reading the river James Boyd White, Hercacles Bow: Essays on the Rhetoric and Poetics of the Law 193 (Madison: University of Wisconsin Press, 1985)

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1 reading the river [L]earning the law is a kind of learning the ropes, we learn it, as we learn to engage in other activities, by doing it. One comes to know how to do what one could not do before, and in this sense at least things can be said to become clear. James Boyd White, Hercacles Bow: Essays on the Rhetoric and Poetics of the Law 193 (Madison: University of Wisconsin Press, 1985) 1

2 P Mark Twain on becoming a riverboat pilot P Mark Twain, in an extraordinary passage in Life on the Mississippi, explains the transformation in his view of the river when he became an apprentice riverboat pilot. The passage begins with Twain s explanation to Mr. Bixby why he suddenly changed course to avoid a bluff reef: No, it wasn t a bluff reef; there isn t one within three miles of where you were. But I saw it. It was as bluff as that one yonder. Just about. Run over it! Do you give it as an order? Yes. Run over it! If I don t, I wish I may die. All right; I am taking the responsibility. I was just as anxious to kill the boat, now, as I had been to save it before. I impressed my orders upon my memory, to be used at the inquest, and made a straight break for the reef. As it disappeared under our bows I held my breath; but we slid over it like oil. Now, don t you see the difference? It wasn t any thing but a wind reef. The wind does that. So I see. But it is exactly like a bluff reef. How am I ever going to tell them apart? I can t tell you. It is an instinct. By and by you will just naturally know one from the other, but you never will be able to explain why or how you know them apart. It turned out to be true. The face of the water, in time, became a wonderful book a book that was a dead language to the uneducated passenger, but which told its mind to me without reserve, delivering its most cherished secrets as clearly as if it uttered them with a voice. And it was not a book to be read once and thrown aside, for it had a new story to tell every day. Throughout the long twelve hundred miles there was never a page that was void of interest, never one that you could leave unread without loss, never one that you would want to skip, thinking you could find higher enjoyment in some other thing. There never was so wonderful a book written by man; never one whose interest was so absorbing, so unflagging, so sparklingly renewed with every reperusal. The passenger who could not read it was charmed with a peculiar sort of faint dimple on its surface (on the rare occasions when he did not overlook it altogether); but to the pilot that was an italicized passage; indeed, it was more than that, it was a legend of the largest capitals, with a string of shouting exclamation points at the end of it, for it meant that a wreck or a rock was buried there that could tear the life out of the strongest vessel that ever floated. It is the faintest and simplest expression the water ever makes, and the most hideous to a pilot s eye. In truth, the passenger who could not read this book saw nothing but all 2

3 manner of pretty pictures in it, painted by the sun and shaded by the clouds, whereas to the trained eye these were not pictures at all, but the grimmest and most deadearnest of reading matter. Now when I had mastered the language of this water, and had come to know every trifling feature that bordered the great river as familiarly as I knew the letters of the alphabet, I had made a valuable acquisition. But I had lost something, too. I had lost something which could never be restored to me while I lived. All the grace, the beauty, the poetry, had gone out of the majestic river! I still kept in mind a certain wonderful sunset which I witnessed when steamboating was new to me. A broad expanse of the river was turned o blood; in the middle distance the red hue brightened into gold, through which a solitary log came floating, black and conspicuous; one place a long, slanting mark lay sparkling upon the water; in another the surface was broken by boiling, tumbling rings, that were as many-tinted as an opal; where the ruddy flush was faintest, was a smooth spot that was covered with graceful circles and radiating lines, ever s delicately traced; the shore on our left was densely wooded, and the somber shadow that fell from this forest was broken in one place by a long, ruffled trail that shone life silver; and high above the forest wall a clean-stemmed dead tree waved a single leafy bough that glowed like a flame in the unobstructed splendor that was flowing from the sun. There were graceful curves, reflected images, woody heights, soft distances; and over the whole scene, far and near, the dissolving lights drifted steadily, enriching it every passing moment with new marvels of coloring. I stood like one bewitched. I drank it in, in a speechless rapture. The world was new to me, and I had never seen anything like this at home. But as I have said, a day came when I began to cease from noting the glories and the charms which the moon and the sun and the twilight wrought upon the river s face; another day came when I ceased altogether to note them. Then, if that sunset scene had been repeated, I should have looked upon it without rapture, and should have commented upon it, inwardly, after this fashion: This sun means that we are going to have wind tomorrow; that floating log means that the river is rising, small thanks to it; that slanting mark on the water refers to a bluff reef which is going to kill somebody s steamboat one of these nights, if it keeps on stretching out like that; those tumbling boils show a dissolving bar and a changing channel there, the lines and circles in the slick water over yonder are a warning that that troublesome place is shoaling up dangerously; that silver streak in the shadow of the forest is the break from a new snag, and he has located himself in the very best place he could have found to fish for steamboats; that tall dead tree, with a single living branch, is not going to last long, and then how is a body ever going to get through this blind place at night without the friendly old landmark? No, the romance and the beauty were all gone from the river. All the value any feature of it had for me now was the amount of usefulness it could furnish toward compassing the safe piloting of a steamboat. Since those days, I have pitied doctors from my heart. What does the lovely flush in a beauty s cheek mean to a doctor but 3

