The Law in Literature

One of my favorite classes back in my law school days was Law in Literature. The course was fairly simple: the class read a variety of literary works that included legal themes; the students gathered once a week to discuss them; and each student wrote their own short story for the final grade. I did very well in the class, but more importantly, I enjoyed it.

My favorite genres of literature are science fiction and fantasy. I am largely bored by realistic depictions of the world as we know it. Though character-driven writing is something I like, I also want a world in which the author speculates about alternative possibilities. Alternative government types, alternative technologies, alternative relationships between peoples and races, and, of course, alternative legal systems.

Legal issues generally don't come up much in most popular science fiction and fantasy. But sometimes they do. One of the stories we read in my Law and Literature class was "The Bicentennial Man" by Isaac Asimov. In that story, a robot realizes that he wants to become human, so he embarks on a slow journey to transform himself from cold steel and machinery to warm flesh and blood. He undergoes extensive surgery and replaces his mechanical parts with organic parts, one at a time, until he is entirely organic and not a machine at all.

One of the themes of the story is mortality, of course (robots never die, but humans assuredly do). But another is humanity itself - that is, what it means to be human, and who qualifies. The robot must eventually hire a lawyer who argues that, with a human heart and mind, he qualifies as human and should be freed of the strict laws that regulate everything robots can do, even though he was "born" a robot.

The Bicentennial Man covers a lot of legal ground in very general terms. Asimov was a scientist by training, not a lawyer, so he didn't focus much on the procedural aspects of the robot's legal journey. The reader assumes that the action in court plays out in ways we are already familiar with. The story takes place on future Earth whose society has origins that are most certainly our own.

One could say that Asimov was concerned with substantive due process rather than procedural due process. That is, the questions of what our rights are and who qualifies for them. Procedural due process, by contrast, turns on a question of fairness. Can rights be infringed? And if so, when and how is the government allowed to infringe them?

Elizabeth Moon tackles this latter aspect of the law in her book The Sheepfarmer's Daughter. The book, the first in a trilogy, is about a woman named Paksenarrion who joins a mercenary army as a teenager and eventually finds her destiny as a powerful paladin. Early in the book, "Paks" is involved in a violent altercation with a fellow recruit but that recruit remembers little of the attack and Paks is named as the instigator by a second soldier. The superior officers must solve the mystery, and to do so they initiate a court martial process with several unique aspects.

First, one of the officers is appointed to investigate Paks, who is in the infirmary with serious injuries. Paks, despite her serious wounds, is locked in chains in a prison cell. But the investigating officer senses something is wrong because Paks is seriously hurt but the others are not. The higher-ups are not inclined to believe Paks' story, but the officer makes a compelling case and a full trial is ordered.

In order to conduct the trial, the officers must issue summons to two "witnesses." One, a man, is the mayor of a city. The other, a woman, is a war hero. The witnesses are respected members of the government and military who are trusted for their experience and reputations. They are not lawyers nor appear to have any legal training.

The witnesses arrive and, in front of the entire assembled unit to which Paks and her attacker belong, physically assess the parties involved. At one point, they strip naked both Paks and the recruit accused of fighting with her to inspect their injuries (the other recruit has only bruises and two broken fingers, while Paks is swollen all over and covered in blood). The female witness, noting the obvious discrepancy of the parties' conditions, demands Paks be released from custody and treated for her wounds until the investigation is concluded. The officers immediately comply with her demands - apparently her status as "witness" gives her such authority - and take Paks away from the assembly and to the infirmary.

Then the witnesses - again, in front of the entire assembled military unit - take testimony. They interrogate the investigating officer. They determine more testimony must be taken - especially that of the other soldier who gave the most lucid account of the incident - and refer the proceedings to the jurisdiction of the local monarch, the so-called "Duke's Court."

Eventually, after more physical evidence is assessed and more testimony is taken, the captain of the military unit reaches a verdict "on the basis of the witnesses' reports, conferences with [supervising officers], and an interview with [the other recruit involved]." The Captain gives the full assembled unit an account of his findings, and then orders a combination of punishments including public flogging and exile. 

The investigation and trial are well-told in the story, and make for an interesting spin on the court martial process we apply in our own military. Elizabeth Moon is nothing if not a very thorough writer, and the sequence was a good way to make interesting what could have been a dull recounting of medieval military training.

If we are to speculate about other societies, in space or in medieval fantasy worlds, we should not just speculate about economies and technology. In our world, how we resolve disputes through our legal system is a critical, foundational part of our society. So, too, would it be in some other civilization, far into the spacefaring future or in some alternate dimension where wizards inhabit tall towers and giant lizards haunt the skies.

