The Council of Nicea and other jokes » « Here comes the sexism, WTF, people?

The law can be dry, does that mean that lawyers are anti-poets?

This question came up in response to a new Elon Musk tweet that asserted, “Laws are on one side, poets on the other.” I think that it’s wrongheaded and under appreciates what lawyerly skill entails.

The best lawyers are often poetic (even if it doesn’t seem that way in certain filings/statements), since skill with the law requires keeping multiple possible meanings in your head at the same time. Just writing a contract requires something that may look like anti-poetry, but the reason is that the drafting lawyer is going through the process of anticipating possible alternative meanings and excluding them.

Poets, too, have to anticipate possible alternative meanings, though they only exclude the ones that disrupt their intent and deliberately import those ambiguous, multiple-meaning phrases that enhance their intent. Likewise, when the lawyer isn’t drafting something precisely, but rather finding the advantage in something already written (often a statute, but it could be a contract previously drafted), it’s to the client’s great advantage for the lawyer to see multiple meanings in single phrases and craft an argument that employs the most favorable meanings rather than the most obvious ones.

Skill with puns and poetry is correlated with skill in the law. If you’ve got puns, poetry, and logic all down, you’ll probably be great.

The Council of Nicea and other jokes » « Here comes the sexism, WTF, people?

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  3. says

    @Great American Satan:
    Writing for the Supreme Court of Canada, former Chief Justice Beverly McLachlin is the most poetic of the justices with which I’m familiar, including nicely turned phrases in every dissent and decision. (Though I should point out that it’s much easier to be poetic in a dissent.) A good example of her in dissent is Rodriguez v British Columbia (AG).

    This brings us to the critical issue in the case. Does the fact that the legal regime which regulates suicide denies to Sue Rodriguez the right to commit suicide because of her physical incapacity, render the scheme arbitrary and hence in violation of s. 7? Under the scheme Parliament has set up, the physically able person is legally allowed to end his or her life; he or she cannot be criminally penalized for attempting or committing suicide. But the person who is physically unable to accomplish the act is not similarly allowed to end her life. This is the effect of s. 241(b) of the Criminal Code, which criminalizes the act of assisting a person to commit suicide and which may render the person who desires to commit suicide a conspirator to that crime. Assuming without deciding that Parliament could criminalize all suicides, whether assisted or not, does the fact that suicide is not criminal make the criminalization of all assistance in suicide arbitrary?

    My colleague Sopinka J. has noted that the decriminalization of suicide reflects Parliament’s decision that the matter is best left to sciences outside the law. He suggests that it does not reveal any consensus that the autonomy interest of those who wish to end their lives is paramount to a state interest in protecting life. I agree. But this conclusion begs the question. What is the difference between suicide and assisted suicide that justifies making the one lawful and the other a crime, that justifies allowing some this choice, while denying it to others?

    The answer to this question depends on whether the denial to Sue Rodriguez of what is available to others can be justified. It is argued that the denial to Sue Rodriguez of the capacity to treat her body in a way available to the physically able is justified because to permit assisted suicide will open the doors, if not the floodgates, to the killing of disabled persons who may not truly consent to death. The argument is essentially this. There may be no reason on the facts of Sue Rodriguez’s case for denying to her the choice to end her life, a choice that those physically able have available to them. Nevertheless, she must be denied that choice because of the danger that other people may wrongfully abuse the power they have over the weak and ill, and may end the lives of these persons against their consent. Thus, Sue Rodriguez is asked to bear the burden of the chance that other people in other situations may act criminally to kill others or improperly sway them to suicide. She is asked to serve as a scapegoat.

    It’s not inappropriate to note that her opinion won in the end when Rodriguez was later overturned in Carter.

    Of the other recent Justices on the SCC, Claire L’Heureux-Dubé is probably the most poetic, and she can be a joy to read. It should be noted, though, that no decision is truly poetic throughout: the form of a judicial decision requires citations and other writing that interrupts the flow. The most poetic you’ll ever find a lawyer is likely in closing arguments. In criminal cases the prosecution generally shies away from poetry in their oratory as it’s considered “unseemly” to invoke wordplay in so serious a matter as taking away someone’s freedom. Defense lawyers don’t seem to be bound by this (at least not to the same extent) but public defenders often simply don’t have the time to craft a closing argument so carefully. If you want the most poetic writing or oratory you can find from a lawyer, then, what you look for are closing arguments on behalf of an underdog plaintiff in a civil case or a defendant in a criminal case. Unfortunately those trial court transcripts are harder to sift than one would like. It’s much easier to remember half a phrase from a supreme court decision and find that again than it is to remember half a phrase from a defense lawyer’s closing argument and find a particular trial court action.

