Happy Birthday to my sister Maud!

In honor of my sister Maud Ellmann, who celebrated a birthday this week, here’s an excerpt from her introduction to a book she edited years ago, Psychoanalytic Literary Criticism (Longman 1994). Here Maud is discussing the work of another critic, Luce Irigaray. Maud explains that: 

In Irigaray's Utopia, where women would enunciate their own sex, rather than deferring to the phallus, their language would defy grammatical divisions, making words as warm and slippery as lips: 

"what a feminine syntax might be [Irigaray writes] is not simple nor easy to state, because in that 'syntax' there would no longer be either subject or  object, 'oneness' would no longer be privileged, there would no longer be proper meanings, proper names, 'proper' attributes. . . .  Instead, that syntax would invoke nearness, proximity, but in such an extreme form that it would preclude any distinction of identities, any establishment of ownership, thus any form of appropriation." 

A little later Maud responds: 

[I]t is troubling that Irigaray, judging by her style, can conceive of  female discourse only in the form of gush, as if incontinence were the  equivalent of liberation. To speak as women, it seems we are obliged to echo the unpunctuated rhapsody of Molly Bloom, in which the flow of words is ill-distinguished from the flow of bodily secretions; yet the notion that liquidity in discourse is superior to dryness is based on a bizarre confusion of the orifices. Whatever the future of women in language, it would be sad if Irigaray's ethics of 'mucosity' displaced the keener energies of women's wit, for 'brevity', as Dorothy Parker has observed, 'is the soul of lingerie'.

Hurray for Maud and the "keener energies of women's wit"! 

A debate on requiring clinical/experiential training in law schools

The Clinical Legal Education Association has proposed that law school accreditation standards should require every law student to take 15 credits of experiential education, or about one semester out of the six usually needed for graduation. Experiential education can take many forms, from clinics and externships to simulation classes, but the basic idea is that no one should become a lawyer without having had some exposure, with the guidance of law school faculty, to the practice of law. It seems to me that this idea is confirmed both by logic (shouldn't a professional school provide training in the practice of the profession?) and by experience (both from the clinics and other experiential classes law schools already offer, and from the very substantial levels of experiential education that a range of other professions require).

But reasonable people disagree, and one of them, Brian Leiter, graciously invited me to debate the question with him on his blog. We did so last week, under the title "Ellmann v. Leiter on the proposed clinical/experiential learning requirement." I hope you'll enjoy it!

Clinics in the Supreme Court

I've just added one more case to the list I've been compiling of Supreme Court decisions from last term (2012-13) in which law school clinics helped represent a party -- now a total of 8 out of 78 cases decided on the merits by the Court that year. Arguably these numbers understate the clinics' influence, since they don't include amicus briefs that clinics may also have filed (though there are lots of those briefs nowadays). I don't know whether the 2012-13 numbers reflect an ongoing phenomenon, but I hope to keep an eye on this year's cases as well and try to find out.

The presence of law clinics in the Supreme Court may startle both clinical and nonclinical faculty: clinicians because most clinics focus largely on interpersonal skills of lawyering, while the Supreme Court litigation experiences presumably are mainly about writing, and nonclinicians because writing a Supreme Court brief is the sort of elite, intellectual practice work that even those who most strongly emphasize the role of doctrine and scholarship in law school would likely validate. That makes the role of clinics in the Supreme Court important pedagogically as well as practically.

Meanwhile, congratulations to the clinical teachers and students who did this work!

Remembering my mother Mary Ellmann

In memory of my mother, Mary Ellmann, who was born on January 5 93 years ago, here is her always timely description, in her book Thinking About Women, of the "extraordinary expedition" of the ovum:

an unseen equivalent of going down the Mississippi on a raft or over Niagara Falls in a barrel. Ordinarily too, the ovum travels singly, like Lewis or Clark, in the kind of existential loneliness which Norman Mailer usually admires. One might say that the activity of ova involves a daring and independence absent, in fact, from the activity of spermatozoa, which move in jostling masses, swarming out on signal like a crowd of commuters from the 5:15. 

That about sums it up, don't you think?

Why I like Pope Francis

Pope Francis, reports James Carroll in The New Yorker, recently said of Pope John XXIII, with admiration, that "he repeated the motto, 'See everything; turn a blind eye to much; correct a little.'"

How very far, how wonderfully far, that sentiment is from the idea that God's law, or ours, must be a relentless engine of enforcement!

Nelson Mandela as a man of the law

So much has already been eloquently said about the passing of Nelson Mandela that it is daunting to add anything. (All the more so after Barack Obama's profound eulogy today in South Africa.) In a way, too, words are superfluous; a life so extraordinary speaks so directly to our hopes for a just world. How could someone have shown so much courage, endured so much and emerged with such grace and wisdom?

Some part of the answer may actually lie in law. Mandela of course was a lawyer, but he equally was a lawbreaker. (Leading a guerrilla campaign is rarely legal.) He was not bound by law - not the apartheid state's, nor even the ANC's internal norms, which he slipped by to initiate the negotiations that ultimately brought apartheid to an end.

