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Volume 27, Number 1 (2003) reprinted by permission Legal Studies Forum IF STEPHEN KING DISCOVERS CUJO, CAN JUDGES DISCOVER LAW? KENNEY HEGLAND* In his new book, or, more accurately, in one of his new books, King tells us how he goes about writing a novel.1 He doesn't begin with a plot, with a well thought out notion of his story; rather he begins with specific facts and goes from there. "I'll have a dog, let's call him Cujo. He very much loves his boy. He gets rabies. Let's see how this plays out." More provocative than his method is King's insistence that he discovers his stories. This raises the key questions of this essay: what does it mean to "discover" a story? And, if King discovers Cujo, can judges discover law? Of course judges don't discover law. We've known that since First Year. There is nothing, 'out there,' to discover. Judges invent law. "The law does not exist 'out there' to be found; rather it is a reflection of a complex interplay of information, expertise, and value choice."2 Really? First, let's recognize that this is a question (it is rarely presented as one). Second, let's recognize that it is an important question. Third, let's at least entertain the possibility that we are wrong. If law is simply invented by judges, it's legitimacy is a stake. If I, based on my information, expertise, and value choice, come out differently than the judges, who is right? Why should I obey? Should I obey because the Constitution gives the judges the authority? Should I obey because the judges' opinion is better reasoned, more consistent, and more articulate than mine? Nope, none of these moves work. If matters of substance rest on mere opinion, so too matters of process: if I don't think the Constitution or the majority should prevail, and if I think that illogical and inconsistent grunts are fine, then who's to say I'm wrong? If the law is discovered, relativism vanishes: law, and our commitment to process (the Constitution, majority rule, rationality, and articulation), rests on bedrock, not whim. However, the discovery view tends toward intolerance ("I'm sure I'm right"), tends toward abstraction ("Who cares what is happening on the street when we know what should be happening?"), and tends toward rigidity ("We got this right the first time"). The view that judges invent or create law solves these problems: it promotes tolerance, practical, non-theoretical, problem-solving, and, as a result, is quite flexible in dealing with new problems. Unfortunately it throws us back into the morass of relativism. Arthur Leff said it, once and for all: Napalming babies is bad. Starving the poor is wicked. Buying and selling each other is depraved. There is in the world such a thing as evil. [All together now:] Sez who? God help us.3 Before proceeding, a brief matter of marketing. In our secular world, the assertion that law may be discovered 'out there' is a non-starter, doomed to be dismissed as mysticism, natural law, or partisan religion. Given our current infatuation with DNA, genetic disease and evolutionary theory, it would be smart for proponents to reframe the assertion: law can be discovered 'in here,' as part of our genetic code, as part of our evolutionary history.4 The key question, of course, is not location: it is whether there is something, somewhere, that curbs individual whim, that provides bedrock, that helps us answer the grand "Sez who?"5 The history of the discovery/invention debate is way beyond my capabilities.6 I have modest goals. Drawing on the work of novelists, and, as you will see, on your own writing experiences, I want to suggest, in a tentative sort of way, that judges can discover the law or, at the bare minimum, that, in addition to the complex interplay of information, expertise and value choice, something else, something very important, is going on. I will be quite happy if you conclude, "Well, the man's an idiot, but, now that I've thought about it, things aren't quite as simple as I thought." This would be a major concession because it would open the door to, well, who knows what? How do novelists go about their work?7 One might think that they start with a plot. Not so, at least King doesn't. "I distrust plots for two reasons: first, because our lives are largely plotless, even when you add in all our reasonable precautions and careful planning; and second, because I believe plotting and the spontaneity of real creation aren't compatible."8 This is marvelous news for those of us who know there is a great novel in us, but don't know what it's about. But even if we come up with a plot, our book may surprise us. Pudd'nhead Wilson surprised Mark Twain: "I had a sufficiently hard time with that tale, because it changed itself from a farce to a tragedy while I was going along with it."9 But if novelists like King don't start with plot, where do they start? Ian McEwan, on writing Atonement: "I started with a girl with some flowers in her hand walking in a room in a country house. Sentences simply grew into paragraphs, and paragraphs became a chapter. I knew I had started a novel but I didn't know what novel it was."10 