or argument.  But of course little is obvious at first glance.  One has to quiet the mind and look deeply into the circumstances that precede the inspiration and labor that go into the creation of the work.
          Lawyers and judges must create a reasoned and coherent construct out of chaos.  Yes, lawyers have been known to create chaos.  And the same can be said of judges now and then.  (Readers at their discretion may eliminate "now and then" and are free to refer back to the first paragraph of this column.)  In most cases our critical faculties lead us to recognize that the task of lawyers, judges and artists is often the same:  to guide us through the world's bewildering maelstrom.
I have argued in the past that certainty and predictability, the objectives we strive to achieve in the legal profession, are mostly illusory. We do our best to bring meaning and predictability to the law, but the different perspectives we see in judicial opinions belie such notions. 
In large part we humans create chaos.  Just ask Blaise Pascal, the 17th century French mathematician and philosopher.  In his Lettres Provinciales, he says, "What a chimera then is man!  What a novelty!  What a monster, what a chaos, what a contradiction, what a prodigy!  Judge of all things, feeble earthworm, depository of truth, a sink of uncertainty and error, the glory and the shame of the universe."
         No need to be depressed about this deplorable state of things.  It is simply the way things are.  In fact, this chaos is the spur to human excellence, to artistic creation.  Henry Adams, in his eponymous work, The Education of Henry Adams, said, "Chaos often breeds life, when order breeds habit."  I think that means chaos is good.  Something creative comes out of it. 
         One of Greines' first shows, which I attended, was provocatively entitled "Chaos Transformed," a goal both artists and lawyers strive to achieve.  Greines and Lawton pick out of a mass of information that which is necessary to make their visual statement.  The task is similar to the lawyer who must consider a hodgepodge of facts, and other information, including statutes and case law and make sense of it all.  It is an undertaking that transforms chaos into a "creation" that will produce clarity or insight for the reader or viewer.  Lawton notes the parallel between law and his art:  "Be it a legal problem or a visual subject, I'm presented with a world in chaos."  Whether it be the "art of law" or the "art of photography," Lawton looks to "discern the underlying theme ‑‑ to find the story and express it in a clear, compelling way."
Of course there are differences between the brief writer and the photographer.  Photographic art often presents a challenge to the viewer who must thoughtfully consider and ponder its significance.  Different viewers can derive insights different from one another and from the artist.  The brief writer, on the other hand, strives for a common understanding for all readers.  Yet, both lawyers and artists create in their own special way a sense of order and meaning.  Lawton approaches his work from all angles and senses when he can trust his judgment to capture the scene and the "elegance of simplicity." 
Greines finds beauty in blighted areas that people avoid, or walk though quickly.  He confines his photographs within a "defined space" so that the viewer can focus on the subject and find its own particular beauty. The good artist and the good lawyer often find gems in unexpected places.  In his appellate practice, Greines takes a similar approach.  He arranges facts and legal principles in a brief that will attract the reader.
Artists and lawyers helped create civilization.  Many in the public criticized the legal profession because so many lawyers were involved in the Watergate scandal.  Yet it was lawyers who brought the miscreants to justice.  The oft-repeated quote from Shakespeare's Henry VI, Part II, "First thing we do, let's kill all the lawyers," is not an indictment of lawyers.  It is a call from a butcher in a mob of angry citizens to overthrow the government and create havoc, disorder and chaos.  This call for anarchy is a tacit recognition that our legal institutions and its lawyers are necessary to preserve an ordered society.  No wonder the bailiff calls for "order in the court."
         I cannot even try to do justice (pardon the expression) to the body of work produced by Greines and Lawton by describing particular photos.  Nor could I do the same with a well-crafted brief or judicial opinion.  The unique vision that Greines and Lawton express in their photography compels the viewer to do more than merely look, but to think and participate in an act of creation.  Check out their work at their respective websites:;;  Think about what they say in their work.  And I guarantee you will write a better brief and of course be a better lawyer.