Nevertheless he cared about law. When he famously declared that he found himself facing charges as a black man in a white man's court -- and wore traditional African clothes to make the point, though he was a notably stylish Western dresser -- he was at pains to explain that he meant no personal disrespect to the white magistrate hearing the case.

When he became President of South Africa, he carefully demonstrated his respect for law. Famously (at least among lawyers) he unhesitatingly accepted an early Constitutional Court judgment that one of his executive orders was unconstitutional. More remarkably, really, he obeyed a subpoena to testify in a case challenging another of his actions, and then endured the trial judge - an unreconstructed hangover from the apartheid era - criticizing his credibility! (There are moments when justice is blind, deaf and dumb.)

All of this was strategic, certainly. But strategy is partly personality; the moves a leader makes tend to be the ones that fit him or her best. Certainly law was familiar to Mandela, as the co-founder - with another remarkable leader, Oliver Tambo - of South Africa's first black law firm. But his autobiography, Long Walk to Freedom (1995), reflects not just legal knowledge but a love, a deeply frustrated love, of the law.

Here he is on his coming of age in the law: 

     As a student, I had been taught that South Africa was a place where the rule of law was paramount and applied to applied to all persons, regardless of their social status or official position. I sincerely believed this and planned my life based on that assumption. But my career as a lawyer and activist removed the scales from my eyes. (260) 

And here he is, speaking to the court in the Rivonia trial which led to his sentence of life imprisonment:

I would say that the whole life of any thinking African in this country drives him continuously to a conflict between his conscience on the one hand and the law on the other. (330) 

Later in this speech he declares: 

But there comes a time, as it came in my life, when a man is denied the right to live a normal life, when he can only live the life of an outlaw because the government has so decreed to use the law to impose a state of outlawry upon him. (331) 

This connection to law is not only a matter of philosophy but of style. Elsewhere in his autobiography Mandela writes:

I confess to being something of an Anglophile. When I thought of Western democracy and freedom, I thought of the British parliamentary system. In so many ways, the very model of the gentleman for me was an Englishman.... While I abhorred the notion of British imperialism, I never rejected the trappings of British style and manners. (302) 

Mandela, it seems, was a revolutionary gentleman, and I take this to be partly a lawyerly attitude, for South African courts were notably structured on British models. The "trappings of British style and manners" surely include an emphasis on “order.” One who cares about order may still lead a people into war – as Abraham Lincoln did. But such a leader may be able to lead them into peace as well.

It’s also worth saying that lawyers care about small points as well as large - hence their reputation for fixating on technicalities. To see the possibility of peace in the midst of confrontation can be seen as sweeping inspiration rather than fascination with detail. And yet, in a certain sense, Mandela's ability to see the potential for an agreement - made up of hundreds or thousands of "small points" rather than one very large point of all-out racial war - was an expression of this capacity.

Nelson Mandela was a lot more than a lawyer - but I think that part of his strength was that he was a man of the law.

The "Camelot" years in the anti-apartheid struggle

A fascinating feature of Alan Wieder's biography, Ruth First and Joe Slovo in the War against Apartheid (2013), is his reference to the 1950s as "Camelot" for white people who were part of the struggle against apartheid. As Wieder says, it was Gillian Slovo, one of the children of First and Slovo, who applied this term, and, one senses, she didn't do so entirely approvingly. The Slovo children clearly suffered from their parents' intense commitment to the struggle, as the children of other public men and women have often struggled, and Gillian Slovo's perhaps unhappy characterization of her parents' world should be understood against this background.

Nevertheless, the word may be apt. Nadine Gordimer's book Burger's Daughter -- a work of fiction, but connected to the actual life of a leading South African anti-apartheid lawyer, Bram Fischer -- vividly describes the partying of the day. It was, it seems, exciting to oppose apartheid in those years. And why shouldn't it have been? The whole world was moving away from doctrines of racial inequality, and surely South Africa would not sustain its isolation from this progressive trend indefinitely. Victory was coming. Meanwhile, though there were risks and consequences, they were much less severe than they would soon become. In the 1950s, of the many anti-apartheid leaders and activists who were accused in the Treason Trial, not one was convicted. And when police raided your house (as I think Stephen Clingman recounted in his biography of Fischer, Bram Fischer: Afrikaner Revolutionary (2000)), you offered them tea -- if you were white. A measure of the romantic flavor of the time is that many people apparently didn't take the precautions their clandestine efforts really called for. And, while the political struggle went on, the opponents of apartheid were able to live a life that crossed racial lines -- lines that no other South Africans dared cross.

Things would soon grow worse. A state of emergency and a host of laws that made emergency rule part of regular life, a series of successful prosecutions (including of Bram Fischer), and the institutionalization of police torture changed the world of anti-apartheid opposition. It would take till the 1970s for a spirit of opposition to begin to flourish again. It's all the easier to understand how powerful the state oppression of those years was, when we know how much had been dreamt of and lost from the 1950s.