Sunday, November 26, 2017

Dear Malcolm

There is a mysterious gap in my resume. Two, actually. Or maybe they’re just two examples of the same repressed memories.

You’ve seen clues. For example, I graduated with a B.A. in English from BYU in 1986, and with a J.D. from Yale in 1990. But law school only takes three years.

You also may have heard me saying things like “when I was in grad school,” or “when I was at the University of Washington.” Or mentioning “I bailed on grad school. Twice.” Or even admitting “I never finished my thesis/dissertation. Twice.”

The first time was at BYU. Although I was a bardalotrous English major from day one, I also started taking graduate seminars in the Linguistics Department while still in my teens, even before I went on my mission to Korea. During my gap year after college graduation I finished my linguistics coursework, taught English 101, performed in theater, and started a weekly newspaper. 

As I recently confessed, that was the same year I had my first nervous breakdown over the whole gay-and-Mormon thing. I was a cliché – the “Best Little Mormon Boy in the World.”

But I was never pre-law. To the contrary, the only attorney I knew hated practicing law. (We carpooled to act at the theater together). Despite Richard's warnings, I took the LSAT as a walk-in on a last-minute whim. Law school was my desperate pretext to escape from Utah.

My second round of grad school was in the English Department at the University of Washington during the early 1990s. I had lived in Seattle for a couple of years. Although I enjoyed the intellectual challenges and the salary of a big firm litigation associate, I was deeply dissatisfied with where I saw my life and legal career going. Ostensibly recovered from my Mormon traumas, I was well on my way out of the closet and ready for adventure.

In an attempt at a little work-life balance, I signed up for an evening Shakespeare class though UW’s Adult Extended Education program. The class was so fun I formally applied for admission at UW as a post-baccalaureate student so I could get into one carefully-chosen English Department class each quarter. These courses were just gateway drugs, however. Heady from a seminar on the relationship between Victorian art and literature, I couldn’t resist admission into the English graduate program.

My Victorian seminar paper was about Max Beerhbohm, a writer and caricaturist who socialized with everyone in Who’s Who. As a souvenir I had an antique Beerbohm print framed to hang on the wall in my office. The print is captioned:

Scene: The Board of Trade. Time: Office Hours in the Early Eighties. Mr. Austin Dobson and Mr. Edmund Gosse, composing a Ballade, are taken unawares by their President, Mr. Joseph Chamberlain.1
1Dobson and Gosse were Victorian writers who found cushy day jobs as government bureaucrats. Gosse also was a deeply conflicted closet case.
In the 1990s we still wore suit and tie every day, so I would be in lawyer drag when I showed up for my English class a couple of afternoons each week. In my first official grad seminar, we went around the table introducing ourselves. A woman before me said “I'm Gwen. I used to be a corporate lawyer, but I decided to go back to grad school.” When my turn came, I said “I'm Roger. I’m still a corporate lawyer, but I decided to go back to grad school.”

No one at the firm ever noticed I was gone.  Res ipsa loquitur.2
2Lat. "The thing speaks for itself."

The best class I took at UW was a seminar on "Postmodernism." (It was 1993, what can I say?) The professor, Malcolm Griffith, was one of my most inspiring teachers ever.

Malcolm assigned an interesting reading list:  Calvino's If on a winter's night a traveler, Roland Barthes, Spiegelman's Maus, Auster's New York Trilogy, Acker's Don Quixote, Winterson's Sexing the Cherry, and Byatt's Possession. My favorite text was Robert Merton’s 1965 book On the Shoulder of Giants.  OTSOG is an extended riff on the origins and influences of an aphorism attributed to Sir Isaac Newton – “If I have seen farther, it is because I have stood on the shoulders of giants.” OTSOG is written with extraordinary erudition and in the comically discursive style of Tristram Shandy.3
3The eighteenth-century novel by Laurence Sterne, not the 2006 film version with Steve Coogan.
This fall I’ve been working on a long article called “Saving Appearances” about the unhealthy relationship between hypothesizing about the partially-unknown and lying about the partially-known. My research into mental health and brain function this year has made me doubt I could ever return to the kind of legal advocacy I used to do for a living. Anyway, progress on the draft essay stalled because I distinctly remembered my Merton essay included cool diagrams illustrating the ancient Greeks' goal of "saving appearances" in their cosmology. I’m too lazy to pass up an opportunity to plagiarize myself, but I’m too disorganized to find storage boxes on demand. (Like Merton and Tristram Shandy, our house is postmodernly discursive.) As a result, "Saving Appearances" has been on hold.

