Writing about thinking about thinking about life, death, the law, and law-studentry

-- By MattBurke - 02 Mar 2015

1. In which the law and law-studentry are discussed

The law does not belong to the state: rather, it is the limit of the state. Where in the state is the law to be found?

First, in the casebooks, that is first-in-time: The law student finds the law first-in-time in the casebooks in the bleary hours of the night. Or, since the law student prefers the ritual of falling asleep with his wife to that of reading late into the night, he finds the law first-in-time in casebooks in the bleary hours of the morning. He learns, in a red book about Civil Procedure, that casebooks do not contain law, they contain “evidence of the law.” Swift v. Tyson.

So first in time might be the statutes, which are the law and not merely evidence. It might be worth ruminating a moment on the peculiarity of our way of learning, which starts most often, as you say, with the footprints rather than the animal that leaves them, which is the state whose apparent invisibility you are observing.

Second, the student recalls a trial, the boy who shot up the student’s high school. The student remembers his parents’ divorce proceedings and his great-grandmother’s will—the two silver bars devised to the student’s mother when the student was four years old. But those are not the law. They are alternating weekends, silver bars propping books, and a boy, who, when last I saw him, wore an orange jumpsuit, now a man.

Third, the student recalls a black-stone stele, carved in dead letters. The student notes the stele’s phallic shape.

Not enough. You almost say something, but whatever it is you need to say it more.

2. In which the law and law-studentry are applied to matters of life and death

This is connected with the fact that no part of our law is also a priori. Everything legal could be illegal. Everything we legislate at all could be otherwise. There is no order of things a priori.

First, the law student, for a class called “ConLaw,” reads a case about abortion. In a dissent, the law student reads:

The dissenter connects a decision about abortion to a decision about the citizenship of “the unhappy black race.” Since he was a slave, Mr. Dred Scott was not a citizen, and therefore he did not have “the privilege of suing in a court of the United States in the cases specified in the Constitution.” Dred Scott v. Sandford. Inspired by the austere logic, the law student re-imagines Casey:

The mother is, from the moment of conception, with a life. Conceive, from “com-,” intensive prefix, and “capere,” "to take.” The notion that one may be taken with something is incompatible with the notion that nothing has taken the one who has been taken. If something takes, that thing must have the ability to take. We rule that the ability to take constitutes life.

Life, even human life, is not synonymous with citizenship. For a citizen is one of the “people of the United States.” The life-in-the-mother, however, is not a person of the United States. It has not entered society. Before viability, it cannot so enter. While the State maintains an interest in potential life, and while the thing conceived within the mother is a life both actual and potential, the potential life in which the State maintains an interest must be cognizable to the State. Since the life-in-the-mother has not entered into society, since it cannot nor does it enjoy the benefits of that society, except as mitigated through the mother, it is not a life that is within society. The life-in-the-mother is not, in any meaningful way, in the United States. Prior to viability, the State does not have an interest in, or in the disposition of, the life-within-the-mother greater than that of the mother.

This is, not surprisingly, where you lost your terseness and skill in editing. Compress this, so that the Gettysburg address can be 30% as long as what you write. Nothing will suffer.

Seconds later, the law student explains his joke: Do the words about the picture obscure the picture of the man, or does the picture of the man illuminate the words about the picture?

Isn't it almost always a bad idea to explain a joke?

The figure-ground aspect of your illustration seems to me well-enough judged. But why make so much as a preliminary assumption that the sorrow of Roger Brooke Taney was either for the consequences of Scott v. Sandford or for the coming of the war? Perhaps it would be much easier on the facts to conclude that his sorrows were personal, that his passionate support of slavery was absolutely unabated, and that when war came he saw it not as a consequence of his life's work, but as the villainy of Lincoln. Even so relentlessly anti-personal a biographer as Carl Brent Swisher seems to me to leave us with that as a self-evident conclusion.

Put another way, neither the imaginary opinion nor the real one really explain what “a life” is.

But do you think that this fact, about these two texts, means that no text can really explain what for these purposes a "life" is?

Third, the law student’s professor exclaims: “That Wittgensteinian enough for ya?”

The answer is no. Most of what law professors say about Wittgenstein is largely the result of not thinking about what he thinks, or reading what he says, or knowing anything. Generally speaking, there's a good reason for that: they haven't tried. I have tried. See Zapf & Moglen, Linguistic Indeterminacy and the Rule of Law: On the Perils of Misunderstanding Wittgenstein, 84 Geo. L. Rev. 485 (1996). Chris Zapf, with whom I tried, was a student in this course when we began trying together.

And the law student recalls a biography about the Austrian in the trenches of the Eastern front, facing death and reading Tolstoy. The law student thinks the Austrian was a romantic at heart.

You might also be interested in a novel about this romantic, better than any biography, Bruce Duffy's The World as I Found It.

3. In which life and death are applied to the law and law-studentry

Thinking about thinking about the law and law-studentry is useful in this way: he who understands me easily recognizes these thoughts as senseless, when he has read through them, on them, over them.

First, Lincoln’s “Gettysburg Address,” dedicating a cemetery for some of those who died in Dread Scott’s “consequences for the Nation,” was 27% of the length of this writing. When he finished orating, Lincoln said: “That speech won’t scour,” as a plow baked in Illinois mud won’t scour.

He was right. But not every tool is a plow, and not everything we work with is a rail needing to be split. He knew that too. He was turning mud into marble, which requires what he brought to the task.

Today, Lincoln is in a vault buried 10 feet into the Illinois mud.

But he is also Father Abraham, the statue in our most beautiful and humane temple of democracy. He does not lie only in the mud of Illinois, but sits also on a chair of wisdom, ennobled by Daniel Chester French as he ennobled the men buried in the mud at Gettysburg, in mud turned marble by the endlessness of time, with elegance and power, as he deserves.

Second, the law student imagines the pile of words, words about life, death, the law, and law-studentry, he’ll write before he meets his mud. He hopes at least 27%—or 27% of 27%—of them are any good.

Third rate analysis of the analysis of first rate minds. That describes, thinks the law student, the practice, if not of law, then of law-studentry.

Except that not all the minds analyzed are first-rate?

I think you are intentionally wrong in saying this is a bad first draft. (Sorry, you will not get quite that much boost for improvement.)

You are right that the economy could be improved, mostly by shortening your imagined judicialism: you're right again that the conventional judicial style of the present has no respect for economy, but you cannot afford to imagine the error at your own expense. A. Lincoln possessed economy, as he possessed many other skills as a writer, in perfection. Nothing ever is harmed by imitating his effort to use only the necessary words.

Conceptually, your only weakness here is a need to explain the jokes, and also the serious parts. If you can present them without feeling the need to comment on them, they will scour. Well begun.