4 a break that ripples above some deadly disease? Are not all her visible charms sown thick with what are to him the signs and symbols of hidden decay? Does he ever see her beauty at all, or doesn t he simply view her professionally, and comment upon her unwholesome condition all to himself? And doesn t he sometimes wonder whether he has gained most or lost most by learning his trade? Mark Twain, Life on the Mississippi (New York: Harper & Row, 1883) 4

5 P learning to read the river P At first, learning the legal rules you need to take law school examinations may be a source of anxiety, but the intellectual task involved turns out to be relatively simple. This does not mean that you will always find a way to respond in an easy and brilliant way to questions put to you in class by your teacher or to assemble and argue the use of legal rules you need to excel on law school examinations. What it does mean is that learning legal rules and putting them to use to resolve legal issues, isn t nearly so much like learning the Chinese language as it may first appear. You face a different kind of problem. Put abstractly, and perhaps cryptically: You know something about boats and something about rivers but can you read the river well enough to get the boat done the river by piloting the boat yourself. Mary Morris, in The River Queen: A Memoir, relates how she contracted for a boat and a pilot to take her on a river trip down the Mississippi. Morris and her river boat pilot, Jerry, both keep their eyes on the river but they see different things: Jerry spends much of his time staring at things. He stares at the motor. He stares at maps. He gazes at birds, the sky, the movement of the waves. He looks deep into the hold and at the sink. If something isn t working, he gapes at it. Or if it presents or is going to present a problem, he stares. Often he just stands on the deck and gawks at whatever is behind him or ahead. Sometimes he is just looking at the river. He ll be gazing and then make a pronouncement, almost for no reason, as if to himself, Take her to port. There s a wing dam. Or a snag. A log. A piece of debris. I don t know how he sees any of these things. Jerry reads the ripples and the places where the water turns smooth. He ll say, See that line in the water? You want to avoid that. But I ll see nothing beyond the ripples the surface makes. If a boat is coming toward us, Jerry keeps his eye on its wake. He stares through his binoculars or camera lens. He is like a heron, eyes on the water, before making his move. 1 When you gain Jerry s river reading skills, and the patience to stare at things, you may see that: Learning the rules of law turns out to be more simple than it might first appears; understanding the law can be more difficult. Knowledge of the law must be combined with skills of performance reading, writing, argument, negotiation, counseling, storytelling. It is in these skills and in the interplay of knowledge and skilled performance that mastery lies. Learning legal rules may get you through law school; it will not, most lawyers will tell 1 Mary Morris, The River Queen: A Memoir 71 (New York: Henry Holt and Co., 2007). 5

6 you, make you a good lawyer. Law and its practice has a public and a private dimension. Some of the work we do as students of the law and as lawyers is done in public view; much of it is done behind closed doors. In this sense, the practice of law is like a restaurant. The food is eaten by patrons in the public dining area, but the work of a restaurant takes place in the kitchen, closed to the public. Lawyers are concerned about what goes on behind closed doors. Teach legal rules as we do and we must, there is still occasion to puzzle over the troubled relation of law and justice. We know that law implicates justice, and that these implications 2 are ever present in a lawyer s work. The problem of justice looms large, and it haunts our work. Justice is always the elephant in the room when you talk about law. The qualities of mind, the full range of skill required of the good lawyer are difficult to acquire, to teach, and to practice. What law teachers end up doing, when they try to convey the complexity that lies beyond learning legal rules. is resort to what is now a cliche: What we seek to do is to teach you to think like a lawyer. There is, in this desire this rhetorical claim a briar thicket of difficulties. Legal education is not done by programmed learning; it is an enterprise of sufficient subtlety that legal thinking becomes a rather crude way to point to what turns out to be a massive iceberg. 2 Some of you may view this from a different perspective: Consider the student who wants to learn to be an advocate, to argue on behalf of clients, clients who will pay good money to lawyers who can help them solve a problem or promote their interest. To be an advocate in the cases and for the causes of others, one must have the craft skills to do the work required. We don t spend much time in legal education worrying about the dangers that lie in the use of a lawyer s skills and a lawyer s mind in being an advocate for those who have little interest in the public good. A good many students want to lie A good many students want to learn the means of client representation and leave the ends justice, fairness, equality in the hands of others. Alicia, one of my students, might put it this way: There is a lawyer representing the party on the other side of the litigation; let her look after her client. There are judges, policy-makers, and legislators who are supposed to look after the public interest. My job is to represent my client; I m not a minister of justice. 6