As I read science fiction and fantasy stories, I make note whenever obvious legal themes arise, and perhaps someday I'll turn my findings into a longer and more formal piece. After all, what could be more fun than a lawyer turning stories about space ships and dragons into a law review article?

The Home Library Project

I am an obsessive collector of books, stifled only by my own strict budget. My collection always seems to flow over my supply of shelves. 

Over the summer, my wife and I renovated the rear of our house, gutting the old addition that was once (and is now again) my home office. Gone now is the old pine paneling that used to line the uninsulated walls of a former screened-in porch. Now the room is insulated, drywalled, and has fancy LED lighting. 

With a new office space came an opportunity to finally build a sufficient space for my books. I decided to dedicate an entire wall of the room to holding my collection. The roughly 75 square feet of wall space seemed like enough, so I got to planning the shelves.

At first I wanted fancy built-ins, but those being cost-prohibitive and me being a cheapskate, I instead went internet browsing for more ideas. I came upon writer Neil Gaiman's incredible basement library and had an ah-ha! moment. I didn't need fancy shelves, I just needed long shelves and lots of them. 

So I went a cheaper route: metal hangers and hand-built, but simple, long wooden shelves. 

The construction process went something like this (scroll through the gallery):

I hung racks from the studs in the wall, then arms from the racks. On the arms I placed long boards painted white, and on the boards I placed books. Pretty simple, right? The entire project (racks, arms, wood, paint) cost me only about $450. Probably a third of what full built-in shelves would have cost.

And I couldn't be happier. The room now feels like the library I always wanted. And my books are finally inside where they belong, instead of out in the garage where they sat in bins for nearly four months as we renovated and waited for carpet.

Now I'm in the process of cataloging my roughly 500 books, most of which are law-, history-, and sociology-related. I'm also a big science fiction nerd, and I'm an obsessive Isaac Asimov fan. I currently have eight different versions of his Foundation Trilogy, including a leather-bound collection and the Folio Society's incredible illustrated set.

You can check out my full library here. Note that the cataloging work is still in progress, and the collection is always growing larger.

Flying Blind

Major corporations often have large in-house legal teams. These internal lawyers review contracts and documents, advise human resources on employment law matters, and help to avoid expansion missteps caused by regional or national variations in regulations. Hiring a lawyer or lawyers to provide the first line of defense against expensive legal screw-ups is just a part of doing big business.

But smaller companies, especially those with less-experienced management, often forgo the hiring of in-house counsel or the retention of outside legal advisors, sometimes for years. Usually this is due to budget constraints, but even fast-growing young companies with money to burn can put off adding legal staff for far too long, confident that a lack of legal trouble early on means no legal trouble will ever develop.

But if a company has clients and hires employees, eventually they will find themselves in a legal dispute. It's inevitable; a predictable cost of doing any kind of business.

It is a common occurrence in any kind of employment practice to see employee agreements with horrible flaws, such as illegal provisions regarding hours and overtime, unnecessary arbitration clauses, unenforceable non-compete clauses, and the like.

Or you will see contracts signed with clients that lack vital terms of the deals - like payment schedules or rainy-day backup plans - leaving it up to a court to figure out what performance the parties owed to each other when they inevitably disagree and accuse each other of breach.

Too often small companies try to coast on their history of legal peace, confident that simply because they have not so far been sued by anyone that they will never be sued. But as they grow and employ more people and take on more clients, the odds of conflict increase dramatically. It's just a matter of statistics. The more people you work with, the greater the chance of legal dispute. Not every deal will work out. Not every employee will be compliant. Not every manager will behave themselves.

Though the majority of my practice is on the plaintiff's side of employment disputes, it would not hurt my feelings at all if more companies took the important step to add wise internal counsel to avoid or mitigate many of the conflicts that can arise in the usual course of doing business. The fewer employees who suffer discrimination, the better. The fewer client contracts that turn out to be huge legal losses instead of huge revenue gains, the better. The fewer managers who have to take the stand and risk the reputations of themselves and their companies by giving embarrassing testimony about their mistakes, the better.

Young and growing business owners: when it comes to legal issues, don't fly blind.

Copy Paste

Plagiarism has been a big news item lately. At the Republican National Convention this past week, Donald Trump's wife Melania gave a speech that included word-for-word passages taken from Michelle Obama's 2008 speech to the Democratic National Convention. That caused a bit of an uproar, mostly among academics, journalists, and Democrats.

Stealing other people's words and passing them off as your own is bad. But stealing from others is not the only form of plagiarism. There is also something called self-plagiarism, where you steal from yourself without attribution. Compared to stealing from others, it's a lesser sin, but still generally frowned upon. Sometimes sternly.