Then while rearranging some storage shelves today I came upon the file box containing all my writing projects from grad school and law school – my last fertile creative period before being silenced by a couple of decades of lawyerly anxiety and writer's block.

Other than than those pesky diagrams, I didn't remember anything else about my Merton essay. In postmodern OTSOGian fashion, I wrote my Merton paper as an epistle to Malcolm on legal letterhead, with copious footnotes. Reading it again for the first time in twenty-four years, I was startled to see myself noodling over some of the same themes I've been exploring recently. So I'm going back and taking a fresh look at my draft "Saving Appearances" essay. In the meantime, I've reproduced my December 1993 OTSOG paper here, entirely unchanged except as noted in contemporary parenthesis.

Dear Malcolm:

Contrary to some classmates’ perception, I have tried not to approach this seminar as a lawyer, and have mostly resisted the temptation of war stories and legal analogies. They break the illusion of being a real graduate student; they’re generally boring to normal people, and usually incomprehensible; and they remind that being a lawyer isn’t always that bad (thus clashing with the preferred my-job-sucks pose).

Nevertheless, in responding to OTSOG I have blundered into legal anecdotes and analyses. It started with our discussion in class of footnotes (or feetnote, as I always think of them collectively). Both “scholarship” (including Merton’s exemplar) and legal reasoning are riddled with citations to other authorities. In the case of literary scholarship, the citations are a paradoxical manifestation of the “cut of originality” that has dominated Western thought for centuries (as Merton so thoroughly and self-referentially [literally] documents). At first blush the rampant feetnote would suggest an obsession with unoriginality. But it is precisely the need to distinguish oneself from everyone else, to carve out a tiny independent intellectual fiefdom, that results in all the citations. Only by showing one’s awareness of (and distinction from) everyone else on earth can one hope to make an (admittedly modest) claim for some sort of originality. The result is a scene from The Far Side – a single penguin in the vast interchangeable mob, singing “I Gotta Be Me!” With all those conscientious surveys of the literature and obligatory nods to the usual suspects, there isn’t much room left these days for Big New Ideas.

Legal writing is just as cluttered with citations as scholarship, but for precisely the opposite reason. Jurisprudence is a cult not of originality but of authority; indeed, in the ideal legal discourse, absolutely nothing is original, with every phrase, word, or even morpheme footnoted to a prior source.

Our bench and bar of plagiarists are driven by the purported importance of precedent. A garden-variety trial court is bound by the decisions of its superior appellate tribunals. Those higher courts are themselves bound by their own previous decisions under the doctrine of stare decisis – Latin for mindlessly following precedent. Even courts in unconnected jurisdictions look over each other’s shoulders, borrowing approaches to similar problems. No one wants to be the first to do anything if they don’t have to be. That’s the point of the common law: it’s supposed to be a seamless web, answering all questions, changing at a glacial pace, and that only at the margin.

This is of course nonsense. Philosophically I am mostly a “legal realist,” believing that particular outcomes are driven by power and policy. But I play the game, too, because the explanation for the ultimate resolution of a contested issue is usually packaged as an appeal to authority.

Hence the abundant footnotes: for scholars, because authority contrasts with originality, and for lawyers, because authority masks originality. Nevertheless, perhaps both phenomena illuminate facets of the same fundamental human anxiety – the need to be different and yet not different, the recognition that one is both special and generic.

* * *
The second legal connection inspired by Merton relates to his professed narrative and analytic process: the serendipitous meandering among themes and centuries. It turns out the wandering otsogian methodology is very like what I do in legal research.

In framing his epistle, Merton asks where the OTSOG aphorism comes from and goes to, an interesting enough inquiry. As an attorney I’m usually asking boring questions, like “under this contract can a party do that?” and “who is liable for damages under these circumstances?” Sometimes the answer to my prosaic query is clear, based on the contract language or the relevant legal authority.4 Often, however, there is no obvious answer to the question presented, and I have to deal with ambiguous precedents, or a cacophony of conflicting voices. Because of the obsession with authority, it thus becomes imperative to locate that one case with both facts like yours and the outcome you want, that you can then hold up to the judge to convince here that everybody follows the rule of law you have proposed….
4Of course, nothing is so clear that a lawyer can’t find some ambiguity. Given world, money, and time enough, I can make black white and night day, at least in a certain light.
[I have omitted several tedious pages describing the process of finding a few persuasive legal citations I'd used in a recent case. All you need to know is I successfully convinced the judge that my client was entitled to an award of interest accruing during a particular phase of the litigation.]