7 P showing rather than telling P [W]e introduce our students to the law, not by lecturing, not by telling them what the law is, but by showing them the law in action in case after case. They discover and teach themselves the law not from outlines or guides or lectures but from cases and classroom performances, and this constitutes their instruction in becoming lawyers. Thomas D. Eisele, Wittgenstein s Instructive Narratives: Leaving the Lessons Latent, 40 J. Legal Educ. 77, 94 (1990) 7

8 P life, law, and kayaking P The boatman sat on the bank of the Wakarusa, above the wave, on a mid-october day, with his kayak sill lashed to the roof of his car. Buddha-like, he meditated on the sight, sound, and movement of the Wakarusa Wave. The sound of racing water is mesmerizing, whether it emanates from the depths of a canyon and only faintly reaches the ears of those distant on the rim, whether it lulls those at rest on the bank, or whether it seizes the entrails of an approaching kayaker. The speed of the water is, also, hypnotic, although it is somewhat of a shifting illusion readily apparent to those on shore but often not fully realized by those in a boat who move as one with the water and only comprehend its pace and power by reference to fixed objects, like the bank, trees, or rocks. Indeed, when one is carried by the river, without effort, expectation, or external reference, one can feel part of the larger, universal force. He had paddled a kayak on countless bodies of water over the years oceans, bays, lakes, ponds, rivers, streams, pools, and canals. He liked straight paddling on rivers more than the lakes or the ocean because one can focus on the incremental progress instead of the ultimate destination. In a lake or ocean, one can only really fix on the attainment of a point on a distant shore, while on the river you can set your sight on the nearest rock or the next bend and be fulfilled by each segment. In harsher circumstances those characterized by fear, fatigue, injury, or hunger you can narrow your entire concentration down to the next rock or the next bend and forge a lifeline. Pain, doubt, discomfort, and even panic can be held at bay, as one s consciousness becomes locked on one step at a time. John W. Ragsdale, Jr., The Wakarusa Wave: An Essay on Life, Law, and Urban Kayaking, 21 J. Nat. Resources & Envtl. L. 1, 1-2 ( ) 8

9 P all of the river, all of you P Among all professions of callings it may be doubted whether there is one in which greater endowments, physical and intellectual, are required for its successful prosecution today, one in which success is a surer text of ability and acquirement, than in the law. Dr. Cowell (or Cowhell, as Coke calls him), an eminent civilian and common lawyer, considered three centuries ago that the range of a lawyer s study should be coextensive with Nature herself. The sparks of all the sciences, said Sir Henry Finch, are raked up in the ashes of the law. Chitty tells the law student that he must not only master the law itself, but fill up his leisure hours with the study of anatomy, physiology, pathology, surgery, chemistry, medical jurisprudence, and police. Ours, wrote William Wirt to a friend sixty years ago, is not a profession in which a man gets along by a hop, skip, and jump. It is the already march of a heavy-armed legionary soldier. If such were the conditions of success at the bar in ages long gone by, what must be the talents and the toil exacted today? William Mathews, A Great New England Lawyer: Henry W. Paine, 10 New England Magazine (1894)(Old Series, Vol. 16) You may find this little piece of commentary from 1894 amusing. It may not be so clear what William Mathews means by a legal education coextensive with Nature herself and I don t know of anyone these days who would prescribe a study of anatomy, physiology, pathology, surgery, and chemistry for modern lawyers, but the gist of what Mathews suggests still holds true. It takes more learning than a law school prescribes to confront the toils exacted of the lawyer. 9