Stephen King tells us that it is a false "assumption that the writer controls the material instead of the other way around" and sums up this view with "The book is boss."11 The situation comes first. The characters--always flat and unfeatured, to begin with--come next. Once these things are fixed in my mind, I begin to narrate. I often have an idea of what the outcome may be, but I have never demanded of a set of characters that they do things my way. On the contrary, I want to do things their way. In some instances, the outcome is what I visualized. In most, however, it's something I never expected.12Sound familiar? This is what judges are supposed to do: start with specific facts and legal principles and then forge ahead to see how things work out. It's okay if they have "an idea of what the outcome may be," as long as they are open to the possibility that the facts and law will take them where they never expected. Cynics tell us that judges really don't work this way at all; that they reach their decision first and then impose that result on their analysis, highlighting the facts and law that supports their pre-ordained result: they start with plot and then fit their stories around it; they demand that the law and facts do things their way. The sad truth is even worse. Judges seldom write their own opinions13 and no doubt our jurisprudence is lesser for it. Writing is painful. We are forced to give up choice morsels, to, as King says, "murder our darlings"14; we are forced to change directions and to waterdown things we had thought we believed in passionately. We all know of the tension between destination and journey. Even with a very clear destination in mind ("the statute is constitutional"), the hard work of writing towards it informs the journey and there is always the possibility that the case will become boss and change our destination.15 Writing matters; so too authors. Law clerks write most opinions. Law clerks come from the narrowest and rarest human niche, folks who do well both on the LSAT and on law school exams. Judges are diverse lot, with differing legal and life experiences; aghast, some weren't in the top of their class. Envision a world where all of our novels were written by graduates of elite English departments.16 But my main interest is with another aspect of the novelist's experience. If the book is boss, if tales change from farce to tragedy, and, if stories surprise their authors, where's the story? King tells us "stories are found things, like fossils in the ground. . . . Stories are relics, part of an undiscovered pre-existing world. The writer's job is to use the tools to get as much of each one out of the ground intact as possible."17 One is tempted to dismiss this fossil business immediately. "Surely it's more complicated than that. Don't make a mountain out of a metaphor. Novels do not exist 'out there' to be found. Sloppy writing on King's part. Self-delusion. Did he footnote?" Piaget, the great child psychologist, wrote that small children confuse invention and discovery: when they invent something, they think they are discovering some preexisting truth.18 But it could be the other way around: when we think we are inventing something, we are simply discovering preexisting truth. How can we talk? One way is to read what others have to say, but we always face the problem of false consciousness; no matter what they tell us, no matter what they think they are doing, we don't know what's really going on inside, in King's head, nor, for that matter, in Rehnquist's. But we do know what goes on in our own. Consider the last thing you wrote. Were you boss? Or was your material? Did you invent your insights, or did you discover them? Were you free to roam, or were you boxed in at every turn, boxed in by notions of logic, style, and reality, notions that you did not choose but were simply, and inconveniently, "there"? I chip. Had I been boss, I would have finished weeks ago. I struggle. I curse. Something murky floats beyond reach; I try to pin it with words, it fades and dissolves. I bog down, stare blankly at the computer, grow despondent, rethink my life .... but then, every now and then, something will flash: "Writing a novel is like deciding a case!" I recognized that; I didn't invent it. What does it mean to "discover" something? Let's return to the "finding fossils" metaphor. At first blush it seems incoherent. What is the claim? To suggest that judges find law doesn't envision Restatement Sections, replete with Illustrations, floating somewhere beyond the rainbow. King didn't mean, I take it, that he found Cujo as one finds an old manuscript, dusty but complete. What he means is that once he began with a rabid dog, the story flowed naturally along lines that he did not control. Sentences grew into paragraphs. What would the dog do next? How would he feel? What would happen then? The fossil answers King's questions, suggests new ones, flashes insights, and tells King when he gets it right and warns him when he is getting it wrong. Near the end of Cujo, after the dog has attacked and killed His Boy, King tells us: "It would perhaps not be amiss to point out that Cujo