Poetry And, Of, and About

Language, the law, and lazy power.

by David Orr

The anthology on my desk is titled Poetry of the Law: From Chaucer to the Present, edited by David Kader (a law professor at Arizona State) and Michael Stanford (a public defender in Phoenix). I’m both a lawyer and a poetry critic, so asking me to discuss this book would seem to present an especially harmonious pairing of subject and analyst—like handing an animal cracker recipe to a zoologist-pastry chef. And indeed, flipping through, I find plenty of work that appeals to me as a reader of poems who is also, when necessary, a filer of briefs. We have some well-chosen passages from Spenser (“Then up arose a person of deepe reach, / . . . / That well could charme his tongue, and time his speach”), an intriguing poetic performance from the seminal jurist Sir William Blackstone (“The Lawyer’s Farewell to His Muse”), and a number of more recent efforts that, while mixed in quality, manage to give the reader a sense of the ways in which contemporary poetry can encompass legal subjects. Lawrence Joseph’s “Admissions against Interest,” for example, nicely captures the atmosphere of nervous, chilly efficiency that permeates American corporate law, as in the beginning of the second section:

Now, what type of animal asks after facts?
—so I’m a lawyer. Maybe charming,

direct yet as circumspect as any other lawyer
going on about concrete forces of civil

society substantially beyond anyone’s grasp
and about money. Things like “you too

may be silenced the way powerful
corporations silence, contractually”

attract my attention.

Not the warmest way in which to regard legal thinking, but then, the average lawyer’s existence rarely bears much resemblance to the life of Ben Matlock, let alone Atticus Finch. Poems by Browning, Kenneth Fearing, and the underrated William Empson are similarly successful at engaging with legal concepts and language. As with any anthology, there are a few pieces that don’t quite come off (“Why does a hearse horse snicker / Hauling a lawyer away?” asks Carl Sandburg, inviting prosecution for felony anthropomorphizing). But the project as a whole is a pleasure for the casual reader, as any collection of good poems ought to be.

And yet something here is slightly troubling. Not the book itself—or at least, not this book in particular. Rather, there’s something unsettling in the preposition that anchors this anthology’s title: poetry of the law. The phrasing is an interesting choice. One can understand, of course, the practical reasoning behind it; for one thing, that “of” permits the inclusion of poems whose relation to the law is, to put it mildly, tenuous. For instance, John Ashbery’s “Ignorance of the Law Is No Excuse” begins:

We were warned about spiders, and the occasional famine.
We drove downtown to see our neighbors. None of them were home.
We nestled in yards the municipality had created,
reminisced about other, different places—
but were they? Hadn’t we known it all before?

Title aside, this poem isn’t “about” the law in any meaningful sense; it could just as easily have been called “Déjà vu Redux” or “Concerning the Halibut, However, We Were Sadly Uninformed.” We’d read it exactly the same way. But if we say the poem is “of” the law rather than simply “about” the law—well, surely that provides more room to maneuver. And it’s comforting, isn’t it, to suppose that pursuits like law and poetry aren’t really “about” each other in the almost aggressive way that instruction manuals are about food processors, but rather are as delicately interrelated as sea and shore, or bees and roses.

*     *     *

Are they, though? And what does that “of” really signify, anyway? In order to answer that question, it’s first necessary to recognize that an anthology like this one isn’t simply positioned between two subjects, but two audiences. The first is the one I mentioned earlier: the general, casual reader; the person who picks up a book called Poetry of the Law because he’s a lawyer who’s always liked Whitman, or because he’s a poetry reader whose beloved Uncle Ralph was a public defender in Gatlinburg. The second potential audience consists of scholars, and more particularly, as the editors of Poetry of the Law put it, “scholars of law and literature.”

That description may require some explanation. Most people probably would assume that the phrase “scholars of law and literature” is meant to refer to scholars of law and also, separately, to scholars of literature. But what Kader and Stanford actually have in mind here is a specific movement in the legal academy known as (bingo) “law and literature.” As they put it:

In 1973, James Boyd White’s The Legal Imagination inaugurated the scholarly study of law and literature. Since then, it has burgeoned as an academic field, yielding dozens of books, hundreds of articles, and several specialized journals.

