I would like to add to this discussion by sharing the comments of my brother, Jim Fallone, on the foregoing debate.  I am aware, of course, of the popular movie Adaptation, “co-written” by screenwriter Charlie Kaufman and his fictitious brother Donald.  In that movie, Charlie Kaufman takes the screenwriting process itself as the film’s subject, and plays with post-modern theories of authorship.  Let me assure you that, unlike Donald Kaufman, Jim Fallone is a real person.  Moreover, Jim Fallone has over 20 years of experience as an executive in the publishing industry, currently with Andrews McMeel Publishing in Kansas City, and is a published illustrator.  While this experience makes him dependent upon copyright law for his meal ticket, it also gives him some valuable insights into the creation and marketing of literary characters.

What follows, then, are the comments of Jim Fallone:

Ed, to begin with, you are fundamentally wrong (as is Professor Hylton).

It is true that The Catcher in the Rye can be viewed as art and as such can be viewed as a gift in the Lewis Hyde tradition.  However, there are moral and cultural value rules that separate a gift from usury, and that line of separation is not clearly defined and may vary from culture to culture. These rules are directly related to the broader context that exists within the society at the time.

When Cervantes wrote Don Quixote, authors of fictions and stories rarely got paid. It was the printer who tended to make the money, both by pirating printings of the original work as well and by commissioning and even writing many of the sequels to Quixote. You can argue that economically Cervantes was much like today’s blogger or fan fiction writer. The many fake sequels became viral marketing that built demand for the “official” sequel. This all helped to build Quixote awareness and to strengthen its brand.

But this is not the same context with which we view The Catcher in the Rye. This latter book is a successful and a real and viable commercial revenue generator. It is a business, and the livelihood of the author is directly dependent on the book’s own reputation as literature—as well as the mystery surrounding the author and his purposely limited output. Additionally the work was created as a commercial venture. It was intended as a commodity. It was created and sold for a price and intended to be resold for a price to the general public.

Cervantes we see today as an artist who created something new and who never received much money or benefit from it.  However, at the time of his book’s creation that is what he desperately sought.  Don Quixote was immensely successful but, because there were no laws to protect Cervantes, everyone but the author cashed in (both on the original and its varied unauthorized sequels). Don Quixote’s value as literature as we understand it today was only achieved after the author’s death. During his lifetime, it was viewed as the literary equivalent of Harry Potter, making the author’s poverty all the more tragic.

Professor Hylton chose Edward Bellamy’s 1888 Utopian novel Looking Backward, 2000-1887 to focus his comparison on. His first mistake was using a Utopian novel — there are no good Utopian novels unless you count books like 1984, Fahrenheit 451, and Brave New World which are about how there are no good utopias. Secondly Bellamy’s book was a parable for a political and philosophical movement. Each sequel was addressing the socialist model which was the protagonist. The characters and back story of the book were less than secondary and little more than clip art on a PowerPoint presentation. The very nature of the book was to prompt philosophical discourse on the author’s political views.

Looking Backward was successful. It made the author wealthy and had a measurable value as a commodity, but much of the author’s revenue actually came from the lecture circuit. The failure here is that there was no real intellectual property of value. The main character of the book– Julian West– held no exploitable value and the only character of any value was Bellamy’s socialist model. Bellamy was not Edgar Rice Burroughs, and the possibility of writing Julian West’s Adventures on Mars was not jeopardized by another author beating Bellamy to the punch. There would never be Julian West action figures. The cardboard characters of Looking Backward were proxies for the reader to observe the author’s socialist utopia. The character was merely a device.

In the case of Salinger– again looking beyond the words on the page– a significant reason for the work’s reputation and value as art is precisely the unusual absence of further exploration and exploitation. The mystery surrounding the reclusive author and the unknown future of Holden Caulfield are part of the whole that is The Catcher in the Rye. The value of the novel’s theme of a boy’s alienation and angst about the future are all the more poignant and urgent precisely because we don’t know what becomes of him. This allows us all to identify with Holden and use him as a prism for our own awkward adolescence.

The Catcher in the Rye should be considered a great work of literature and art in the same sense that Quixote is art, but the context when it was published and the marketplace and nature of intellectual property at the time of its publication make all of the difference. Salinger’s work is great literature, but it is also incredibly successful and it generates significant income for both the author and the publisher. Unlike Looking Backward, the measure of value inherent in the property and characters of The Catcher in the Rye are in part derived from the rarity of its exploitation and the intentionally unknown future of the main character Holden Caulfield.

