Posted Sunday, April 6, 2008, at 7:58 AM
"A groom must expect matrimonial pandemonium/ When his spouse finds he’s given her cubic zirconium." So begins a dissent by Justice J. Michael Eakin in the 2002 case of Porreco v. Porreco , which addressed whether a wife fairly relied on her husband’s claim that an engagement ring was worth $21,000 when, in fact, the stone in it was fake. I resurrect this couplet in response to Diane’s call to celebrate National Poetry month, but also to make a serious point about poetry and law.
As the New York Times then reported, the rhyming judge drew the ire of some colleagues. Chief Justice Stephen A. Zappala wrote that "an opinion that expresses itself in rhyme reflects poorly on the Supreme Court of Pennsylvania." Other judicial lyricists have been similarly criticized by their peers. Generally, I am with the critics. At least since Plato banished the poet from his ideal republic, law and poetry seem like things to be valued separately. One is reminded of Balzac’s comment that he liked women’s hair and that he liked soup, but not women’s hair in his soup.
In a 1986 essay, Robert Cover explains why we hold the two enterprises apart. He observes that law is different from other textual enterprises because judges "deal pain and death." "In this they are different from poets, from critics, from artists," he contends. "It will not do to insist on the violence of strong poetry, and strong poets. Even the violence of weak judges is utterly real—a naïve but immediate reality, in need of no interpretation, no critic to reveal it." This point may explain why, as Benjamin Cardozo once noted, dissents (which do not deal immediate pain or death) are more likely to be literary than majority opinions. Even the otherwise unrepentant Justice Eakin included his couplet in a dissent and assured the Times that he would never rhyme in a "serious criminal case."
But like every generalization, the idea that law is a serious business while literature is an ornamental pastime has some important exceptions. Given a culture that seeks to drive a wedge between law and literature, we should not expect legal poems to declare themselves as such. This is not, however, the same thing as saying such poems do not exist.
The most famous poem in law is the Miranda warning. More people can recite this quatrain than can recite the Gettysburg address, much less a quatrain from most poets who were intentionally writing quatrains, like the quite catchy Alexander Pope. The broad dissemination of the warning in our culture through television and film has not just given it force, but affected its Constitutional stature. In the 2000 case of United States v. Dickerson , Chief Justice Rehnquist held that the warning had acquired a Constitutional dimension because it had become part of our "national culture." This was not Congress as a co-equal interpreter of the Constitution—indeed, Congress in Dickerson was trying to get rid of the warning. It was Hollywood.
I appreciate Diane’s call to celebrate law and poetry. But a celebration of law and poetry that (so far) buys into the relatively ornamental status of poetry in law feels like something less than a full one. The Greeks embodied law-like mores in poetry to ensure their broad dissemination in an oral culture. If we are committed to having laws that "We, the People" can understand, we might do worse than to reinstate that practice.