Learned Hand’s Dream

Over the weekend, the Wall Street Journal published my review of Reason and Imagination, a collection of Judge Learned Hand’s correspondence.

Had I unlimited space, I would have mentioned Learned Hand’s dream of a first day in Heaven, as recounted in Gerald Gunther’s biography of Hand:

[H]e would say that in the morning there would be a baseball game, with the score 4-1 in favor of the opposing team in the bottom of the ninth. Hand’s team then loads the bases, and it is Hand’s turn at bat; he promptly hits a home run, clearing the bases and winning the game. In the afternoon, there is a football game between the evenly matched teams, tied in a scoreless match. With a minute left to play, Hand catches a punt, weaves his way down the sidelines, and scores the winning touchdown. The highlight of the day is an evening banquet, with civilization’s greatest minds – Socrates, Descartes, Benjamin Franklin, and Voltaire – among the guests. The designated speaker for the evening is Voltaire. After a few words from him, the audience shouts, “Shut up Voltaire, and sit down. WE WANT HAND!”

Hand’s most famous former clerk, Ronald Dworkin, has recounted this story many times — see, for example, his 2010 law review article, “Justice for Hedgehogs.” But I heard this story from Dworkin firsthand: in 2000 or 2001, he addressed the University of Iowa Law School, and I ventured all the way from the undergraduate campus to hear it in person. It was probably my first exposure to either Dworkin or Hand.

Last Things First

The next issue of Esquire includes a great profile of Robert Caro, the legendary biographer of LBJ and Robert Moses.  Caro’s long been a hero of mine, ever since I read Master of the Senate and watched his three-hour profile on C-Span back in 2002.

The Esquire profile focuses on Caro’s writing process, making much of the fact that Caro plans each book’s closing lines early in the process, and then writes the other thousand pages with the destination firmly in mind:

Caro has always had a second anchor. The way he knows the last line for the final volume on Johnson, he has always known the last line for each book before he writes the rest of it. “This is the way I do it,” he says. “I’m not saying this is the right way to do it, but this is the right way for me to do it.” He has done it this way since he sat in Flushing Meadows Park in 1967, watching Robert Moses dedicate “a huge marble bench for reflection donated by the Roman Catholic Diocese of New York,” Caro later wrote. In that moment at the park, Caro found himself grasping. He had already done so much reporting, but he still couldn’t see the shape of The Power Broker. “It was so big, so immense,” he says, “I couldn’t figure out what to do with the material.” Then he watched Moses give his dedication. “Someday, let us sit on this bench and reflect on the gratitude of man,” Moses said over loudspeakers. The builder was already being broken down by then, his legacy already starting to crumble, and his few still-loyal lieutenants in the audience nodded and began to whisper to one another: Couldn’t people see what he had done? Why weren’t they grateful?

Why weren’t they grateful?

Caro had his last line. “All of a sudden, I knew what the book was.”

He gestures at the pile of paper on his desk.

“So with every book,” he says, “I have to write to the last line.”

It’s a good lesson, and it reminds me of another favorite writer, Mark Helprin.  He describes his own writing process in similar, if more poetic, terms:

“What comes to me is a diamond, found on the shore of a lake,” he continues. “Not a cut diamond, just the raw stone; it could be the last line of the story or the image of the last line. A poet might pick up that diamond and that will be his poem. But as a writer of prose I pick it up and throw it as far into the lake as possible. And then, perhaps in a zigzag course, go swimming toward it.”

That comes from a fairly recent (and excellent) profile of Helprin; he expanded the point years earlier, in Paris Review:

I certainly know how it will end. In fact, I build everything toward the last sentence, which is the first thing that occurs to me in writing a book. It’s like throwing a stone into a lake and then swimming and diving to fetch it. You can swim all over the place, you can dive and weave among the reeds, you can do anything you want, but when you finish, and you grasp the stone, the path between it and the place you start is a straight line. This “chalk line” is what I use to keep my intentions honorable, my plot simple, and my themes in reverberation.

Knowing the beginning and the end means that the middle is where the surprises are, where the characters and the book take on lives of their own, where the work becomes an adventure—but a disciplined adventure, because the ultimate purpose and the origin are known and firmly kept in mind. This fits quite nicely, in an aesthetic sense, with the notion that God does not play dice with the universe.

If Helprin and Caro agree, then who am I to disagree?

Jonathan Zittrain: “Great Teacher”

Back in 2000, my eagerness to go to Harvard Law School was driven by one factor above all others: I wanted to become an expert on “Internet Law,” and move to Silicon Valley.  (To be fair, it was 2000, and the idea of “Internet Law” as a separate field wasn’t as ridiculous-sounding as it might be today.)  In those days, Harvard was the best place to do this — even better than Stanford — thanks to the school’s Berkman Center, led by Jonathan Zittrain.

I got in to Harvard, worked for a while at the Berkman Center (just helping put together its newsletter series), did entry-level editing for the Harvard Journal of Law and Technology.  And most importantly, I signed up for two of Professor Zittrain’s classes: a big lecture, and a small reading group.

But by my “2L” year, my interests had shifted, and I moved on to study other areas of the law.  Still, my time in Zittrain’s classes, and my outside reading, stuck with me among my favorite law-school memories.

Well, a decade later, Harvard has only redoubled its leading role on questions of law and technology.  And that is largely attribuable to Professor Zittrain.  And so I highly recommend Harvard’s new video tribute to him: “Jonathan Zittrain: In the Classroom.

On Obamacare, Judge Friendly, and “Independent” Agencies

It’s a busy week for my writing hobby, as three of my articles all came out at once.

First, on Saturday, The Weekly Standard published my thoughts on Obamacare’s prospects before the Supreme Court. (My article already has received generous mention by Ed Whelan and Michael Greve.) Better still, I benefitted from the work of the Standard‘s peerless

Second, and also on Saturday, the Wall Street Journal published my review of David Dorsen’s excellent new book, Henry Friendly, Greatest Judge of His Era. (Here, too, I benefitted enormously from the Journal’s design team, which coupled my article with great photos.) I highly recommend the book.

Finally, this morning National Affairs published my article on “independent” agencies and the president’s failure to take responsibility for their misdeeds.

And these three come on the heels of two other publications. Last month, Commentary published my thoughts on the late constitutional scholar, Alexander Bickel, to commemorate the fiftieth anniversary of his classic, The Least Dangerous Branch. And the Library of Law & Liberty generously invited me to respond to Professor Richard Epstein on the Supreme Court’s recent First Amendment cases.

In short, it’s been a busy few months. And that’s on top of my day job. Words can’t express how patient and generous my family has been in recent weeks.

Libraries & “Anti-Libraries”

Speaking of the new issue of The New Republic, it closes with Leon Wieseltier’s lovely essay on personal libraries in an age of digital text:

A library has a personality, a temperament. (Sometimes a dull one.) Its books show the scars of use and the wear of need. They are defaced—no, ornamented—by markings and notes and private symbols of assent and dissent, and these vandalisms are traces of the excitations of thought and feeling, which is why they are delightful to discover in old books: they introduce a person. There is something inhuman about the pristinity of digital publication. It lacks fingerprints. But the copy of a book that is on my shelf is my copy. It is unlike any other copy, it has been individuated; and even those books that I have not yet opened—unread books are an essential element of a library—were acquired for the further cultivation of a particular admixture of interests and beliefs, and every one of them will have its hour. The knowledge that qualifies one to be one’s own librarian is partly self-knowledge.

I agree with all of that.  But then I reach the next line:

The richness, or the incoherence, of a library is the richness, or the incoherence, of the self.