Holden has become a recognizable likeness much like Batman, Homer Simpson, Harry Potter or Luke Skywalker. Permitting works by any other author that created an unauthorized canon to the world that Salinger created in The Catcher in the Rye would be the equivalent of writing a sequel to Star Wars in which Luke has a previously unknown bastard child with Leia, who subsequently becomes a fat alcoholic fascist ruler of the Empire and dooms the rebels to continued mediocrity for generations. There is no way that LucasFilm would allow their carefully created and detailed universe to be devalued, thereby jeopardizing the reputation of its brand.

This value goes beyond the movies to the action figures and lunch boxes. Both the massive world of Star Wars and the tight and reclusive world of The Catcher in the Rye rely upon the integrity of their vision and on the property’s reputation and myth for a major portion of their value. It’s not just telling a new story about Luke that is at issue, it is the creation of new characters and their designation as Star Wars characters. In the current context of publishing and retailing, it damages The Catcher in the Rye’s potential place in school adoption programs across the country if we permit others to add to the canon or to create confusion as to what should be in the canon.

The current system of publishing allows the good to rise and to be licensed and exploited to its fullest.  The bad will go out of print, where the rights will revert and eventually become public domain. Try to find Looking Backward in any Barnes & Noble book store today. The author made lots of money and the book was a bestseller, but most of the general public today couldn’t tell you who Edward Bellamy was.  Four hundred years from now, The Catcher in the Rye will still be considered a classic and taught alongside Don Quixote.  Allow Salinger the protection to insure that he receives the compensation for his work that Cervantes never had. Once Salinger has been dead long enough, and only then, the work will revert to public domain.

Until the current publishing model ceases to exist (and if you look at the music industry, it may not be long) there is no need to change what has worked just fine. No great work of creation is being inhibited or restrained by the copyright laws. The author of a sequel to The Catcher in the Rye had only monetary gain as a goal. If he has some great scholarly or critical contribution to make, there already exist fair use precedents that adequately allow for his ideas to be communicated. The desire to communicate these ideas as an organic continuation of Salinger’s work is the basest form of usury and as far removed from a gift as one can get.

Some law professors (and I do not intend to include my colleagues in this group) respond to these conflicted feelings by endeavoring to reduce the stress of law school.  They reject the Socratic method as unnecessarily antagonistic and outdated.  They reduce the workload, and their expectations of the students, in order to leave more room in the students’ lives for the “real world.”  They may even take a rather forgiving view of the grading process.  Their intention is to make the current generation of law students happier during their law school experience than these professors remember being during their own.

The odd thing is that, when law students are provided with this de-stressed version of law school, I have found them to be even less satisfied with their law school experience.  Law students come to law school expecting to be challenged.  They want to have their abilities tested, and even found wanting on occasion.  In some sense, when students find the law school experience to be too easy, the law school experience loses meaning for them.

I believe that it useful for both law professors and law students to view law school as the sort of “hero’s journey” described by the great professor of comparative mythology Joseph Campbell.  For Campbell, all myth serves an important role as a pathway to the understanding of the self.  In particular, mythology serves to help each individual understand their place in the world and in society.  The extended adolescence of modern life (children living with their parents until age 18 or older) makes it essential that the broader society provide rituals or ceremonies that mark the end of dependency and the beginning of the adult society’s acceptance of the adolescent as a fully participating member.  Without such clear markers on the path of self-development, modern man can experience feelings of alienation and self-doubt that were unknown in more primitive cultures.       

In his book The Hero With a Thousand Faces, Campbell describes the archetypical “hero’s journey” that he saw reflected again and again in world mythology as a metaphor for self-enlightenment.  First, an Everyman (or Everywoman) is called to leave their ordinary life and embark on a great adventure.  Then, the hero must journey into a dark world where he must endure various trials and tribulations.  Along the journey, the hero will encounter a teacher who will give instruction in the new skills that the hero needs in order to succeed.  At this point, the hero comes to fully understand, for the first time, the ultimate goal of his quest.  Armed with new skills and knowledge, the hero continues on the journey, facing challenges that push the hero’s endurance to the limit.  Finally, the hero reaches the ultimate goal, and finds that he has been changed by the journey.  The hero now returns to the everyday world, bringing back what he has learned in order to benefit the broader society.

Some critics objected that Campbell’s archetypical journey was so generic as to be meaningless.  The discovery of Joseph Campbell by George Lucas, who wrote Star Wars in a conscious attempt to apply Campbell’s theories, and by other filmmakers, has rendered the “hero’s journey” so familiar to moviegoers that it has become ubiquitous and therefore less powerful.  Nonetheless, there is something in Campbell’s theories that resonates.