They aren’t kidding. The past two and a half decades have given us Law and Literature (a journal edited at Cardozo School of Law), Law and Literature (a book by Richard Posner), Law and Literature: Text and Theory (by Lenora Ledwon), Law and Literature: Possibilities and Perspectives (by Ian Ward), A Critical Introduction to Law and Literature (by Kieran Dolin), and Law and Literature: How to Respond When the Epistolary Novel Files a Motion to Dismiss Pursuant to frcp 12(b)(6) (okay, maybe not that one). In any case, there’s a lot of material out there. “Yet for all the richness of this scholarship,” as the editors observe, “[the law and literature movement] has focused almost entirely on fiction and drama.” So part of the goal of Poetry of the Law is to demonstrate that poetry, like its sister arts, can provide “considerable new matter worthy of study.”

And who wouldn’t want that? But when we’re talking about new matter worthy of study, we should acknowledge that the project taken up by Poetry of the Law is different from that of anthologies focused on, for instance, bicycles or basketball. This is a distinction that gets elided, however, when the editors assert that this book

fill[s] a striking gap in the universe of contemporary poetry anthologies, which includes, after all, multiple collections of poems focused on such central human concerns as love, war, and politics, as well as...more specialized topics like travel, sports, dogs, cats, birds, flowers, mothers, fathers, and poetry itself.

That sounds reasonable. But an anthology of poems about love might include work from Rilke, Szymborska, and Li Po; the same goes for an anthology about travel. Poetry of the Law, though, includes only poets from the United States, Great Britain, and Ireland, and could therefore be more accurately titled Poetry of the Common Law Tradition, Extending into Modern American Jurisprudence—or more simply, Poetry for the Modern American Law School. It’s not entirely correct, then, to say that this book intends to give us poems having to do with a “central human concern” (like love) or interesting things that pretty much everyone can look at or participate in (like roller coasters or birthday parties). This is, rather, a book that aims at something a little more peculiar: uniting the specific, local incarnations of two modern practices. It’s a book about combining academic disciplines.

*     *     *

And with that, the dread word “interdisciplinary” descends. Before going any further, though, I’d probably better explain what I mean by referring to poetry as an “academic discipline.” As countless letters to Poetry have demonstrated, the academic status of poetry is a subject that gets poets riled up—and while being riled up is often a fine thing, especially for poets, it’s usually best to save that sort of energy for subjects that deserve it. So the claim here is modest and, I think, inarguable: At present, the single largest institutional factor in the world of American poetry is the American university system (as opposed to, say, the world of corporate publishing or the non-profit arts sector). Poets are largely employed by universities or are trying to become so; the audience for poetry, such as it is, exists largely within the university; and a large part of the distribution of poetry in the us is handled by universities, typically by means of academic presses. The art form, as Mark McGurl put it recently in The Program Era, “has been all but entirely absorbed by institutions of higher education.”

For reasons I’ll explain shortly, I believe the “all but” in McGurl’s characterization is an essential qualifier. But for now, the point is simply that poetry exists in large part as a manifestation of creative writing departments (and again, I’m neither praising nor condemning this structure, merely acknowledging that this is the lay of the land). As such, poetry is now exposed to the same anxieties that all academic practices face, one of which is simply the anxiety that comes from realizing that one’s fellow practitioners are modern academics arranged in (or maybe confined in) a discipline.

The critic Louis Menand believes this anxiety helps account for the intense popularity of interdisciplinary studies, the university trend that motivates and sustains books like Poetry of the Law and has given rise to such academic sub-specialties as the philosophy of physics and evolutionary psychology. Interdisciplinarity is, as Menand puts it in The Marketplace of Ideas, simply “the name for teaching and scholarship that bring together methods and materials from more than one academic discipline,” and “there are few terms in twenty-first-century higher education with a greater buzz factor . . . No one, or almost no one, says a word against it. It is evoked by professors and by deans with equal enthusiasm.” Menand himself is skeptical about this excitement, however, and speculates (this is a long quote, but bear with it):

Maybe, in the case of the academic subject, self-consciousness about disciplinarity and about the status of the professor . . . is a source of anxiety. . . . Academics have been trained to believe that there must be a contradiction between being a scholar or an intellectual and being part of a system of socialization. They are conditioned to think that their workplace does not operate like a market, even as they compete with one another for status and advantage. Most of all, they are ambivalent about the status they have worked so hard to achieve. Interdisciplinary anxiety is a displaced anxiety about the position of privilege that academic professionalism confers on its initiates and about the peculiar position of social disempowerment created by the barrier between academic workers and the larger culture.