had always tried to be a good dog."19 King discovered this about Cujo. This wasn't King's doing; it was Cujo's. King was merely reporting. Had King written, "Cujo was pleased with what he did," he would have been wrong and we, his readers, would know it. When I read that Cujo had always wanted to be a good dog, I immediately knew that King was right: he had told me something I already knew about Cujo, but something I didn't know I knew. Perhaps a good novel, and perhaps good teaching, is really about reminding people of what they already know.20 One might get the idea from all of this that writing is easy, novelists just sitting back and recording what happens as the story reveals itself. Not so. A friend came to visit James Joyce one day and found the great man sprawled across his writing desk in a posture of utter despair. "James, what's wrong?" the friend asked. "Is it the work?" Joyce indicated assent without even lifting his head to look at the friend. Of course it was the work; isn't it always? "How many words did you get today?" the friend pursued. Joyce (still in despair, still sprawled face down on his desk): "Seven." "Seven? But James . . . that's good, at least for you!" "Yes," Joyce said, finally looking up. "I suppose it is . . . but I don't know what order they go in!"21 Writing is very hard work and, for those of us in the vineyards, Joyce's struggle is our solace. Note that Joyce believed that there was a correct order to the seven words and it was his job to stay with them until he recognized the correct order. He didn't turn in early: "To hell with it; they're my seven words!" Beliefs matter. Our current view encourages sloth. Telling judges that they won't find anything, we encourage them to give up the hard struggle to find correct answers. Telling Senators that judges aren't really discovering the law, but are rather deciding things based on their own information, expertise, and value choice, leads them to the obvious conclusion: the only thing that matters in confirmation hearings is the political bent of the nominee. That our current view becomes a destructive self-fulfilling prophecy (cynicism begetting cynicism), doesn't not mean that it is wrong. Practical Implications can never trump Cosmic Reality. Nonetheless, they can encourage re-examination of what we now take as obvious. My sense is, however, that the main arguments against re-examination are Practical Implications and politics. "If there is something, out-there, maybe we won't like it." Recall the fervor caused when soicobiologists argued that there is something called "human nature." But let's retreat to safer ground, Cosmic Reality. It's hard to question, much less give up, the obvious. We quickly, automatically, dismiss King; he didn't footnote and, when it comes to our own experience, "Sure, when I write it feels like discovery, and it feels like there are things 'out there' boxing me in, but I know better." (Richard Pryor, caught in the act with another woman, yells at his wife: "I am not having an affair; do you believe me or do you believe your lyin' eyes?") Perhaps, as you have gone along, you have been shoring up defenses to your "nothing out there" position. Grudgingly you concede that at least some novelists insist that they are discovering their stories and that, when you are writing yourself, you do seemed boxed in by standards of rhythm and relevance that seem to exist out there. To explain away this data, you may think, "Those things that seem to exist out there (stories, standards, the law), are really invented by us, based on our information, expertise, and value choice. But we aren't inventing them as we go along. We invented them a long time ago, buried them, as it were. Now, when we find them, it feels like discovery." Perhaps so. I note two things about this move. First, it denies radical relativism. If King had already invented his story at a subconscious level, then, when he begins digging, he isn't free to tell any story he wishes. He is boxed in by his own pre-existing creation. Second, that move requires an explanation as to how we go about inventing and burying things in the first place. While there may be an explanation, my guess would be that it is infinitely more complicated than the simple recognition that there are things that pre-date us. Why not accept the simpler explanation? Sometimes simple is hard to swallow. In Nick Hornby's, How To Be Good, the protagonist recounts the day her husband tells her a man laid hands upon him and his chronic pain disappeared. She asks, "So this guy's a healer. Like a faith healer." "Yeah." He thinks for a moment, as it trying to think of something that might make this easier for a couple of middle-class, university-educated literalists to understand--by which I mean, I suppose, that he would like to find something that makes it seem more difficult--less straightforward, more complicated, cleverer. It's not very hard to grasp that someone is a healer, after all: he touches you, you feel better, you go home. What is there to understand? It's just that everything else you have ever believed about life becomes compromised as a result.22Something a