We all see ourselves as the hero in our life’s journey.  We want to overcome obstacles.  We seek to acquire new skills and knowledge that will allow us to achieve our goals.  Above all, we desire some sort of tangible sign that we have been accepted by “adult” society.  For some (not all) students, a rigorous law school experience provides a path to accomplish these objectives.  Just don’t call me “Yoda.”

To those who worry that the stress and crushing workload of a traditional legal education can make students unhappy, I would quote the words of Joseph Campbell.  When his students asked, “what is the secret of happiness?,” Campbell replied, “follow your bliss.”  Happiness does not come from the ease with which you navigate through life.  Happiness comes from doing that which makes you happy.  The practice of law can be very difficult, but if you accept the stress and long hours as the cost of spending your career pursuing justice and stimulating your intellect, you will be very happy indeed.

But I found the latter error intriguing. Here I was, ostensibly the “author” of a post regretting “dominant ideological prescriptions related to, respectively, autonomous individualism and the bourgeois market economy.” It was as if someone had replaced my bedside Edmund Burke with Jean-Paul Sartre.

But here’s the thing. I do agree – in a sense – with David’s point.

If, in the terms David invokes, the author is part of a “collective subject “whose work is “trans-individual” in that it is permeated by others in its creation, then it seems equally probable that it is permeable in the ways in which it will be understood. This should be so quite apart from whether someone else appropriates parts of the work and turns it to a different purpose. (I once heard Rage Against the Machine used as part of a presentation at a corporate board meeting.) The “established forms” and “reigning sentiments” that the author invokes may, even because of the creativity with which he invokes them, provoke responses other than those he anticipated.

Of course, many works benefit from the contribution of others and all authors work in a social context that contributes to what they say and how it is read. But beyond that, an author – or, for that matter, a musicial or visual artist – loses control of the meaning of her published work. Others may understand it or use it in ways that she never intended, e.g., Ronald Reagan’s use of Bruce Springsteen’s “Born In the USA” as a patriotic anthem rather than an expression of irony and anger.

I don’t pretend to know what intellectual property law says about this. One can’t have a property interest in how someone perceives a work although one can, I suppose, have a property interest in controlling its use and exercise that interest in a way that hampers the manner in which the work itself can be used to furthers this unintended and undesired understanding. I guess that implicates, among other things, the concept of “fair use” and I have nothing to add to that.

But, as a matter of interpretation, I don’t think that there is anything wrong with reading a work or hearing a song in a way that its creator did not intend and, in fact, may categorically reject. My mother was a painter who always told me that a work of art (including hers) was not limited to an artist’s intent or interpretation.

On my personal blog, I occasionally post Sunday music videos (generally live performances) often around a theme and sometimes in support of some political or – more often – philosophical observation. (This post on theodicy was in honor of the beginning of my Law & Theology seminar.) Once in a while, a commenter, in high dudgeon, will say that Thom Yorke never meant that or Dylan repudiated his Christianity. 

I don’t care. They can point brilliantly to things in the world. But I get to say what it means to me.

Mom would be proud.

The exchange rekindled for me the intellectual question of how to best understand what an “author” is.  The notion of an “author” in modern western culture is a weighty one, carrying with it some sense of origination.  It connotes more than “writer,” which is a less prestigious characterization that goes primarily to a particular activity.  We customarily assume “authors” are intense and even tortured souls heroically working alone.  We also sometimes assume that their chief incentive must and should be monetary enrichment.  These assumptions grow out of dominant ideological prescriptions related to, respectively, autonomous individualism and the bourgeois market economy.

I think it is better to conceive of an “author” as socially constituted. 

This is obviously the case when two or more people write a work together or when manuscript reviewers, editors, or critics play major roles in the composition of a work.  In addition, according to cultural studies commentator Lucien Goldmann, we should recognize the manner in which a purported “author” belongs to a “collective subject.”  The “author” in this conceptualization not only consciously collaborates but also functions in a fundamentally trans-individual way.  He or she works in a set of social relations and draws on established forms, reigning sentiments, and anticipated responses. 