* * * *
I described the process of legal research at excruciating length to suggest that despite our efforts to portray the law as driven by precise, inexorable rules, in reality cases are resolved based on packaging, serendipity, and sheer labor. (That’s one of the reasons lawyers cost so much.) Not that the process is entirely random: the turns and permutations, the narrowing of available paths, are all driven – both consciously and unconsciously – by the particular result desired.

My example also suggests how the process of going forwards and backwards along the line of authority – ruffing and sluffing, as it were – can lead further and further away from the starting point, and sometimes from the “truth.” In the last year, I have argued (and won) both sides of this same legal issue: the availability of interest accruing during this specific litigation phase. By relying on different analogies and separate lines of cases, I convinced one court to award interest to one client, and another court not to award interest to another client’s opponent, under identical circumstances.

My job is to prove black is white in just enough (but not too many) steps. I enjoy it – perhaps too much. As I discussed briefly in my New York Trilogy essay, I am a compulsive explainer. Lawyering thus often creates a moral hazard: I find/select the data to be explained, then construct the model that accounts for them.

In classical scientific theory-building, the goal was to “save appearances”: to propose an explanation that accounts for all the observed data. For example, suppose a scientist or lawyer is given the following five facts:

For an astronomer, these may be positions of a celestial body over time; for a lawyer, five witnesses’ descriptions of a single event. From the five givens, you can construct a model that accounts for each of them:

Competing models can be compared, and evaluated based on various criteria – such as their simplicity, or their ability both to explain all the known data and predict the unknown, in an organized fashion. Under such standards, perhaps

is more interesting, or robust, or amusing, or productive, than

Or perhaps not. In any event, both models save the same appearances, and provide a framework for further analysis. That’s the point of excursions like Merton’s: to construct and present (however haphazardly) an explanation of experience.

However, part of my current frustration with the law, and with compulsive explanations, is they involve models that save only “appearances.” That’s not enough. But what else is a poor little model to do?

Lots. Let’s use the same old array of x’s. Say that, as before, the x’s are the givens, the data that must be accounted for. However, what if there is an “o” – a datum that may not “appear,” but that you believe or know or suspect or hope is there?

When the goal is to save something more than appearances, the tidy model of the box doesn’t work any more:

Somehow it matters that the “o” is there in the middle of all those x’s. At least it matters to me. And I am increasingly uneasy with constructing or promulgating models that merely save appearances – or, in an effort to distract and deceive, that result in disappearances. My penchant for spin control has itself spun out of control.

The other day at dinner an old friend asked if I believe in “absolute truth,” and was amazed when I said that I did. I told her my favorite sentence in history was when Galileo recanted before the Inquisition – swearing aloud that the sun revolves around a motionless earth, but then muttering under his breath “e pur si muove” – “it still moves.” There is a universe; it may be inaccessible, changing, overdetermined, and altered by my own actions and thoughts; but regardless of what trendy pomo grad student types say, the universe is still there.

Paradoxically, I’m not just an absolutist but also a pragmatist, in the old-fashioned William James sense. One aspect of pragmatism is that everything is negotiable. Fortunately, as both a practical and philosophical matter, everything is not on the table all at once. Everything is just a potential subject of revision.

Most importantly, everything is on the table not because I like to build models for their own sake, but because I believe they truly are models rather than simulacra:  they attempt to model something out there.

* * * * *

This long letter has become a response not only to Merton, but also to other postmodern themes this quarter, as well as to your reactions to my previous papers in this seminar. Each brought an accusation of some species of glibness (a charge also leveled at Merton by my classmates): In re Calvino for reverting to telling rather than showing; in re Acker for settling for mere parody; and In re Auster for tossing out thoughts without rigorously developing them.

As I suggested in my Calvino essay, I’ve always been sensitive to charges of glibness, dilettantism, and coasting. Each of these faults is an occupational hazard of misguided attempts to juggle one bowling ball too many. Or as someone once said:
I once worked in a particularly hectic office. It was filled with fiendish devices of torture, including a Xerox machine that would maliciously burp ink on your white shirt. Above this monster hung a sign that said simply “Grace Under Pressure.” 
Our straight-laced boss never knew that the phrase actually referred not to Hemingway’s definition of courage, but rather to a record album by a loud Canadian rock group. But whatever its immediate source, the goal of grace under pressure has been an inspiration in my life, especially during my time here at BYU. 
First, “Grace” is the imperfect English translation of the Italian word sprezzatura: the ideal of the Renaissance Man. According to that ideal, you not only have to do everything, and do it well, but you also have to make it all look easy. This sentiment reappears in the modern anti-perspirant advertisement: “Don’t ever let them see you sweat.” 
I am no Renaissance Man, and when I sweat it shows. But with a reach far exceeding my grasp, I have tried while at BYU to become something of a student, a scholar, a writer, an actor, an artist, a musician, and a teacher, as well as a dutiful son and fun roommate. This is clearly impossible and certainly exhausting…
That’s how I began my valedictory address at BYU in 1986, two states and three careers ago; it could be here and now. Plus ça change….