tad more academic? Thomas Kuhn reminds us that it is next to impossible to give up our well grounded beliefs, partly because, when we look around, everything we see supports them.23 5 to 4 decisions of the Supreme Court. Conflict in the Middle East. Cultural anthropology. We overlook things, or quickly discount things, that don't fit into our world view, things that suggest that maybe certain legal principles exist out there, such things as the wide consensus that people in like situations should be treated alike, that people should have the opportunity to tell their side of the story, and that babies should not be napalmed. (That one can point to some people who believe none of these things does not mean that there is no truth about them; maybe these people are simply wrong.) If we believed that things exist out there, our world would look different. Obviously it did for those judges who thought they were discovering the law: these folks may have been wrong, but they weren't idiots. What we would see would be a world that supports our view. Consensus would jump out and judicial disagreements would no longer be seen as proving "law doesn't exist, out there," but would be viewed as data in need of an explanation: "Given that judges discover the law, how can they discover different things?" Did someone do a clumsy job? A half-hearted job? Are we on the right track, not there yet, but getting there? When two scientists come to different conclusions--"Dinosaurs are related to lizards," "No, to birds"--we don't throw up our hands and give up on science and say that there is no truth about dinosaurs, only points of view. No, we get excited and want to do more science. Who is right? What explains the error?24 To conclude, a question of motivation. Stephen King is often asked: Do you do it for the money? "The answer is no. Don't now and never did. Yes, I've made a great deal of dough from my fiction, but I never set a single word down on paper with the thought of being paid for it. . . . I have written because it filled me up. I did it for the buzz."25 The buzz comes when we struggle, seldom successfully, to push ourselves beyond our own little worlds, beyond our expertise, information, and value choices, to discover the truth about Cujo, and to get those seven words right. As for me, even if I am unable to convince you of even the tiniest little piece of this, well and good. Buzz. I didn't write this just to persuade you; I did it for the buzz--as good a reason to write as most. Given that some of what we read and write is good, and some of it "in need of improvement," how are we to tell which is which? It seems that the lessons, "Don't overuse adverbs," cannot reside in the data itself: a long sentence with numerous adverbs does not announce itself as lousy and then tell us why. Reading it there is just something about it that we recognize as lousy. Maybe we already know the valuable lessons and, in reading and writing a lot, we merely recognize examples. I explore this notion further, at note 20, infra. 2. Jane Aiken, Provocateurs for Justice, 7 Clin. L. Rev. 287, 290 (2001). In this provocative article, Professor Aiken was not attempting to defend this proposition and I quote her simply because she stated the current view so succinctly. She is simply following in the path of Holmes who told us that the law is "not a brooding omnipresence in the sky." Southern Pac. Co. v. Jansen, 244 U.S. 205, 222 (J. Holmes, dissenting) (1916). Here Holmes was denying that there was heaven where federal judges might find common law not generated by state legal systems. Of course Holmes, like anyone who writes a great deal, was not 100% consistent. He concludes The Path of the Law, 10 Harv. L. Rev. 457, 478 (1897), with an inspirational crescendo: "It is through them (the general aspects of the law) that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of universal law." 3. Arthur Leff, Unspeakable Ethics, Unnatural Law, 1979 Duke L. J. 1229, 1249. Like everything he wrote, this is wonderful. He argues that there is nothing out there and that "it looks as if we are all we have" and that, "as things now stand, everything is up for grabs." Id. at 1249. Read it yourself. 4. Radical relativity would seem precluded by evolution: unless there was a general consensus on matters such as infanticide, we wouldn't have made it as far as we have. 5. As location doesn't matter, nor does cause. If there is something "out there" or "in here" that can offer us guidance, it matters not, at least for my purpose, whether this something is the result of evolution, God, or simply has always been there, like gravity. 6. The debate resonates with, or perhaps is merely a manifestation of, the Locke/Hobbes argument concerning whether the mind is, at birth, a tabula rasa. This epistemological debate is in part political: is man perfectible? Hobbes, and today's sociobiologists such a E.O. Wilson, would argue no--we have certain built in mechanisms that tend us toward selfishness and aggression. This leads to, or is the result of, a rather conservative political philosophy. Locke presents the more cheerful view: we are free to become what we will. For a recent contribution to the tabula rasa debate, one arguing the genes and evolution play a much bigger role in who we are and what we do, see Steven Pinker, THE BLANK SLATE: THE MODERN DENIAL OF HUMAN NATURE (Viking, 2002). In our field, the legal formalists would be more akin to the "discovery" model while the realists would favor the notion that everything is up for grabs. Again political leanings are implicated. According to Professor Morton Horowitz, the entire realist attack on formalism was politically motived: academics didn't like the conservative politics of cases like Lockner v. New York and, rather than taking the politics on directly, they attacked the notion that judges were simply applying the law. Morton Horwitz, Book Review: The Ages of American Law, 27 Buff. L. Rev. 47 (1978). The realists have obviously won; in our first week of law school, just after we are told where the bathrooms are, we are told: "Law is not discovered, it does not exist out there." Perhaps it's time to realize that this was a political ploy, not a way of life, and move on. As the deconstructionist movement has taught us, while "There's no there there" may be a great weapon, it doesn't make for a great plow. 7. One might argue that whatever novelists do has nothing to do with what judges (and other legal writers) do. "They entertain, we do serious stuff; and, as for King, I read only Proust." I think the enterprise is similar: finding (or imposing) order on a flux of ideas. King writes of the novelist's obligation to tell the truth (Note 1 at 120) and it is not intuitively obvious that telling the truth about Bush v. Gore is more difficult, more serious, than telling the truth about Cujo. 8. Id. at 163. 9. Mark Twain, "Author's Note," to PUDD'NHEAD WILSON 157 (Airmont Publishing, 1966). Twain then describes how, editing the book, he got rid of some of the characters who were stranded along the way. He had a couple of nasty boys go out in the back yard to stone a cat, only to fall into the well and drown. "I was going to drown some of the others, but I gave up on the idea . . . partly because it was not a large well and would not hold any more anyway." Id. at 160. 10. I simply love this image. On the last day of class, I read it to my students and then add, "You will start with diploma in your hand walking across a stage. You will know you have stated a career but won't know what career it is." Anyway, the cite: "Writers on Writing, An Interview with Ian McEwan," New York Times, April 23, 2002, p. B1. 11. King, supra note 1, at 159. 12. Id. at 164. Not all authors work this way. Some are much more in control of their material, knowing at all times where they are going. For example, Edgar Allen Poe writes A skillful literary artist . . . having conceived, with deliberate care, a certain unique or single effect to be wrought out, he then invents such incidents . . . as may best a him in establishing this preconceived effect. If his very initial sentence tends not to the outbringing of this effect, then he has failed in his first step. In the whole composition there should be no word written, of which the tendency, direct or indirect, is not to the one pre-established design.Edgar Allen Poe, Review of Hawthrone--Twice-Told Tales, Graham's Magazine, May 1842, pp. 298-300 <http://www.eapoe.org/works/criticsm/gm542hn1.htm>. This quote does not fit into my pre-established design, but, rather than cut it, I did the next best thing, I footnoted it. However, Poe was discussing "tales"--works that can be read at one sitting. He preferred these to novels as novels are too long to sustain such a focused effect. 13. "[A] majority of the Supreme Court's opinions [are] being written by law clerks; today, a judge written opinion, at any level of the American judiciary, is rare." Richard Posner, OVERCOMING LAW 57 (Harvard University Press, 1995). 14. King, supra note 1, at 197. 15. Gary Bellow, my mentor, told me, "Do your own drafting. You will see things from the viewpoint of your client and will pick up things you would otherwise miss." This strikes me as very sound advice, despite the rule of interpretation that ambiguities should be resolved against the drafter. This rule reflects a fundamental truth about writing: it forces one to think long and hard and, almost always, that's for the best. 16. There is an apparent tension between this argument, "Who writes matters," and the overall assertion that law can be discovered: it would seem that everyone should discover the same thing. My facile response is that scientists don't always have the same take on what they find and that some are better than others. My more reflective response is that when we say that law can be discovered we are not saying specific rules can be discovered, but rather that general principles can be, principles that can guide us, tell us when we are on the right track, and tell us when we are wrong. There is room for argument but not room for all arguments. 17. King, supra note 1, at 163. 