If we appreciate the way an “author” is socially constituted, we might actually enrich the experience of authorship.  As Ed Fallone reminded us in one his posts from last week, the rampant commodification of our era often has the effect of alienating a person from the fruits of his or her labor.  This is as true for a person who writes a novel (or a sequel . . .) as it is for somebody building a birdcage.  Indeed, many “authors” eventually become so alienated that they disavow their works or even urge the destruction of their unpublished manuscripts.  Recognizing the truly social in individual authorship can help protect the beauty, integrity, and empowerment of creative labor.

Some observers of the case have focused on its unusual grant of the plaintiff’s request for an injunction — this is a rare instance of U.S. law allowing a prior restraint on publication.  Other observers have debated the intersection of First Amendment rights and copyright protections implicated by the lawsuit.  In contrast, when I heard about the case, my thoughts turned to Don Quixote.

 Through end of the sixteenth century and into the beginning of the seventeenth century, the appropriation of characters and plots from earlier authors was a common literary practice.  In England, Shakespeare wrote plays that retold stories that had been told by other playwrights, and other authors in turn recycled Shakespeare’s plots.  Several different versions of Hamlet entertained Elizabethan audiences, although I believe that Shakespeare’s is the only version that survives to our day.

At the same time, in Spain, multiple authors were publishing books that detailed the adventures of the same characters.  Particularly popular were books about Tirant Lo Blanch, a brave knight who rescued fair maidens and battled horrible beasts.  There was no legal concept of ownership of this character in Spain, just as in England there was no concept that Shakespeare “owned” the character of Hamlet.

The first copyright laws date only to 1518, and they took the form of a monopoly that granted exclusive rights to a printer to publish a particular text.  It appears that copyright law was invented as a way of protecting the nascent printing industry.  It originally provided no legal protection to authors at all.  However, that would soon change.

 The novel Don Quixote was published in 1605 by Miguel Cervantes.  It introduced two iconic characters: a comical old man, who thinks himself a chivalrous knight errant, and his humble sidekick Sancho Panza.  It also slyly critiqued a social order in Spain that was dominated by both unproductive nobles and a repressive Catholic clergy.  The book was a huge success, and ten years later, in 1615, Cervantes published Don Quixote Part Two (thus proving that Hollywood did not invent the sequel).

One of the most famous parts of Don Quixote Part Two is its prologue, written in Cervantes’ own voice, which contains a vicious attack on a certain Alonso Fernandez de Avellaneda.  It seems that in the ten year interval between the publication of Parts One and Two, Avellaneda (which is probably a pseudonym) had published his own continuation of the adventures of Don Quixote and Sancho Panza.  In his prologue to Part Two, Cervantes insults Avellaneda without mercy, comparing him, for example, to a madman who commits imaginative and distasteful acts on the rear ends of dogs.

 The brutality of Cervantes’ verbal attack, and its literary quality, transformed Avellaneda’s own version of Don Quixote into an obscure historical footnote, forgotten by all but the most determined students of Spanish literature.  Ironically, a close reading of Avellaneda’s much ridiculed work demonstrates that it has real literary merit in its own right (as discussed here by my former Professor James Iffland of Boston University).  In particular, Avellanda’s version patronizes the character of Don Quixote and treats him as clearly insane, thus impliedly rehabilitating the portrayal of the existing social order in the first book and defending it from a damaging critic.  

Miguel Cervantes’ written attack on Avellanda’s use of his characters was unprecedented because it portrayed the derivative work as an intentional injury to the original author.  Moreover, the severity of Cervantes’ indignation suggested to the reading public that the harm Cervantes had suffered was very real.  People began to think about the rights of authors to control the use of their characters in a different way.  In 1709, the Statute of (Queen) Anne for the first time gave authors a legal monopoly on the reproduction of their work for a set period of years.  Thus was born modern copyright law.

So what is wrong with giving authors the right to control the use of their characters?  Copyright law is intended to provide an economic reward to the original creator, by granting him the legal right to prevent the use of his characters in ways that might diminish their value.  However, copyright law comes with an associated cost.  The fact that Colting’s novel may never be published in the United States illustrates that cost.  All of us bear the opportunity cost of all the derivative acts of creation that will never take place as a result of granting copyright protection to the original author.

It is true that some derivative uses of someone else’s characters are allowed, notwithstanding copyright protection.  Parodies and critical commentaries using established characters are permitted under the First Amendment.  However, this seems like an almost arbitrary exception to the original creator’s exclusive right to control his characters.  Other derivative uses of an established character can enrich our common culture as much as a parody or a critical analysis.