One constant risk of sprezzaturan efforts is that you just snap one day. So far I’ve avoided that day. Mostly. [Ed. note: Ironic foreshadowing.]  A more likely result is to become overextended, to cut the wrong corners, to get caught coasting. Yet another is to succeed too well – performing such staggering feats of juggling that they appear implausible, leaving observers with an unfounded suspicion of shallowness and sloth.

This quarter I have fallen victim to most of these hazards. With the lengthy Calvino essay it was apparently clear I had sweated too much (no doubt at my employers’ expense). With my Acker response, however, I worked almost as long and hard, but it didn’t show. After being accused of telling rather than showing I overreacted. With Auster, the reproach was well-founded, since I indeed ran out of time and inspiration, and threw something facile together. In my defense, however, rather than merely blame my day job and on-going identity crisis, I would also point out that I was only beginning to grapple with some of the ideas that subsequently have played out in my responses to Merton and to Byatt: the connections between models and reality, intention and chance, multiple narratives and perspectives, and how things remain constant and yet change.

Back to Galileo’s aphorism, e pur si muove. As his story suggests, Galileo’s professed recanting did not change the nature of the universe, nor his true opinion of it. But the literal meaning of the phrase is ironically illuminating:  it still moves. The model changes, but so does the universe, which includes the model itself.

Life is a perilous balancing act of making plans and making do. The otsogian enterprise of lawyers and scholars is itself a process of working through uncertainty through a combination of luck and effort.5 Merton, that de facto postmodernist, is looking at profound questions of authority and originality, essence and construction, choice and submission. Likewise, my “Grace Under Pressure” speech excerpted above came at the beginning of an examination of these issues that led from Provo to New Haven, and now to Seattle. This seminar in turn has become part of my current crisis of disintegration and (hopefully) reintegration. Along the way, perhaps I’ve stumbled onto a new genre: nervous breakdown as performance art.6

5That’s the difference between serendipity and mere fortuity: it is precisely because the Princes of Serendip were on a quest for something that they found something else.
6Of course, my otsogian experience with art, life, and law suggests that it’s already been done. That same experience also suggests the appropriate response to being dismissed by such an appeal to precedent: so what.

Thanks again for the fun quarter – I’ll let you know how it all turns out.



In the 1980s, I leapt out of the Mormon frying pan into the fire of the law. (Hey, I was desperate.) My rewarding experience in Malcolm’s seminar seven years later convinced me it was time to escape again. So why am I not teaching English somewhere today?

It could be that in the 1990s I pulled the grad school trigger a little soon. Sneaking out of the office for one English class a quarter had redeemed my yuppie existence, but it would have taken forever to graduate. Impatiently adding a second seminar caused the fragile balance to collapse. Eventually the pile of incompletes and half-assed work product overwhelmed me.

Nevertheless, I was poised to sacrifice the law firm and salvage grad school. Instead, I found what seemed to be an even better distraction. This was the era of anti-gay ballot initiatives. I had the good fortune to become the lead attorney for the LGBT community organization opposing the Oregon-based bigots who were seeking to write discrimination into the law. It’s a long story involving gay ski week at Whistler. [Ed. note: No, the hyperlink to the future doesn’t work. Yet.] In the summer of 1995, I managed to parlay my pro bono gay rights experience into a full-time gig as Director of the LGBT Rights Project at the ACLU of Illinois. And I moved on.

1 comment:

  1. I just stumbled upon this blog post as one does during random google searches. Malcolm Griffith was my first (but not my last) husband and definitely ranks at or near the top of a very short list of inspiring professors. You might say I admired him so much I married him, but that would not be true. Our marriage lasted seven years, including the time spent apart after being together and prior to getting divorced. There were lots of reasons the marriage failed but none of them are worth noting. It remains true today, however, that as a teacher Malcolm taught me (and many others) more about reading than any other teacher I had encountered before and have encounted since.