So the desire to reach toward other disciplines often isn’t so much a way of combating the limits of one’s own methods as a manifestation of a deeper concern over privilege and isolation. We feel trapped in what we are, and we think that if we could meet some other practice halfway, we’d be . . . renewed? Transformed? Made whole? For once, then, something. But beyond all this, Menand suggests,

we want to feel we are in a real fight, a fight not with each other and our schools, which is the fight that outsiders seem to be encouraging us to have, but with the forces that make and remake the world most human beings live in.

We want to matter, that is. And one way to matter is to find something that’s unquestionably important to “the forces that make and remake the world most human being live in” and then to find some way of mattering to that. One stands close to the general, hoping to share in the glamour of command. Aside from the inducement of making a quick if small buck, this is a primary motive behind the deluge of poetry anthologies about everything from love to lizards. Does nature matter? Does it speak to you? Well, poets have thought about it! And sports! And horses and depression and music and war! Yet significant as these things are, they’re only concepts for the most part, not disciplines. If you really want to “make and remake the world,” if you really want to do something meaningful with your interdisciplinary project, then you’re going to want to pair up with something a little less abstract. You want something rigorous. Powerful. Organized. Regimented, even. And preferably within walking distance.

*     *     *

The law school, for example. Law is an attractive interdisciplinary target for poets for several reasons. First, legal practice consists mostly of saying things or writing things down, and since poets have generally claimed a special authority over language, the match seems a natural one. (We’ll set aside, for the moment anyway, the validity of this particular assumption, which is not generally shared by attorneys.) Second, law makes things happen. Even the lowliest lawyer has the power to force someone to respond to a legal summons, thereby exerting more influence on society than any American poet but Jimmy Carter, or possibly Jewel. So it’s easy to see why poets might be pleased by a book like Poetry of the Law. It implies a relationship almost perfectly designed to soothe the anxieties of poetry-as-academic-discipline: if lawyers can think about poetry, then poets can think about, and maybe even shape, the law. And suddenly the mirror through which the Lady of Shalott perceives the world seems to exert force rather than simply providing reflection. Maybe it’s now even possible to imagine the title of the anthology in reverse: The Law of Poetry.

But poetry is attractive to law as well—or at least to the legal academy. Because while law’s academic status may seem unassailable from the perspective of an adjunct professor of creative writing, the legal professoriate often views its position quite differently. As the Yale Law professor Jack Balkin puts it in “Interdisciplinarity as Colonization”:

These days there is a profound sense of questioning about the purposes of legal scholarship, a profound sense of concern about the fracturing of legal scholarship into mutually incomprehensible camps, and a profound sense of worry about the increasing and, for many, undesirable isolation of legal scholarship from the concerns of the legal profession, the bench, and the bar.

So Balkin sees the same anxiety in law schools that Menand finds in the English department. As Balkin goes on to observe, given the uncertainty over legal education, interdisciplinary projects might actually seem to be “a threat to the self-identity of the law professor and the legal academy.” And yet at the same time, such projects are enormously attractive, and are, in fact, essential for tenure at many law schools. At most elite schools (which provide the majority of legal faculty throughout the us), there is a sort of constant, low-intensity skirmishing, as various interdisciplinary factions struggle to earn more space on each school’s agenda. For the past several decades, the most successful of these by far has been the movement known as “law and economics,” which, as you might guess, attempts to use economics to explain, analyze, and predict the legal system. That movement is, unfairly or not, often identified with conservatism and libertarianism, so it should come as no surprise that its methods are often opposed by legal scholars who favor law and literature (as well as scholarsspecializing in feminism and what’s sometimes known as critical race theory). But it’s hard to fight without allies, so, as Balkin and Sanford Levinson write in “Law and the Humanities: An Uneasy Relationship”:

Contemporary law and literature scholars now offer the humanities as an antidote to, or an escape from, a legal world which, they believe, has become all too technocratic and divorced from any human values save economic efficiency.

One way to look at Poetry of the Law, then, is as evidence of a quietly arranged alliance. Faced with the Huns, the humanistically inclined segment of the legal faculty calls in the poets for last minute assistance. Of course, as most poets know, we aren’t necessarily very effective against Huns, let alone economists, but who’s going to complain if the lawyers decide to pay attention? After all, it’s not as if many other people are.