         Artists like Greines and Lawton challenge our way of thinking and take us into unexplored areas to find meaning in a chaotic world.  So do lawyers.  Look and you shall see.  The effort to make sense of a disordered world makes us all artists.  We may not always achieve it, but we can meet Pascal's challenge and be the depository of truth and "the glory," not the shame, "of the universe."

Cry Me A River

         "No matter whether th’ Constitution follows th’ flag or not, th’ Supreme Court follows th’ iliction returns."  So said Mr. Dooley at the turn of the 19th century.  Or to be more exact, so said columnist Finley Peter Dunne, who voiced this unflattering assessment through his fictional character Mr. Dooley, an unschooled, but astute, Irish immigrant. 
         Mr. Dooley’s comment implies that the Supreme Court’s opinions are influenced by public opinion instead of the Constitution.  Mr. Dooley may have it wrong.  Take, for example, Citizens United v. Federal Election Commission, 558 U.S. 310 (2010).  Citizens United holds that restrictions on a corporation’s independent political expenditures are unconstitutional as a violation of their First Amendment right of speech.  And McCutcheon v. Federal Election Commission [2014 U.S. Lexis 2391], decided five days ago, strikes down provisions of the Federal Election Campaign Act that limit the total amount of contributions individuals may contribute to candidates and political parties.  This ruling also is based on the First Amendment right, according to the Chief Justice, "to participate in electing our political leaders." 
Cynics might argue these cases prove Mr. Dooley’s point.  Citizens United and McCutcheon are certainly about election returns.  But rather than reflecting on a judge’s reading of past election returns, these astonishing cases help ensure the outcome of future election returns.  If he were around today, I wonder whether Mr. Dooley would argue that this proves his point.  I do not speculate about the justices' subconscious psychological motivation, nor do I question their integrity.  I question their reasoning.
         We can argue about the rationale that underlies these decisions, but we have a good idea of what they permit or disallow.  Nevertheless future cases decide the scope of most judicial decisions.  And this proves that language is elusive.  We can hook onto a holding or a promising phrase, but it struggles to be free and slithers and slides from our grasp.  Lawyers and professors analyze and conjecture how holdings will affect future conduct.  Perhaps that is why so many judicial opinions are lengthy.  They often contain language that qualifies, illustrates, or compares.  This is symptomatic of our relentless search for the ever unreachable goal of certainty.
         A good friend of my wife and me, Rona Goldfarb, helped me shake off the unsettling effect Citizens United and McCutcheon had on me.  It happened as I was reading the newspaper the other day.  Some people still do that.  There were no election returns this time of the year to influence me, but I wondered aloud in rhyme, "How do we frame what happened in Ukraine?"
Rona who has an extraordinary talent to capture issues in hilarious, pithy phrases replied, "Crimea a river."  I think the great lyricist and songwriter Arthur Hamilton, who wrote the hit tune "Cry Me a River," would approve.  He has a subtle and ironic sense of humor.  Who else could have written, "You told me love was too plebian, Told me you were through with me and .…"?  Please do not confuse this song with the one also titled "Cry Me a River" by Justin Timberlake.  His pedestrian lyrics were written purportedly over his breakup with Britney Spears.  No wonder.
         "In the beginning was the Word.…"  St. John, 1:1.  Whether one takes what is written in the Bible literally, or as metaphor, words, whether of a supreme being or a flawed mortal, are of supreme importance.  They reflect our humor, intellect, and integrity.  They should be used with care however trivial or crucial the context.
         I was interviewed on a radio show and the interviewer thanked me for speaking with him.  I caught myself as I was about to say what I heard other interviewees say countless times, "Thanks for having me."  Yes, I know that phrase means something like "thanks for inviting me to be on the show."  It doesn’t mean you have been had and are happy about it.  Instead, at the last moment, I came up with a novel response, "You’re welcome."