18. Jean Piaget, THE MORAL JUDGMENT OF THE CHILD (First Free Press pb ed., 1965)(1948)(Majorie Gabain trans.). Piaget asked children questions. To get at the discovery/memory issue, he would ask the children if they could play marbles differently and, when they came up with a different approach, he would ask them if their way was a new rule. Younger children said no, that it had always been a rule, first made up, years and years ago, by the "Gentlemen of the Commune." (This is a marvelous book.) To the child . . . to invent means almost the same thing as to discover an eternal and preexisting reality in oneself. Or to put it more simply, the child cannot differentiate as we do between the activity which consists of inventing something new and that which consists in remembering the past . . . . For the child, as for Plato, intellectual creation merges into reminiscence.19. Stephen King, CUJO 309 (Viking Press, Book Club ed., 1981). 20. This in not a novel idea. Socrates, of course, believed that good teaching consists of drawing from the students what they already know but don't know they know. Fast forward to our own time, Arthur Kopit, director of the Playwrights's Workshop in New York, advises young writers: "Don't write about what you know, write about what you didn't know you knew." "Where New Playwrights Are Heard," New York Times, November 28, 2002, at B1. In Robert M. Pirsig's Zen and the Art of Motorcycle Maintenance (Morrow Quill, 1979)(1974), a college English professor is asked by his students to tell them what constitutes good writing and, more generally, what constitutes Quality. Before one can define good writing, he says, one must recognize good writing. Then he tells the students, much to their consternation, that they already have the ability to recognize good writing, even though they may not realize they do. To prove his point, he would read four student papers aloud and then ask the students to rate them, on a slip of paper, in order of Quality. He would do so likewise. He found that usually everyone rated the papers in the same order. He summed up his belief by writing on the board: "Quality is a characteristic of thought and statement that is recognized by a non-thinking process. Because definitions are a product of rigid, formal thinking, Quality cannot be defined. But even though Quality cannot be defined, you know what Quality is!" Id. at 206 (Emphasis in original). Teaching legal writing I have tried this approach with good results: "Which was the best answer? Okay, it was B; we are all agreed. Now let's go back and see why B was better than A and see how we can apply these insights to our own writing." See Kenney Hegland, INTRODUCTION TO THE STUDY AND PRACTICE OF LAW 154-170 (West Publishing, 3rd ed., 2000). 21. King, supra note 1, at 145. This story is great solace to those of us who revise and revise. A few years ago I was writing something on legal writing and, after my student assistant has corrected the umpteenth revision, she remarked, "You really should have something in there about how to stop." (Or should that read: "something in there about when to stop"?) 22. Nick Hornby, HOW TO BE GOOD 84 (Riverhead Books, 2002)(2001). 23. See Thomas Kuhn, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS (University of Chicago Press, 1962). We also tend not even to see anomalies. Kuhn recounts an experiment by Jerome Bruner. Undergraduates were asked to identify playing cards as someone flipped them. There were anomalous cards, such as a red three of spades. Often the students would not recognize the anomaly, calling the card either the three of hearts or the three of spades. Slowing the rate of flip caused great consternation, one student finally shouting, "I can't make the suit out, whatever it is. It didn't even look like a card that time. I don't know what color it is nor or whether it's a spade or a heart. I'm not even sure now what a spade looks like. My God!" Id. at 63-64. 24. We have a problem with science. While we believe there is nothing out there when it comes to law, we believe that is something out there when it comes to science. One way to deal with this inconsistency is to claim that there isn't any truth about science either; that is all about shifting paradigms. The more traditional move is the say that law and science are different. When pushed to defend that assertion, we reply, with increasing intensely and conviction: "Science is objective and law isn't!" If one then asks, "Sez who?" it gets ugly. 25. King, supra note 1, at 248-49. King adds that if you do it for the buzz, you can do it forever. This raises an interesting point for law school hiring committees. If they are concerned about academic "burnout," maybe they should stop asking candidates to describe their scholarly agenda (their plots), but rather ask them about the stories they wrote in high school, about their early rejection slips. King makes another point that may throw light on academic "burnout." "[If] the work starts to feel like work, it is the smooch of death. Writing is at its best--always, always, always--when it is a kind of inspired play for the writer." Id. at 153. Perhaps, with scholarly agendas (plots) and with detailed tenure rules, replete with faceless, frowning, Outside Evaluators, we have turned inspired play into work. |
