Posted Monday, April 14, 2008, at 5:47 PM
I tend to agree with Kenji that the overt mixing of poetry and law can be ill-advised : adding the former often will not enhance analysis in the latter. Yet the deployment of poetry – or any literary reference, for that matter – serves to reveal something about the legal writer who deploys it. Justice Harry A. Blackmun's homage to Casey at the Bat , no less than Chief Justice William H. Rehnquist's tribute to Barbara Frietchie in the 1st flag-burning case, told much about each author's approach to the subject matter at bar. Some observers may not welcome what is revealed; these 2 examples, for instance, might be seen as evidence that a Justice lacked detachment and thus engaged in less than rational reasoning. (That conclusion is not inevitable – consider those studies that refute the commonly held assumption that emotion clouds jurors' judgment.) Adding literature to law may serve, moreover, to make more humanly accessible a process seldom understood by those humans whom it most affects.
Kenji's right, too, that the best law poetry may be those lines that we commit to memory not because of some intentionally catchy cadence, but rather because their simplicity belies a deeper social meaning. The warnings set forth in Miranda v. Arizona surely qualify. Another nominee jumps to mind. It is the essence of another opinion by Chief Justice Earl Warren, a line on which Brown v. Board of Education and all its progeny depend. If I may be indulged a bit of verse, it is: