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Statutes are themselves often enough ambiguous texts requiring careful analysis and interpretation by judicial opinions – the same skills used in reading poetry.

Law and verse: a poetic connection

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April is National Poetry Month.  Although the language of law and poetry differ – with legal writing striving for clarity and conciseness, and poetics aiming for ambiguity and multifarious meaning – both law and poetry are essentially linguistic.  Both communicate meaning through language. To study law, to study poetry, is to study language.

Moreover, statutes are themselves often enough ambiguous texts requiring careful analysis and interpretation by judicial opinions – the same skills utilized in reading poetry.  Indeed, in Lewis Carroll’s “The Barrister’s Dream,” the law is “puzzling” and “never . . . clearly expressed.”  The antidote for such puzzles being “[t]he lawyer’s brief,” which, cutting to the chase, “is like the surgeon’s knife,/ Dissecting the whole inside of a question,/ And with it all the process of digestion” (Lord Byron, from Canto 10, Don Juan).

Another point of similarity is that both legal writing and fixed-verse poems are bound by rules of form.  Barbara Johnson asserted in a Yale Journal of Law & the Humanities article that in fact, lyric poetry, rather than prose, is “the more law-abiding or rule-bound of the genres.”

Poet John Keats described the sonnet as going so far as to “chain” and “fetter” language.  The “strict confines” (as described by poet Edna St. Vincent Millay) of fixed-verse poems thus reflect the rules and regulations of law as well as the court mandated formats of legal briefs and motions.

Prior to the 20th century, various law journals and newspapers actually published poetry alongside articles of jurisprudence and current news (e.g., Green Bag, Central Law Journal, and the Albany Law Journal).  Lawyers doubled as prominent poets and poets wrote extensively of law, such as Edgar Lee Masters, Wallace Stevens, e.e. cummings, Archibald MacLeish, Lawrence Joseph, and William Cullen Bryant.

But the connection between law and poetry is most . . . well, poetic . . . at moments when prominent jurists directly quote or compose poems within their decisions.  In these instances, poetry conveys meaning in a way legal language cannot, speaking more clearly and powerfully than stare decisis, and justice is meted out meter by meter.

For example, Supreme Court Justice Blackmun references classic poems such as Ernest Thayer’s “Casey at the Bat” to illustrate the importance of baseball to American culture in Flood v. Khun, a case regarding the status of baseball players as employees of their major league teams rather than as free agents.

A Pennsylvania contract case concerning the sale of emus, Liddle v. Scholze, 768 A.2d 1183 (Pa. Super. Ct. 2001), poeticized: “The emu’s a bird quite large and stately,/ Whose market potential was valued so greatly/ That a decade ago, it was thought to be/ The boom of the 21st century./ Our appellant decided she ought to invest/ In two breeding emus, but their conjugal nest/ Produced no chicks, so she tried to regain/ Her purchase money, but alas in vain./ Appellant then filed a contract suit,/ But the verdict gave her claim the boot;/ Thus she was left with no resort/ But this appeal to the Superior Court.”

In another case concerning a premarital contract, Busch v. Busch, 732 A.2d 1274 (Pa. Super. Ct. 1999), Judge Michael Eakin versified the entire decision: “Conrad Busch filed a timely appeal,/ Trying to avoid a pre-marital deal/ Which says appellee need not pay him support,/ He brings his case, properly, before this Court./ . . . They wanted to marry, their loves to enhance,/ Not for the dollars – it was for romance./ When they said ‘I do,’ had their wedding day kiss,/ It was not about money – only marital bliss./ . . . But a deal’s a deal, if fairly undertaken,/ And we find disclosure was fair and unshaken./ Appellant may shun that made once upon a time,/ But his appeal must fail, lacking reason (if not rhyme).”

The poetical and somber lyrics of the famous Billie Holliday song “Strange Fruit,” originally a poem written by Abel Meeropol as a protest against lynchings, were used in a 9th Circuit case, Campbell v. Wood, 18 F.3d 662, to illustrate the question of whether the act of hanging constituted cruel and unusual punishment under the Eighth Amendment of the Constitution.

Circuit Judges Einhardt, Browning, Tang, and D.W. Nelson, concurring and dissenting, state: “Hanging is associated with lynching, with frontier justice, and with our ugly, nasty, and best-forgotten history of bodies swinging from the trees or exhibited in public places.  To many Americans, judicial hangings call forth the brutal images of Southern justice immortalized in a song hauntingly sung by Billie Holiday. ”  And embedded in the accompanying footnote are the lyrics, “Southern trees/ Bear a strange fruit/ Blood on the leaves/ And blood at the root./ Black bodies swingin’/ In the Southern breeze/ Strange fruit hanging/ From the poplar trees . . . Here is a fruit . . . From the tree to drop/ Here is a strange/ And bitter crop.”

Reaching further back in time, ancient laws were often formed as poetry and laws expressed in incantatory rhymes.  Old Latin and Greek words for poetry were also words for law.  For example, “carmen” or “carminis” in Latin means song or statute.  Poets were the “unacknowledged legislators of the world,” contended poet Percy Bysshe Shelley in “A Defense of Poetry,” and poetical repetition and rhyme were used to help convey the law.

Poetry and law bear significant parallels.  As lawyer, poet, and former Librarian of Congress Archibald MacLeish observed: “The law has one way of seeing it.  Poetry has another.  But the journey is the same.”

Ami C. Janda works as an attorney editor at a legal publishing company in Eagan and is licensed to practice law in Minnesota.

2 comments

  1. The law and poetry…There is a great hip-hop song by Ice Cube. Instead of 3 strikes and you’re out…his song is “Three strikes and you in”

  2. There are a few outstanding examples, but my favorite is a simple real estate Deed recorded in Cass County, Illinois on August 9, 1881:

    I, J. Henry Shaw, the Grantor herein,
    Residing in Beardstown, Cass County wihtin

    For seven hundred dollars to me paid today
    to Charles E. Wyman do sell and convey

    Lot two (2) in Block forty (40), said county and town
    Where Illinois River flows placidly down

    And warrant the title forever and aye,
    Waiving homestead and mansion to both a good bye.

    And pledging this deed is valid in law
    I add here my signature, J. Henry Shaw (seal)

    I, Sylvester Emmons, who lives in Beardtown,
    A Justice of Peace of fame and renown

    Of the County of Cass and Illinois State,
    Do certify here that on this same date,

    Our J. Henry Shaw to me did make known
    That the deed above and name are truly his own

    And he state he sealed and delivered the same
    Voluntarily, freely and never would claim
    His homestead therein; but left all alone
    Turned his face to the street and his back to his home.

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