         Someone was speaking at a memorial about a close friend who had passed away.  In the middle of his remarks, he choked up and wept.  He collected himself and said, "Sorry, I lost it."  No one minded, but I thought to myself, "What did he lose?" ‑‑perhaps his composure, but he gained or at least displayed his humanity and sensitivity.
         What about the expression "if and when"?  "If" means I may do it, I may not do it.  But "when" tantalizes by creating an expectation that you will do it.
         Of course a crystal clear clarity, however elusive, is not always called for.  My brilliant research attorney Lauren Nelson showed me some writing examples provided by the editors of The American Scholar, the magazine of the Phi Beta Kappa Society.  By the way, I was not asked to join the society. It had something to do with grades.  The editors recently published what they considered the ten best sentences.  Here are a few.
James Joyce, A Portrait of the Artist as a Young Man.  "I go to encounter for the millionth time the reality of experience and to forge in the smithy of my soul the uncreated conscience of my race."
         Toni Morrison, Sula, "It was a fine cry - loud and long - but it had no bottom and it had no top, just circles and circles of sorrow."  
         Ernest Hemingway, A Farewell to Arms, "Anger was washed away in the river along with any obligation."
         I grant you the type of creative writing one finds in fiction or poetry rarely belongs in a judicial opinion.  These sentences are no less masterful because they are subject to interpretation and of course must be read in context. 
         But even in judicial opinions, it is hard to nail down a clear meaning even when it seems clear.  Justice Felix Frankfurter remarked in United States v. Witkovich, 353 U.S. 194, 199 (1957), "[O]nce the tyranny of literalness is rejected, all relevant considerations for giving a rational content to the words become operative."
         Yet, despite the problematic and indeterminate nature of words, as I remarked earlier, we can discern with a high degree of certainty the meaning of Citizens United and McCutcheon.  And I want to cry me a river. 

A Tree Falls

You don't tow the line unless you work for the Auto Club, or on a fishing boat.  On numerous occasions, I have stubbed my toe, in fact and metaphorically.  And that in turn has induced me to toe the line or at least to strive to toe the line when speaking or writing.  Those of us who use words (that is, all of us) should be careful how we use them.  I am talking about words that are spoken or written for consideration by others.  This is to be distinguished from words spoken when one is alone in the forest.  The philosophical ramifications of such a phenomenon I leave to those few college sophomores who are not business majors.  But words spoken to others may include animals, most likely a dog.  Cats are another story.  "Here kitty, kitty" seldom works unless the feline in question is hungry. But words communicated to human beings should be clear and precise to ensure the listener understands what the speaker is writing or saying. 
         In my last column titled "The Devil Made Me Do It," I discussed in the concluding paragraphs the use of language in United States v. Windsor (2013) 133 S.Ct. 2675.  Windsor held that the federal Defense of Marriage Act (DOMA), which defines marriage as a legal union only between a man and woman, is unconstitutional.  In Justice Antonin Scalia's dissent, he wrote of the majority's "legalistic argle-bargle."  (p. 2709.)
         If the reader does not know the meaning of argle-bargle (you may include me within this class), it does mean something.  Ben Zimmer's writes in his Language Log (Blog) … hmmm, log-blog, argle-bargle, sorry for the interruption ...  Zimmer writes that argle-bargle is of Scottish origin and means a "verbal dispute" or a "wrangling" argument. 
         Thanks, Ben, but I had to look up "wrangle," although a good guess gave me the meaning:  "to dispute angrily."  See Webster's New Collegiate Dictionary or any other dictionary.  A wrangler is "a bickering disputant," but also a "ranch hand who takes care of saddle-horses."  That job could make anyone prone to angry disputes.  But keep in mind that Wrangel with a capital "W" is a Russian island off the coast of Siberia.  I imagine that those living on Wrangel would be prone to wrangle.
         But getting back to Justice Scalia's dissent, quite apart from whether one agrees or disagrees with it, his esoteric "rhyming reduplication" was effective in getting our attention despite our having to run to a dictionary or blog to determine its meaning.  But as a rule, simplicity and brevity are the best guide posts.