Now, a disclosure. Lawyers are habitual plagiarizers. We recycle documents constantly, using language from past motions written by ourselves and partners to fill out new motions, copy/pasting big chunks of old briefs and filings into new briefs and filings, etc. Firms often keep repositories of past filings that are shared by multiple lawyers. Some lawyers, especially those with lots of clients and heavy workloads dealing with the same legal issues over and over, routinely reuse old documents, sometimes simply replacing one client's name with another. It's not the best way to do things but it saves a ton of time. There are some filings in litigation that are truly routine and rewriting them from scratch is wasteful and simply not necessary.

Is this OK? I've seen it excused on the basis that the lawyer is not claiming whatever it is he or she plagiarized as his or her original work in a public sphere - in other words, there is a difference between court filings and an academic article or a news piece - but that's not really true because court filings are public and lawyers sign their names to everything they file.

But, on the other hand, legal advocacy is not an academic pursuit. You have to write a lot and provide sources, sure, but lawyers use written briefs and motions to point out to the court the legal reasons why their client should win a particular dispute. Legal writing is a tool more than a piece of scholarship. Even a 14,000-word appellate brief is not considered an academic work for which the author is seeking personal recognition. It's a letter to the court asking for them to do something in your favor and giving them reasons why they should.

Judicial opinions, like those written by Supreme Court justices, are a little different in my mind. They're still not academic or journalistic works, but they carry the weight of law and are cited for their authority as legal precedent. They gain power over time, and reflect the author's personal views on how the law should operate and how it should be applied to facts which may reoccur in the future. Judicial opinions contribute to a judge's public reputation. So, in that case, I think plagiarism is a much bigger deal.

What about self-plagiarism in judicial opinions? Well, that's kind of curious. Is a judge ripping himself or herself off in an opinion without attribution as big a deal as stealing from another judge without attribution? Probably not. But is it still kind of dubious? Probably.

Until recently, I had never noticed an incident of judicial self-plagiarism. But in my preparation to teach an upcoming class on constitutional rights, I noticed an interesting little historical reference used twice by the late Chief Justice William Rehnquist.

In 1985, the Supreme Court decided the case of Wallace v. Jaffree. Jaffree was a lawyer and the father of three children attending public schools in Mobile, Alabama. At school, his children were required by state law to observe "a period of silence, not to exceed one minute in duration...for meditation or voluntary prayer." Jaffree sued the school district, arguing that the purposeful inclusion of "voluntary prayer" by the Alabama legislature violated the Establishment Clause of the First Amendment.

The Supreme Court agreed with Jaffree, and struck down the law. In dissent, then-just-Justice Rehnquist (he would become Chief the next year) wrote a solo dissent criticizing the Court's interpretation of the Establishment Clause. The Court interpreted it to require strict religious neutrality on the part of the government. Rehnquist argued that the prominent role of religion in the history of American government belied this claim. To bolster his argument, Rehnquist referred to a person you may have heard of:

George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God."

472 US 38, 113. I didn't omit any citation. Rehnquist didn't cite any source for this quote. But that's not the rub.

The rub comes fifteen years later, in a case called Santa Fe Independent School District v. Doe. In the late 1990s, Santa Fe High School in Texas started every football game with a student-led prayer or invocation. A group of students and their parents sued the school district, arguing that the pre-game religious ritual violated the Establishment Clause.

Like in Jaffree, the Supreme Court agreed, striking down the school's prayer scheme. Justice John Paul Stevens wrote the majority opinion (just like he had in Jaffree). And once again, now-Chief-Justice Rehnquist dissented. The fact that he dissented wasn't the only thing familiar about the case. This passage from his opinion in Santa Fe may also seem familiar:

...when it is recalled that George Washington himself, at the request of the very Congress which passed the Bill of Rights, proclaimed a day of "public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God."

530 U.S. 290, 318.

Rehnquist used the exact same sentence about George Washington in his Santa Fe dissent that he had previously used in his dissent to Jaffree. The only difference in Santa Fe was that he included a historical source for the Washington quote ("Presidential Proclamation, 1 Messages and Papers of the Presidents, 1789-1897, p. 64 (J. Richardson ed. 1897).").

Rehnquist did not, however, note the fact that he had already written this same passage in Jaffree. Normally when Justices quote themselves, they cite to the original opinion (even if it was a dissent and not the majority holding). It is somewhat odd that Rehnquist didn't do that in Santa Fe considering he was trying to make the exact same point he made in dissent to Jaffree.

Is this a big deal? Probably not. Chief Justice Rehnquist was no Melania Trump. But it is interesting to see that the phenomenon of plagiarism pops up even in the hallowed halls of the United States Supreme Court from time to time.