I think I get what Wieseltier means: that a library’s richness is reflected in the books we’ve read.  But if that’s what he means, then I have to disagree, because I think the value of a library is best explained by Nassim Taleb, who in turn cites Umberto Eco:

The writer Umberto Eco belongs to that small class of scholars who are encyclopedic, insightful, and nondull. He is the owner of a large personal library (containing thirty thousand books), and separates visitors into two categories: those who react with “Wow! Signore, professore dottore Eco, what a library you have! How many of these books have you read?” and the others — a very small minority — who get the point that a private library is not an ego-boosting appendage but a research tool.

Read books are far less valuable than unread ones. The library should contain as much of what you don’t know as your financial means, mortgage rates and the currently tight real-estate market allows you to put there. You will accumulate more knowledge and more books as you grow older, and the growing number of unread books on the shelves will look at you menancingly. Indeed, the more you know, the larger the rows of unread books. Let us call this collection of unread books an antilibrary.

Yes — let’s!  If only to justify the books I’ve bought but not yet read.

Robert Kaplan on Solitude

While on the subject of solitude, I can’t help but think back to the extended C-Span “In Depth” interview with Robert Kaplan, back in 2005.  In that interview, as in almost every “In Depth,” the show cuts to a brief visit to the author’s home or office; that’s always my favorite part of the show, and Kaplan’s is probably the best of the best: his home office in Stockbridge, Masschusetts.

Talk about an ideal place to work.  Kaplan reflects, “I’m here in the country, in western Massachusetts, so I’m not inundated with colleagues’ opinions.  I find that writing, the more solitary and lonely it is, the more special and powerful is the result.”

See for yourself: cue to the 1:06:30 mark of the video, here.

P.S.  Ranking right behind Kaplan, in terms of awesome In Depth workplace profiles, is James McPherson.  C-Span actually ran an entire 40-minute profile of his home office in Princeton, New Jersey; unfortunately, the web video is garbled.  But a short clip is available on YouTube.

On Solitude and the “Work Destroyers”

Shortly after Steve Jobs’s death, I posted short blog posts here and at the Standard on Apple Computer’s roots in Silicon Valley.  (The post at this site continues to attract a surprising number of visitors via Google, oddly enough.)

But Apple isn’t just a story about community, of course, and in fact it also offers a useful example for the opposite consideration: solitude.  In Sunday’s New York Times, Susan Cain wrote about the solitude preferred by Jobs’s co-founder, Steve Wozniak, and the pitfalls of too much teamwork:

The story of Apple’s origin speaks to the power of collaboration. Mr. Wozniak wouldn’t have been catalyzed by the Altair but for the kindred spirits of Homebrew. And he’d never have started Apple without Mr. Jobs.

But it’s also a story of solo spirit. If you look at how Mr. Wozniak got the work done — the sheer hard work of creating something from nothing — he did it alone. Late at night, all by himself.

Intentionally so. In his memoir, Mr. Wozniak offers this guidance to aspiring inventors:

“Most inventors and engineers I’ve met are like me … they live in their heads. They’re almost like artists. In fact, the very best of them are artists. And artists work best alone …. I’m going to give you some advice that might be hard to take. That advice is: Work alone… Not on a committee. Not on a team.”

The piece was well timed, if only because last week I had just taken time to return to Bill Deresiewicz’s two excellent essays on solitude: “The End of Solitude” and “Solitude and Leadership.”

There’s nothing I can usefully add to Deresiewicz’s or Cain’s essays; they are all must-reads.  I can’t imagine that I’m the only one who works best when left alone, which is why my most productive working hours are still between midnight and 3, when the phone isn’t ringing, the my colleagues aren’t looking for me, emails aren’t arriving, and I can quietly go about my business.  It’s a habit I (like many) developed in college, and still can’t shake.

If anything, worktime solitude is all the more necessary as I get older, for I am increasingly prone to distraction.  Years ago I could get a lot done even with the TV or radio on; now I can accomplish little without relative quiet, or at the very least a background soundtrack familiar enough to fade into white noise.