    So let’s stick with appellate decisions when moving to the USA. I consider Kagan the most poetic of the current US justices, though (and, yes, it gags me to say it) Clarence Thomas can muster a poetic turn of phrase now and again. Scalia was pretty good in his day, and Sotomayor is good enough that some find her a better writer than Kagan, but it’s Kagan for me overall in the written form (while Sotomayor would get the nod from me in oral rhetoric and persuasiveness).

    As an example, consider Kimble v. Marvel Entertainment. Kimble invented a back-of-the-action-figure push button which Marvel wanted to use for its Spider Man toys way back when. They signed a contract to give Kimble royalties on its patent, but then after the fact Marvel discovered that patents have a 20 year lifetime (at least these patents and most patents in the US…there are exceptions in other categories). Marvel wanted to quit paying royalties since the patent had expired, sued, won a judgement entitling them to stop payments, and Kimble then appealed to SCOTUS:

    Indeed, stare decisis has consequence only to the extent it sustains incorrect decisions; correct judgments have no need for that principle to prop them up. Accordingly, an argument that we got something wrong—even a good argument to that effect—cannot by itself justify scrapping settled precedent. Or otherwise said, it is not alone sufficient that we would decide a case differently now than we did then. To reverse course, we require as well what we have termed a “special justification”—over and above the belief “that the precedent was wrongly decided.”
    In Scott Paper Co. v. Marcalus Mfg. Co., 326 U. S. 249 (1945) , for example, we determined that a manufacturer could not agree to refrain from challenging a patent’s validity. Allowing even a single com-pany to restrict its use of an expired or invalid patent, we explained, “would deprive . . . the consuming public of the advantage to be derived” from free exploitation of the discovery. Id., at 256. And to permit such a result, whether or not authorized “by express contract,” would impermissibly undermine the patent laws. …
    Brulotte was brewed in the same barrel. There, an inventor licensed his patented hop-picking machine to farmers in exchange for royalties from hop crops harvested both before and after his patents’ expiration dates. The Court (by an 8-1 vote) held the agreement unenforceable…
    [S]tare decisis carries enhanced force when a decision, like Brulotte, interprets a statute. Then, unlike in a constitutional case, critics of our ruling can take their objections across the street, and Congress can correct any mistake it sees. … Congress has spurned multiple opportunities to reverse Brulotte—openings as frequent and clear as this Court ever sees. …
    As against this superpowered form of stare decisis, we would need a superspecial justification to warrant reversing Brulotte.

    Fry vs. Napoleon Community Schools is another decision that incorporates some poetic phrases.

    The Court of Appeals did not undertake the analysis we have just set forward. As noted above, it asked whether E. F.’s injuries were, broadly speaking, “educational” in nature. …That is not the same as asking whether the gravamen of E. F.’s complaint charges, and seeks relief for, the denial of a FAPE. And that differ­ence in standard may have led to a difference in result…

  4. invivoMark says

    I think someone who says that lawyers are opposite from poets is someone who has only had experiences with bad lawyers.

    The lawyers I’ve known (and I count among them personal friends and professional colleagues) have almost all been incredibly creative, especially with language… and yes, some of the best punners I’ve known.

    I’m not a lawyer, so the best I can say in response to Musk’s tweet is, “Wrong. Next question.”

  6. Some Old Programmer says

    I’m biased, but I quite like the Massachusetts Supreme Judicial Court’s opinion from Goodridge v. Department of Public Health. As a measurement, an opinion is excerpted in a wedding ceremony likely qualifies as poetry.

    Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family. Because it fulfills yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.

  7. ardipithecus says

    Beverley McLachlin has written a couple of novels; Full Disclosure (2018) which I much enjoyed, and Denial (just released) which i will read as soon as I can get my grubby little paws on it.

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