         I characterized Justice Scalia's argle-bargle as brummagem.  What, I wondered aloud, would induce me to express such a thought in a publication of the stature of the Daily Journal?  I speculated the Devil made me do it.  Several readers asked me how the Devil got into the act.  Beats me.  But maybe I was influenced by Justice Scalia's interview in New York Magazine following the Windsor opinion.  Justice Scalia said, "I even believe in the Devil."  He acknowledged that these days the Devil does not often possess people but does get "people not to believe in him or God."  Heretofore (love that word, but do not recommend it), I had my doubts about the existence of the Devil.  But after writing (a more permanent mode of expression than speaking) brummagem, I could indeed have been possessed by the Devil, even though "that doesn't happen very much anymore." 
         But when Justice Scalia speaks or writes, there is no doubt about what he is saying or what he wishes his audience to understand.  And he vigorously supports our right to disagree. 
         The other day I shared with a colleague my analysis about a work of literature.  Perhaps my enthusiasm or certainty about the meaning of the work prompted him to remark, "That's your opinion" (emphasis on "your").  Of course it is.  I asked, "Does that mean it is not valid?"  "No, not necessarily," he replied, "But … however thoughtful, it is just your opinion."  The "just" did not sit well with me. 
         I replied that I could say the same about the judicial opinions he authored.  I pointed out that they are called "opinions."  I left out the "just."  The question to ask, I argued, was simply, "Does the opinion cohere; does it make sense; does the reader understand the argument; is it persuasive?"  Because he did not come up with a better literary analysis than the one I offered, I took that to mean he thought my analysis was persuasive even though it was "just" my analysis.
         In an article in The New York Times by Nicholas Kristof, titled "Professors, We Need You" (Feb. 15), the writer laments "that Ph.D. programs have fostered a culture that glorifies arcane unintelligibility while disdaining impact and audience."  Kristof goes on to state, "[A]cademics seeking tenure must encode their insights into turgid prose.  As a double protection against public consumption, this gobbledygook is then sometimes hidden in obscure journals — or published by university presses whose reputations for soporifics keep readers at a distance." 
         We must guard against writing opinions or briefs that suffer from these infirmities.  We do write for public consumption, and should we fail to write with clarity, we could be as off-putting as the professors Kristof writes about.  This, in turn, diminishes the public's respect for the judiciary and the legal profession. 
         To repeat what has been said countless times over the years, the best model of clarity can be found in Palsgraf v. Long Island RR.Co. 248 N.Y. 339 (1928).  Justice Benjamin Cardozo set out the facts without one excess word:
         "Plaintiff was standing on a platform of defendant's railroad after buying a ticket to go to Rockaway Beach.  A train stopped at the station, bound for another place.  Two men ran forward to catch it.  One of the men reached the platform of the car without mishap, though the train was already moving.  The other man, carrying a package, jumped aboard the car, but seemed unsteady as if about to fall.  A guard on the car, who had held the door open, reached forward to help him in, and another guard on the platform pushed him from behind.  In this act, the package was dislodged, and fell upon the rails.  It was a package of small size, about fifteen inches long, and was covered by a newspaper.  In fact it contained fireworks, but there was nothing in its appearance to give notice of its contents.  The fireworks when they fell exploded.  The shock of the explosion threw down some scales at the other end of the platform, many feet away.  The scales struck the plaintiff, causing injuries for which she sues."  (pp. 340-341.)
         William Zinsser tells us that "Writing is thinking on paper."  But the final product reflects thoughts that have crystallized after numerous drafts. 
         And Einstein (when you are that famous, you don't need a first name) is attributed to have said:  "Good writing comes from clear thinking.  Clear thinking comes from clear understanding.  If you can't explain something simply (and clearly), you don't understand it well."  I would add that you may not understand it at all.  And if that is the case, you are talking in the forest without anyone there to listen.  And if a tree falls on you, there will be no one there to hear it fall, or to save you.  Postscript:  I still don't understand the theory of relativity.