*     *     *

And that, perhaps, brings us back to the significance of the phrase “all but,” in Mark McGurl’s claim that poetry “has been all but entirely absorbed by institutions of higher education.” “All but” means “almost completely,” but it also means “not quite.” That difference matters, I think, and in ways that many poets may not fully appreciate. One of the main points that Balkin makes about interdisciplinarity and the law is that no matter how confused the legal academy may become, or how frequently it may be invaded by offshoots of other disciplines (economics, political science, philosophy, etc.), no one ever manages to dominate it. This is because law schools are continually being pulled back to their primary duty of educating people who are going to be lawyers, not scholars. The legal world that exists outside of school has its own rules and insists that law schools never completely forget them.

This should strike a familiar chord for poets. Creative writing is not, on the whole, a strong discipline in the way that the university conceives of such things. It lacks a coherent methodology, shared assumptions about its own materials, perspective on its relationship with other academic departments, and often any kind of historical sense. It can be pretty loosey-goosey stuff. But it’s also supposed to be loosey-goosey stuff. As McGurl observes:

It is precisely an unresolved tension between the “confinement” of institutionality and the “freedom” of creativity that gives creative writing instruction its raison d’être as an institutionalization of anti-institutionality.

Creative writing is both of and, significantly, not of the university—and that’s the core of its identity as a university department. In this sense, a young poet in a creative writing class is arguably closer to being a law student than a PhD candidate. Both the poet and the lawyer are, at least in theory, constantly feeling the force of a world outside the quad. For the lawyer, that force is the bench and the bar; for the poet, it’s the reader.

Again, at least in theory. One of the more frustrating spectacles in the American poetry world is the seemingly never-ending bickering over whether poets are, or aren’t, or should, or shouldn’t be more involved in “the real world” that potential readers supposedly inhabit, and in particular whether teaching somehow prevents this involvement from occurring. This bickering typically settles into two positions, neither of which is persuasive. On the one hand, people regularly complain about poetry’s academic status as if it were obvious (a) that no one involved in university life could ever think about anything but university problems; and (b) that there are no benefits to being employed by a university—say, health insurance—that might conceivably outweigh the liabilities. On the other hand, it is depressingly easy nowadays to find poets who behave as if the only audience that matters is the one signed up for fall term, and who seem to believe that poets and critics who bother to speak to anyone else are engaged in a kind of quaint pretense, like wearing a smoking jacket. Often these poets will make noises about how poetry’s audience has “always been tiny” (as if it were sensible to compare the us circa 2011 with Elizabethan England), while simultaneously ignoring the question of why, if poetry is a magical flower that needs no tending in order to flourish, anyone should be paid thousands of dollars to teach it.

Both attitudes aren’t so much wrong in theory as mistaken in fact. For practical reasons, it makes little sense to complain about the academic status of poetry: that ship has not only sailed, but is probably halfway through the Strait of Magellan, which is a good thing in many ways. (Frost may not have been entirely right when he claimed that “the best audience the world ever had...is the little town-and-gown audience that we get in the little college towns in the usa”—but he wasn’t entirely wrong, either.) Yet it’s also incorrect to assume that poetry can exist as a purely academic enterprise, not simply because the arguments to the contrary above are unconvincing, but because it is precisely the perception that the art form is unacademic that allows it to flourish in the university in the first place. Why, for instance, don’t we teach serialized novel writing in American universities? Because serialized novels no longer play a role in the world outside of American universities. And the moment at which poetry ceases to be meaningful to non-professors—to doctors and lawyers and engineers and basketball coaches—isn’t the moment it will become a purely academic discipline; it’s the moment it either will be abandoned by academia or (more likely) quietly absorbed by the English department. This, as Balkin reminds us, happens regularly in our cordially interdisciplinary universities:

Interdisciplinarity results when different disciplines try to colonize each other. If the takeover is successful, work is no longer interdisciplinary; rather, it is seen as wholly internal to the discipline as newly constituted.

Poets, the bell tolls for thee.

*     *     *

In “Two Tramps in Mud Time,” Robert Frost outlines a scene in which a speaker who is happily splitting wood is approached by two tramps who’d like to do the wood-splitting job for money. They need the work, he doesn’t. Frost then meanders into three stanzas of seemingly unrelated disquisition on the unpredictability of weather in April before returning to the tramps’ entreaty in the poem’s well-known conclusion:

Nothing on either side was said.
They knew they had but to stay their stay
And all their logic would fill my head:
As that I had no right to play
With what was another man’s work for gain.
My right might be love but theirs was need.
And where the two exist in twain
Theirs was the better right—agreed.