Why allow someone else to write a parody of The Catcher in the Rye, but prohibit a Holden Caufield sequel?  The sequel might be puerile trash, but it just might be a masterpiece in its own right.  Why not allow a third author to write a Holden Caufield opera?  Or a ballet?  I doubt that people would stop reading The Catcher in the Rye.  In fact, the sales of Salinger’s novel might increase.

One answer is that it is unfair for others to use Mr. Salinger’s character in order to make a profit for themselves.  But existing law allows some exceptions for parodies and critical commentaries that can earn a profit for their authors.  In addition, the law now extends the life of copyright protection beyond the life of the creator.  In light of this fact, it is difficult to argue that the protection of the creator’s exclusive ability to enjoy the monetary benefits flowing from his creation is the primary concern of the law.  

Every act of creation should be viewed as a gift from one person to all people.  Should J.D. Salinger have the right to gift our culture with an iconic character, and at the same time claim the ability to dictate how this gift can be used?  Even if his gift is misused or abused by others, Salinger has no moral basis to complain.  Arnold Weinstein, a professor of comparative literature at Brown University, was quoted as follows in a Wall Street Journal article about the case:

 The concept of authorship as a controlling authority is intellectually bogus.  Literature constantly reworks older things – authors send their characters out into the world.

It is only if we view the act of creation as a “sale” from the author to the rest of us that it makes sense to allow the author to place conditions on the use of his creation.

This is the crux of the problem.  Over time, the existence of copyright law has commodified the act of creation.  It is no coincidence that this process began in 1518 with the technological innovation of the printing press.  The commodification process accelerates with each new technological advance.

In our digital age, every consumer can purchase and enjoy a vast universe of cultural artifacts at the press of a button.  However, rarely do we spend any of our time engaged in the act of creation itself.  Most of us spend little or no time each day playing music, telling stories, or painting pictures.  Why should we bother, when it is far more convenient to purchase the creations of others?  The irony is that we are increasingly surrounded by our culture, but at the same time we are increasingly alienated from it.  By treating the creative act as a commodity, copyright law has facilitated this trend.

Today, our children are taught beginning in elementary school that it is illegal to use cartoon characters without first obtaining a license.  When my son was in first grade, I had to assure him that it was not against the law for him to draw pictures of Spider Man with his crayons.  I have no doubt that the holders of copyright in our country, the large media corporations that benefit from the commodification process, are behind the effort to encourage teachers to adopt a curriculum that exposes our children to the fundamentals of copyright law.

We have forgotten that our culture belongs to all of us.  We mistakenly think of “culture” in historical terms, and confine it to dusty books and ancient musical recordings that have “aged out” of copyright protection.  In reality, a culture is how a civilization defines itself in the present day.  We define our place in our contemporary world through stories, song and dance.

The key to profit in a service economy is to convince the public to pay for something that they used to expect to get for free.  We didn’t always pay such a high price for our culture.  The “fair use doctrine” once permitted a broad use of another author’s creations so long as no monetary benefit was received.  The initial success of Salinger’s lawsuit demonstrates how narrow the fair use doctrine has become.  This exception to copyright protection has been under a sustained assault by copyright holders for decades.  Like the western prairie before it, the “public domain” is slowly being fenced in and parceled out to the highest bidder.     

It doesn’t have to be this way.  We should eliminate copyright protection for literary characters.  If J.D. Salinger feels that his beloved character has been ill treated by others, then he can always respond in the same way as Miquel Cervantes: he can publish his own sequel.  Like Cervantes, Salinger can even include a vituperative attack on the upstart artist who has offended his creation.

If the public sees no merit in Colting’s creation, then Colting’s book will soon be forgotten.  However, let the rest of us decide for ourselves whether there is real merit in Colting’s creation.  Copyright law, as it is now structured, allows one artist to deny each and every one of us the possibility of other worthy works of art.

A. Oliver Wendell Holmes, Sr. and Jr.: A first generation poet; a second generation jurist. I was rooting around in the attic, sorting out books for donation to a local charity, and came across my husband’s grandmother’s 1952 edition of The Family Book of Best Loved Poems, which randomly flipped open to “The Last Leaf” by Oliver Wendell Holmes, Sr. I read it and was reflective about the beautiful minds that manifested over the course of two lifetimes, father and son, one as a physician and poet and one as a jurist, each achieving excellence in their unique ways. 

The Last Leaf

I saw him once before,

As he passed by the door,

And again

The pavement stones resound,

As he totters o’er the ground

With his cane.

They say that in his prime,

Ere the pruning-knife of Time

Cut him down,

Not a better man was found

By the Crier on his round

Through the town.

