Between History and Poetry in Judging: Zhang on "Outside In: The Oral History of Guido Calabresi"

This post, by Alex Zhang, is the first in a series of posts in which legal historians reflect on Outside In: The Oral History of Guido Calabresi (Oxford University Press), by Norman I. Silber

Aristotle wrote that poetry is more scientific than history, for poetry speaks of universals, and history narrates in particulars.  Two millennia later, Guido Calabresi, now a senior Second Circuit judge, told his law clerks at lunch:  “It is in the nature of the law to generalize on an inadequate basis.”  Behind Guido’s memorable quip is an Aristotelian aspiration.  Judging requires—and some might say, should only reach—a resolution of the dispute before the court, bearing in mind the facts and the parties’ contentions that have already been made.  HistoriÄ“, as ancient Greek historians recognized, centers on an investigation of the particulars of the past.  But every judicial opinion also grasps at something more: the structure of doctrine, the demands of policy—the universals and the poetry of the law.

In Outside In: The Oral History of Guido Calabresi, Guido tells the story of his fascinating life, with extensive context provided by Norman Silber’s helpful commentaries.  The first volume of this magisterial work starts with Guido’s family history, upbringing, and education.  It ends with Guido’s clerkship with Justice Black, his academic path, and reflections on his paradigm-shifting scholarship.  The second volume is a bipartite narrative of Guido’s tenure as the Dean of the Yale Law School and his time on the bench as a Second Circuit judge.  It includes remarkable stories about how Guido re-invigorated Yale Law School’s faculty, and negotiated its financial independence from the University with Benno Schmidt and William Nordhaus, then Yale’s President and Provost, respectively.  

Of particular interest to scholars and historians of federal courts—and judicial decisionmaking—are Volume II’s in-depth discussions of Guido as a federal appellate judge.  Guido’s transition to the bench, the adjudicative culture of the Second Circuit, and stories about specific cases in torts, immigration, and antidiscrimination all yield insights that help scholars read opinions and decipher doctrinal developments.  As Guido recounts, judges are historians:  They care deeply about the particulars.  Their focus is on the specific arguments made by the parties, as well as the facts that make up the case.  Their respect for the law of the past—and the institution that produced it—make them cautious and incremental in judging.  Volume II, 182.  They “decide cases,” they “explain how [they] get to the result, and that’s what the Law requires.”  Volume II, 202.  For example,  Jon Newman, a former chief judge, “writes for the ‘law.’”  Id.  He once advised Guido:  “You’re a judge.  Decide this case.”  Id.

But even in the heyday of judicial minimalism, judges are also poets—some quite literally.  Dennis Jacobs, a former chief judge, “taught literature before he went on the court,” talked Dante with Guido, and in judging, tried to “weigh words, to hear their resonance, and to pay attention to sound and rhythm.”  Volume II, 177, 187.  Especially memorable is a limerick Judge Jacobs composed in response to Zarda, the case that recognized sexual orientation as a protected trait for antidiscrimination:

The Statute’s Delight
A Statute that Guido “construed”
Was happy to be so renewed.  “I had thought that the text
Explained I was sexed;
Now I’m LG-BTQ’d.”

Volume II, 252.  Guido is also a poet.  He comes from the world of universals, and spent decades in academia pondering “the structure of the Law.”  Volume II, 202.  As Guido transitioned to the bench, he mastered the judicial craft while still—as he had done as a scholar—uncovering, and illuminating, the invisible patterns behind murky caselaw.  His poetic inclination is perhaps the most prominent in tort cases:  As Guido reflects on one of his first opinions, Taber v. Maine, the “length and the style may be a mite too academic,” though “it helps everyone understand the recurring issues” about the Federal Tort Claims Act.  Volume II, 201.  But Guido also recognized that his judicial role means that he must be more of a historian at times—that is, to “restrain[] the inclination that [he] certainly then had to write opinions as though they are law review articles.”  Volume II, 202.

An insight from this part of Guido’s oral history is that we must not only grasp the “history” of cases, but also read their poetry.  Guido explains that every judge writes for a constituency:  “[A]ll judges write for the Law,” but “each of us has, also, a special audience located back in the places from which we come, that we feel we have to answer to, whether consciously or subconsciously.”  Volume II, 202.  While judges “can and should” write for their own “particular constituency,” they cannot do so “to the extent that it makes it difficult for other legal constituencies.”  Id.  This self-consciousness and self-restraint, for Guido, constitute the art of judging.  The law aspires to the universals of poetry, but understands the institutional constraints that ground it in the particulars of history.      

What Guido taught me—as his law clerk and as a scholar—is this courage to read the poetry of the law.  In advocacy, we rely on the particulars of caselaw, because doctrine persuades lawyers, or at least is their vocabulary of persuasion.  One of my recent articles, Antidiscrimination and Tax Exemption (107 Cornell Law Review 1381), focused on the Bob Jones University case from 1983.  I followed my lawyerly instinct, and argued that the doctrinal logic clearly meant that the IRS should deny tax exemption to 501(c)(3) organizations that discriminate on the basis of any protected trait (i.e., not only race).  Such a result, I had thought, countered Robert Cover’s famous critique of the case in Nomos and Narrative—that the Court failed to articulate a public commitment against subsidies for discrimination, in view of the insularity and autonomy asserted by the tax-exempt groups.  In retrospect, mine was a historian’s project, in the Aristotelian sense.  Cover saw something different—beyond the issue of tax exemption and charitable deductions—a battle between antidiscrimination and insular autonomy.  Perhaps he read more the poetry of the law, and as Guido instructs, all of us can too.

-- Alex Zhang



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