Sunday, December 12, 1999
POETIC JUSTICE
Has our legal system gone from verse to worse?
BY RAY COOKLIS
The Cincinnati Enquirer
In one classic sci-fi short story, a fellow named Stein commits a crime, then uses a time machine to escape to a point in the future just after the statute of limitations on his offense has run out.
He's arrested anyway, and brought to trial on the theory that since Stein had not actually lived through that passage of time, the statute of limitations should not apply.
The judge scours through the evidence and arguments, then issues a six-word verdict:
“A niche in time saves Stein.”
It's not only in the world of fiction that judges succumb to the temptation of gratuitous cleverness with fractured aphorisms or rhymin' rulings.
The court will address
Plaintiff's seasonal confusion
Erroneously believing Christmas
Merely a religious intrusion.
Whatever the reason
Constitutional or other
Christmas is not
An act of Big Brother!
Christmas is about joy
And giving ahd sharing
It is about the child within us
It is mostly about caring!
One is never jailed
For not having a tree
For not going to church
For not spreading glee!
The court will uphold
Seemingly contradictory clauses
Decreeing “The Establishment” and “Santa”
Both worthwhile “Claus(es)”!
We are all better for Santa
The Easter Bunny too
And maybe the Great Pumpkin
To name just a few!
An extra day off
Is hardly high treason
It may be spent as you wish
Regardless of reason.
The court having read
The lessons of Lynch 1
Refuses to play
The role of the Grinch! 2
There is room in this country
And in all our hearts too
For different convictions
And a day off too!
— U.S. District Judge Susan J. Dlott
1 Lynch v. Donnelly, 465 U.S. 668 (1984).
2. Dr. Seuss, How the Grinch Stole Christmas.
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The latest real-life example came this week in U.S. District Judge Susan J. Dlott's versified prelude to her decision on Richard Ganulin's challenge of Christmas as a legal public holiday (see poem at right).
Maybe Judge Dlott figured that issuing herself a poetic license would help her float like a metaphor and sting like a decree.
But more than anything, these verses seem to say: No, Virginia, there is no T.S. Eliot on the bench.
You won't find Judge Dlott's opus in any future Norton Anthology — although some scholar may see fit to praise it as the first nine-stanza poem in the English language to employ footnotes in the form of proper legal citations. Or not.
Judge Dlott's literary aims were fairly modest. Her poem dismissing Mr. Ganulin's suit gave more than a passing nod to the style of Dr. Seuss. It doesn't take a professor of comparative literature to deduce that Judge Dlott's poem deftly shifts the spotlight to Mr. Ganulin as the wannabe Grinch who might have stolen Christmas.
The pity is that Judge Dlott's poem deflects attention from the 24-page ruling itself.
In a clearly reasoned opinion that drew upon a long history of relevant cases, she concluded that Mr. Ganulin — a Cincinnati assistant city solicitor who filed the suit as a private citizen — could not support his claim that making Christmas a legal public holiday violates either the Constitution's “Establishment Clause” or his rights to freedom of association and equal protection.
“Courts have repeatedly recognized that the Christmas holiday has become largely secularized,” she wrote. Still, “a government practice need not be exclusively secular to survive.”
As for the U.S. Supreme Court, she noted that “even though the justices have very different beliefs about the constitutionality of some state activities held in association with Christmas, they have not questioned the constitutionality of the legal public holiday itself.”
Fair enough. Then there's that poem. Some folks have tsk-tsked over the propriety of the judge's verse, saying it trivializes the ruling itself. That's the “If you can't do the time, don't make it rhyme” argument.
But ruling through poetry in a legal case is, as they say in the biz, not without precedent.
For example: In Austin recently, U.S. District Judge Sam Sparks ruled that a landmark, spring-fed pool should remain open for swimming, even though a protected species of salamander lived in it. He couldn't resist writing it as a 16-line poem. Excerpts:
“Both salamander and swimmer enjoy the springs that are cool,/
and cleaning is necessary for both species in the pool . . .”
“The city is doing its best with full federal support,/
so no temporary injunction shall issue from this court.”
Yecch. Neither Robert Frost nor Susan Dlott has anything to fear from Sam Sparks, poetically speaking.
You cannot tread terribly far in legal terrain without tripping on other examples. Judges, lawyers and other fiends — sorry, friends — of the court tend to pride themselves on their writing skills, so it's no surprise that they sometimes try their hand at, um, literature.
Many, in fact, use their Web sites to display their creations. Last July, for example, Alabama Circuit Judge Roy S. Moore posted his patriotic verse “Our American Birthright” on the Internet. It, too, is unlikely to merit consideration for the Nobel Prize.
Last year, Municipal Court Commissioner Kelvin D. Filer in Los Angeles thanked the 12 jurors in one case by sending them a seven-stanza poem. From the looks of this poem, the losing attorney might have had a good argument for jury tampering, had he been on his toes.
And lest anyone forget Johnnie Cochran's classic: “If it doesn't fit, you must acquit.”
Leaving aside the actual quality of such poetry: Does it really diminish the application of justice when a jurist shows a little creativity and playfulness? Or must judges curb their doggerel?
Given poetry's power to clarify thinking and distill images to their essence, it could be just the thing our legal system needs. Maybe the incredibly long-winded, jargon-filled world of workaday legal writing could use a little more poetry.
Law professor Thomas C. Gray has written an book on lawyer-poet Wallace Stevens' works, arguing that lawyers would do well to adopt Stevens' way of poetic thinking (The Wallace Stevens Case, Harvard University Press, 1991).
Let's take it a step further. Somewhere, some brave state supreme court could issue (in iambic pentameter, of course) a new regulation that henceforth, all judicial opinions must be in the form of verse.
Preferably haiku.
Ray Cooklis is an editorial writer for the Cincinnati Enquirer, e-mail rcooklis@enquirer.com, phone 768-8525.
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