But now he walks the streets,

And he looks at all he meets

Sad and wan,

And he shakes his feeble head,

That it seems as if he said,

“They are gone!”

The mossy marbles rest

On the lips that he has prest

In their bloom,

And the names he loved to hear

Have been carved for many a year

On the tomb.

My grandmamma has said–

Poor old lady, she is dead

Long ago–

That he had a Roman nose,

And his cheek was like a rose

In the snow;

But now his nose is thin,

And it rests upon his chin

Like a staff,

And a crook is in his back,

And a melancholy crack

In his laugh.

I know it is a sin

For me to sit and grin

At him here;

But the old three-cornered hat,

And the breeches, and all that,

Are so queer!

And if I should live to be

The last leaf upon the tree

In the spring,

Let them smile, as I do now,

At the old forsaken bough

Where I cling.

Two evenings later, the ABA Journal arrived in the mail and I found on its last page a picture from the Wisconsin Historical Society and an associated discussion of the overturning of the Holmes, Jr. court case of 1927, Buck v. Bell, which allowed state laws on forced sterilization to proliferate for a significant period of American history thereafter. For those who may not know, Buck v. Bell is the case from which we receive the oft-quoted phrase of Oliver Wendell Holmes, Jr. “three generations of imbeciles is enough.”

How curious that those words flowed from the pen of the son of the author of “The Last Leaf.” For background on Holmes, Sr. as a poet, I researched at ibiblio, and found the following reflection of Holmes himself on his poem to his publishers three decades later: “I have lasted long enough to serve as an illustration of my own poem. I am one of the very last of the leaves which still cling to the bough of life that budded in the spring of the nineteenth century. The days of my years are threescore and twenty, and I am almost half way up the steep incline which leads me toward the base of the new century so near to which I have already climbed.”

How can these seemingly opposing sides of a father and son be reconciled? By this I mean that one side of the younger Holmes appears to endorse a model of justice in Buck v. Bell that “weeds out” the bad seeds of humanity and gives the decision-making authority for making that determination to mortal beings in power. Contrast this with the poetic voice of Holmes, Sr., which reflects instead an acceptance of the process of aging, and an understanding that life encompasses new and old, wholeness and brokenness, mastery and infirmity, all within one being over the course of the years given to us, and all to be experienced without praise or blame, without judgment from self or from others.

To me, I think both men would have struggled with integrating these aspects as both being voices of wisdom and justice; left-brained legalists, and the right-brained poets, in the era in which they lived. The jurist Holmes lived at a time when black and white decision making was the embraced model of “enacting” justice. There was a right and a wrong. To create justice, eliminate the bad and embrace the good. According to the ABA Journal note, author George Hodak states that after Holmes’ opinion issued “over the next 15 years, a politically powerful American eugenics movement blossomed and, armed with the court’s acquiescence, pressed more than half the states to pass forced sterilization laws that grew increasingly broad in scope.”

Justice was not so much to be restored, as it was to be created, and this creation involved excluding and eliminating what was not desired, from being acknowledged in our pasts, existing in our present, or being embraced in our future. Hence, “three generations of imbeciles are enough.” This was truly an era where the symbol of the law was the scales of justice, dualism, black and white, good and bad, and right and wrong. I do think there was a time when this model of justice was delivered effectively and humanely, to the best of the abilities of generations of attorneys and justices and workers in our systems on behalf of justice. I think, however, our knowledge and awareness illustrate that the time for that paradigm is ending.

B. A new symbolism. The same symbol appeared repeated times to me in the past two weeks in subtle and overt ways. The symbol is a triangle surrounded by a circle. My research on it led me home to Marquette, interestingly enough, and to the logo of Marquette’s Restorative Justice Initiative, and a recent post about The Healing Circle, and the wonderful recent work that Professor Janine Geske references in her blog post, “Repairing the Harm from Clergy Sex Abuse.” She speaks of the use of the healing circle, and says, “These circles succeed in getting everyone present to deeply listen to each other and provide a safe environment in which to speak from the heart. I have participated in hundreds of circles through the years and still am amazed at what I learn from people through this process.” As Archbishop Dolan has often remarked in his words about the struggle of the church to heal from this particular crisis, there will be no true healing without acknowledging the harm that has been done, and it is inappropriate and counter-productive to attempt to “get over it” in any manner that is dismissive and lacking in true respect.