And so Alan Jacobs gets it precisely right in his new book on reading in “an age of distraction.”  But Hemingway struck the note years earlier, when he said, “the telephone and visitors are work destroyers.”

The Myth of Giving Unanimous Support to a New Justice’s First Opinion

It’s good to see Mike Sacks — of “First One @ One Firstfame — back on a full-time Supreme Court beat.  But I’m less happy to see him perpetuate a bit of a myth: namely, that Supreme Court justices traditionally line up unanimously behind each new Justice’s debut opinion, and that Justices Thomas & Scalia breached that rule for the debuts of their new liberal colleagues, Justices Sotomayor and Kagan.

Here’s Sacks’s account:

It’s the Court’s custom for the justices all to line up behind a new justice’s debut decision.Thomas ignored that custom in 2009 when he issued a separate concurrence to Justice Sonia Sotomayor’s first opinion — although he didn’t go so far as to dissent, which Justice Antonin Scalia did when Justice Elena Kagan first wrote for the Court.

Actually, the tradition isn’t unanimity — it’s to try to achieve unanimity.  John Elwood has summed this up nicely at the Volokh Conspiracy a couple times.  And it’s not as though Democratic appointees are the only ones to have received non-unanimous treatment: as Elwood puts it, “before anyone suggests that this is a conspiracy against democratic appointees, the same was true of then-Justice Rehnquist, Justice Blackmun, and (I think) Justice Powell.  I got too lazy to do any further research after that.”

 

 

Justice Stevens and Targeted Killings — Then and Now

In his time on the Supreme Court bench, Justice John Paul Stevens played an critically important role in re-defining the Supreme Court’s view of the President’s wartime powers.  I am no great fan of this, obviously; but setting aside his success in overturning important precedents, his work was rather fascinating in the context of his biography.

As others have explained, Justice Stevens’s decision in Rasul v. Bush, brought his career full circle.  In granting Guantanamo detainees a statutory right to file habeas petitions in federal court, Justice Stevens overturned an old Supreme Court precedent, Ahrens v. Clark.  More specifically, Stevens’s opinion adopted a dissent that his old boss, Judge Wiley Rutledge, had submitted in that decision — a dissent written by none other than Rutledge’s clerk, young John Paul Stevens.

For similar literary reasons, it’s almost (almost!) a pity that Stevens is no longer on the Court to hear cases regarding the U.S. military’s targeted killing of al Qaeda terrorists (including an American member of al Qaeda, Anwar al Awlaki).  In this debate, much has been made of a America’s history in targeting and killing foreign military leaders — in particular, “Operation Vengance,” which killed Japan’s Admiral Isoroku Yamamoto, an architect of the Pearl Harbor attacks.  (For some of that discussion, see here, here, and here.)

Here’s the catch: America’s successful takedown of Yamamoto was based in part on the intelligence work of a young Naval officer … John Paul Stevens.  Stevens’s has mentioned this elsewhere, but he also refers to this episode — ruefully — in his new book, Five Chiefs.

And his new book is not the first occasion for him to criticize America’s killing of Yamamoto.  In a 2007 article, Jeffrey Rosen reported Stevens’s qualms with targeted killings:

Stevens told me he was troubled by the fact that Yamamoto, a highly intelligent officer who had lived in the United States and become friends with American officers, was shot down with so little apparent deliberation or humanitarian consideration. The experience, he said, raised questions in his mind about the fairness of the death penalty. “I was on the desk, on watch, when I got word that they had shot down Yamamoto in the Solomon Islands, and I remember thinking: This is a particular individual they went out to intercept,” he said. “There is a very different notion when you’re thinking about killing an individual, as opposed to killing a soldier in the line of fire.”

Stevens went on to say that this experience ultimately intensified his opposition to the death penalty. It’s no stretch to assume that it would have led him to urge his Supreme Court colleagues to push back against the President’s military program.

All the more reason for relief that he retired when he did.  Still, an amusing coincidence of history.