But yield who will to their separation,
My object in living is to unite
My avocation and my vocation
As my two eyes make one in sight.
Only where love and need are one,
And the work is play for mortal stakes,
Is the deed ever really done
For Heaven and the future’s sakes.

The question for writers, always, is never simply, “What must I do, in order to write?” It is, as Poetry of the Law and “Two Tramps in Mud Time” both suggest, albeit in different ways, “What does it mean for my writing to be of my life, and my life of my writing?” How can “love” and “need” be one? One answer, obviously, is that you can get paid for doing what you love. This is not, alas, generally an option for poets. Another answer is that you can do something reasonably close to what you love, and hope that some of the love bleeds into it. This is more or less the idea behind university arts programs, and it isn’t a bad one. But it’s not always a good one, either. It exposes artists to the problems faced more generally by academics—the anxiety that troubles Menand, for instance—and it can lead to confusion over which needs are getting met, and which loves are getting slowly left behind. To be fair, one can leave a love behind just as easily while working at Kinko’s. More easily, if the color copiers keep breaking.

Perhaps a more useful way to think about these questions comes not from the essayistic conclusion to “Two Tramps in Mud Time,” but from the odd three stanzas about April weather that precede it. These stanzas don’t, on the face of it, make much sense in the broader context of the poem. Here’s the first:

The sun was warm but the wind was chill.
You know how it is with an April day
When the sun is out and the wind is still,
You’re one month on in the middle of May.
But if you so much as dare to speak,
A cloud comes over the sunlit arch,
A wind comes off a frozen peak,
And you’re two months back in the middle of March.

What do we make of this? Not much, some would say. Hayden Carruth, for instance, claims Frost simply

appears not to know what to do with his opening. The poem wanders into further unnecessary description: the April day, the bluebird, the snow and water. . . . One can see clearly, I believe, how he had deserted his own imagination and how he tried to make up the deficiency through conscious manipulation and force.

The reaction is understandable but misjudged. Throughout his poems and prose, Frost is drawn to digressions, awkwardness, and wrong notes—but in the way that, for instance, a champion athlete might pause in the middle of a race to juggle chainsaws before going on to win by a yard. It’s a display of confidence and lazy power. In an era in which Eliot was busily putting together systems from which his work might emerge as a luxury good—many of which are still very much with us—Frost was happy to undermine anything settled, regular, or authoritative in the name of one of his favorite words, “play.” The three out-of-place stanzas in “Two Tramps in Mud Time” are, in fact, illustrative of the poem’s broader point: it’s exactly the pleasure of doing what one wants that allows the poet to chop wood, or to spend twenty-four lines talking about bluebirds and snow for no particular reason. The poem celebrates its own autonomy.

Which is something poems, and poets, should always celebrate. However anxious the poetic life may become; however difficult it may be to resist pressures from the forces, institutional and otherwise, that surround the art; however awful it may be to know that there are panels being organized even now in which poetry will be discussed as if it were a combination of baseball statistics and sloppy philosophy; however bad all this may be, there is always room for confidence in poetry’s own lazy power. Wherever one works, wherever one lives, there is always a way to write poems about bluebirds that aren’t about bluebirds. And with due respect to kindly motivated projects like Poetry of the Law, such work will never be truly “of” anything. It’ll just be poetry—which has always been more than enough.

Originally Published: February 1, 2011

COMMENTS (1)

On February 3, 2011 at 5:07pm JAFFRAY GEDDES wrote:
I write poetry. Have a proven record of
its publication in major literary journals
here in New Zealand and Internationally. I most certainly do not claim to be a 'Poet'! WHY? because I have come with age to know the real and true poets of this world are ever reaching out..poetry is an endless adventure not an academic rostram for
an elite- believing coterie of poets all
postulating their "academia" laurals!
It is a speculation like the God-Belief>
Most of all it can't be taught. GOOD READING

JAFFRAY

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This prose originally appeared in the February 2011 issue of Poetry magazine

February 2011

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Biography

David Orr writes the column “On Poetry” for the New York Times Book Review. He is the author of Beautiful & Pointless: A Guide to Modern Poetry (HarperCollins, 2011).

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