If justice and healing are to be embraced as one and the same, as I believe they are, healing must come with the courage to bear the knowledge of the harms of the past. That knowledge, and those details, must be given a voice in that safe space of sharing, the circle. What is not known, not spoken, left unvoiced and buried, cannot be forgiven, and what is not forgiven cannot be made whole. Only through wholeness can the courage and power for positive change come for the sustainable future. This is a shift in the way justice is seen. It is not black and white, as I think it was expected to be in the generation and the Supreme Court of Oliver Wendell Holmes, Jr. I also believe we do not create justice, we restore it, and we restore it because “justice” is not a man-made concept. Scales are man-made; circles, in contrast, are all around us in nature.

We can never eliminate the shadow of injustice. We can only change the composition of the elements in the circles of our communities, our families, and ourselves, so that the momentum for justice, peace, honor, integrity, and healing or restoration outweighs the recognition of and dwelling within past harms. In my mind, there is no coincidence that symbols for recycling and sustainable energy share the visual elements of the triangle within the circle, the trinity.  Are we moving, as a culture, from a view of the scales of justice to the circle of justice? I think we are.

C. Poetry and Restorative Justice; a golden horse and a little girl.

Professor Jessica Slavin has written a wonderful post on lawyers and poets, in which she references a website that takes poet/lawyers into even greater depth: Professor Elkins’ “Strangers to Us All.”

There is much connection between the poetic voice generally and the Healing Circle dynamic. In fact, current training on peacemaking circles uses poetry as an entry to the peacemaking process. For instance, an upcoming training at the Canadian School for Peacemaking in Winnipeg has a course called Poets, Prophets, and the Music of Social Justice, exploring the relationship between worship and social justice (the link to that training is on Marquette’s Restorative Justice Initiative homepage).

Now more than ever, poets make a contribution to the evolution of a new paradigm of justice for the next generation. Poets speak with the voice of elegy, the voice of history and the soul of memory. The healing of our broken systems of justice, based on old hierarchies and power systems of dominance and duality, is being replaced by circles of healing, in which the shadows of the past are recognized and given the space of safety in which they can be truly healed, for the long term. There is no coincidence that restorative justice is blossoming in our law schools and training for the future generation of peace-bringers, and further no coincidence that the role of poetry and the recognition of poetic voice is often a key element of training for “peacemaking circles” and circles of healing that have the goal of restoring balance to broken communities, families, and individuals. I would like the think that both of the Holmes’, the poet and the jurist, would have seen this as a positive evolution.

My third experience comes from my own right-brained writing. I sometimes write some poetry, when emotion moves me to a place where the page needs more than professional syntax to hear what my heart says needs to be said. I volunteer in an equestrian therapy program for children with physical, cognitive, and emotional challenges. Some of the children in our program have significant histories of abuse. Healing happens, with the help of a horse. My bearing witness to that is sometimes why I think I am there, and so I occasionally write. This poem completed my own triad of recent reflections in a way that I decided to include it here.

Karen’s Shirt

Her T-shirt was white, with a black script heart

Centered on her heart, on her

Slim frame, lean brown arms, bony shoulders,

The lean and strange grace of youth,

More motion and spirit than flesh and bone to cover-

The shirt white, with green and blue hearts offsetting,

More script filling up the page of her body.

Golden glitter with the black curls of the words

Her voice, absent.

Her eyes huge and hazel.

They too speak without words.

Our synchronicity is in the rhythm of knowing when

It is time to walk, to trot; and today we just walk, mostly, Breathe out, breathe in,

The swallows slice through the air,

The swish of tail, the quick truth of the breeze-

Memory remains, but there is also just now.

The dust in the arena blows in whorls, like roses round.

We walk, I at her side on the ground, silent as well.

Gold-speckled dust, golden horse,

A glisten of horse sweat, smell of honey.

A glint of sun upon us

As we round the barrel at a walk at the

Far end, looking out the open west door of the barn,

The sun and the wind unify our motion,

Eden awash on us for a moment.

Lit script on her body-

“I Love Justice” on a white T-shirt in black gold glitter script,

Repeated over and over,

Written on the Rosetta stone of her heart.

The moment of the sun and the Russian olive blossom breath of wind-

We three; horse, rider, and companion,

We walk in the shadow and in the expectation

That we ride through a cycle In which we will remember the light and the breath of God’s world

Long after we have passed beyond the shadow

Which we have carried, and

Through which we pass in memoriam;

Circling on a horse around blue barrels

For honor, for memory, for wholeness

And this ordinary holiness

Ever after.

April is the cruelest month, breeding

Lilacs out of the dead land, mixing

Memory and desire, stirring

Dull roots with spring rain.

