Convictions: Slate's blog on legal issues

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First by picking up the gauntlet I'd thrown down, and then by arguing that President George W. Bush is the most Shakespearean of The 43, Kenji's made 2 immeasurable contributions to this month's Convictions Poetry Slam.

 

I tend to agree with Kenji that the overt mixing of poetry and law can be ill-advised: adding the former often will not enhance analysis in the latter.  Yet the deployment of poetry – or any literary reference, for that matter –  serves to reveal something about the legal writer who deploys it.  Justice Harry A. Blackmun's homage to Casey at the Bat, no less than Chief Justice William H. Rehnquist's tribute to Barbara Frietchie in the 1st flag-burning case, told much about each author's approach to the subject matter at bar.  Some observers may not welcome what is revealed; these 2 examples, for instance, might be seen as evidence that a Justice lacked detachment and thus engaged in less than rational reasoning.  (That conclusion is not inevitable – consider those studies that refute the commonly held assumption that emotion clouds jurors' judgment.)  Adding literature to law may serve, moreover, to make more humanly accessible a process seldom understood by those humans whom it most affects.

 

Kenji's right, too, that the best law poetry may be those lines that we commit to memory not because of some intentionally catchy cadence, but rather because their simplicity belies a deeper social meaning.  The warnings set forth in Miranda v. Arizona surely qualify.  Another nominee jumps to mind.  It is the essence of another opinion by Chief Justice Earl Warren, a line on which Brown v. Board of Education and all its progeny depend.  If I may be indulged a bit of verse, it is:

 

 

As for W., the verbal contributions that Kenji cites link this President with another W. besides Shakespeare.  To this ear, the inestimable "misunderestimate" inevitably recalls "normalcy," the once-abnormal word for which America owes a debt to President Warren G. Harding.

 

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With the White Sox on a three-game win streak and tied for first in their division, seems as good a time as any to play inning No. 3 of Convictions Poetry Slam.

Today's Poetry Month nominee represents the most straightforward of the Slam's categories: No. 1, "use of poetry in legal writing, by judges, lawyers, or legal scholars."  Waxing poetic is the late Supreme Court Justice Harry A. Blackmun, a lifelong National League fan. Blackmun's 1972 pæan to baseball, Flood v. Kuhn, included a famous footnote 4:

Millions have known and enjoyed baseball. One writer knowledgeable in the field of sports almost assumed that everyone did until, one day, he discovered otherwise:
"I knew a cove who'd never heard of Washington and Lee,"
"Of Caesar and Napoleon from the ancient jamboree,"
"But, bli'me, there are queerer things than anything like that,"
"For here's a cove who never heard of 'Casey at the Bat'!"
"* * * *"
"Ten million never heard of Keats, or Shelley, Burns or Poe;"
"But they know 'the air was shattered by the force of Casey's blow';"
"They never heard of Shakespeare, nor of Dickens, like as not,"
"But they know the somber drama from old Mudville's haunted lot."
"He never heard of Casey! Am I dreaming? Is it true?"
"Is fame but windblown ashes when the summer day is through?"
"Does greatness fade so quickly and is grandeur doomed to die"
"That bloomed in early morning, ere the dusk rides down the sky?"
—"He Never Heard of Casey" Grantland Rice, The Sportlight, New York Herald Tribune, June 1, 1926, p. 23.

Blackmun's equally famous Footnote 5 continued in-verse, quoting the "Tinkers to Evers to Chance" refrain from Franklin Pierce Adams' "Baseball's Sad Lexicon."

In all, a boldly boyish use of poetry in legal reasoning.

To the rest of the Convictions team and all those in our virtual stands: Batter Up.