Winter kept us warm, covering

Earth in forgetful snow, feeding

A little life with dried tubers.

Herman Melville’s novella “Billy Budd” has firmly secured its place in the law and literature canon, but a different law-related work by Melville is my favorite.  Over the last twenty-five years or so I have almost annually read “Bartleby the Scrivener – A Story of Wall Street” (1853), being moved by it more each time.

The narrator of the story is a humane, tolerant lawyer who was formerly a Master in Chancery and who now presides over a small Wall Street law office.  His employees include an office boy and three scriveners, the most eccentric of whom is Bartleby.  Demonstrating a certain “pallid haughtiness,” the latter at first refuses to complete small assignments and then over time declines to do anything at all.  His signature statement when asked to copy a legal document, to run an errand, or – ultimately – to seek work elsewhere is “I would prefer not to.”  In one of the lighter interludes of the story, all of the characters, the narrator included, cannot stop using the word “prefer” in their own comments.

However, the story is neither farcical comedy nor romantic fantasy.  With the lawyer/narrator as our introspective vehicle, we as readers are invited to make sense of Bartleby as a symbolic representation of humankind.  Is Bartleby basically an alienated worker, doggedly copying documents to the detriment of his eyesight?  Is he mentally ill, staring for hours out his small window at a black wall only three feet away? Does he display a hostile passive aggressiveness, refusing to be remunerated, fed, or simply helped?

The questions of course trump the answers.  After the lawyer/narrator realizes Bartleby is sleeping in the Wall Street office, he grasps the true seriousness of the situation.  The lawyer finds going to church useless, and he instead wanders the streets of antebellum Manhattan desperately trying to understand both Bartleby and the human condition.  “My first emotions had been those of pure melancholy and sincerest pity,” the lawyer says, “but just in proportion as the forlornness of Bartleby grew and grew in my imagination, did that same melancholy merge into fear, that pity into repulsion.”  The lawyer realizes that alms cannot solve the problem.  It is Bartleby’s soul that suffers, and his soul cannot be reached.

In the end, the lawyer relocates his office on Broadway closer to City Hall, and the owner of the Wall Street building has the police remove Bartleby.  He is taken to the Tombs, where he refuses to eat or communicate. The lawyer visits several times but to no avail.  On his last visit he finds Bartleby curled up and dead with his face against a wall in the prison courtyard.  “Ah, Bartlelby.  Ah, humanity.”

First, Komie. I believe that I first read Komie’s stories because my colleague David Papke passed along a copy of one of his books to me. I really enjoyed the stories. I should explain that generally speaking, I am not much of a reader of contemporary fiction. Besides reading for work, I tend to read nonfiction and poetry. My fiction reading list is limited, most of the time, to science fiction novels and short stories, and a few of my favorite novels, which I read over and over.

But Komie’s work grabbed me. The stories were so much more human and interesting than the other popular law-related fiction I had read. Komie’s writing is spare but vibrant. He writes about the worlds he knows well, the worlds that Chicago lawyers inhabit, but he uses that particular world as a lens for viewing human nature and human experience. Probably many of Komie’s stories resonate with me because some of his best work centers on young lawyers entering, trying to enter, or working at, large law firms. As one reviewer stated, “[the Komie stories that focus on large law firm life] are exquisite in their attentiveness to detail and full of an engaging, melancholy wisdom.”

Professor James Elkins, editor of the Legal Studies Forum, has been a fan of Komie, and the essay I wrote about Komie’s work appeared in the LSF. Professor Elkins has published a number of the stories in the LSF, and made some of them available online, here. If you want to read just one, you might try Solo.

Speaking about Professor Elkins leads me to my second topic, poetry by lawyers. If you like poetry, you should be aware of Professor Elkins’ fantastically thorough website cataloging poetry by lawyers, Strangers to Us All. The world of lawyer poetry is so much more than just Wallace Stevens and Archibald Cox–which (in my view at least) is really saying something! In addition to maintaining that website, Professor Elkins has published a lot of poetry in the Legal Studies Forum over the past five years or so. If you scroll to the bottom of the “Strangers to Us All” page, you can see descriptions of the LSF issues that anthologize poetry, as well as links to some of the poetry from those volumes, made available online.

Occasionally I run across poems by lawyers elsewhere. For instance, a couple of years ago one of my sisters gave me a volume of the Grove Review for my birthday, and it contained this lovely poem by lawyer David Filer, titled “Sometimes at Sundown.”