Law and Literature Part 17

*for what they had done, and love for Big Brother . . . They begged to be shot quickly, so that they could die while their minds were clean.

(pp. 210211)30 Christianity puts people's thoughts on a moral par with their actions; adultery in the mind is a mortal sin just like adultery in the flesh (Matthew 5:28). Priests correspond to the Thought Police of Orwell's novel; the confessional, a mode of surveillance as well as of absolution, corresponds to the telescreen. Both the Church and the Party oppose s.e.xual pleasure because it creates private bonds and generates thoughts and feelings that priests, and in Oceania the Inner Party, can't control. "Not merely the love of one person, but the animal instinct, the simple undifferentiated desire: that was the force that would tear the Party to pieces" (p. 105).31 A deeper connection between totalitarianism and Christianity in the political vision of Nineteen Eighty-Four is the idea that one is always under surveillance, no matter how alone one thinks one is. The Christian is under surveillance by G.o.d, and the inhabitants of Oceania by Big Brother, who like the Christian G.o.d is "infallible and all-powerful . . . n.o.body has ever seen Big Brother. He is a face on the h.o.a.rdings, a voice on the telescreen. We may be reasonably sure that he will never die, and there is already considerable uncertainty as to when he was born. Big Brother is the guise in which the Party chooses to exhibit itself to the world. His function is to act as a focusing point for love, fear, and reverence, emotions more easily felt toward an individual than toward an organization"

(p. 171).

The Inquisition was the pathological extreme of the Christian concern with what Orwell calls "crimethink." It is gone, along with most of the other machinery of religious thought control in the countries of the developed world, including such once strongly Catholic countries as Italy and Ireland. So is Nineteen Eighty-Four, at least as satire (an important quali "Orwell plays brilliantly upon traditional religious language." Joseph Adelson, "The Self and Memory in Nineteen Eighty-Four," in The Future of Nineteen Eighty-Four 111, 116117 (Ejner J. Jensen ed. 1984). To get the point, one need only subst.i.tute "G.o.d" for "Big Brother" and "burned at the stake" for "shot" in the quoted pa.s.sage.

See Robin West, "s.e.x, Law, Power, and Community," in On Nineteen Eighty-Four: Or-well and Our Future 242 (Abbott Gleason, Jack Goldsmith, and Martha C. Nussbaum eds. 2005).

fication, as we are about to see), merely a period piece? It might be, were it not for the terrorist attack on the United States on September 11, 2001, and the subsequent, smaller attacks in Spain and England. The threat of terrorism that these events crystallized has created pressure to inst.i.tute comprehensive domestic surveillance. Not yet the telescreen, but surveillance cameras in city streets and proposals to allow the "vacuuming," for clues to terrorist plots, of the vast amount of electronic communication to which modern computer and communications technology, unforeseen by Orwell, has given rise. As with telescreen monitoring in Nineteen Eighty-Four, the volume of electronic communication has become too great to be monitored by human beings. But technology unforeseen by Orwell is overcoming the limitations of human search. Computer search programs winnow vast amounts of electronic traffic, flagging the tiny fraction of the intercepted messages suspicious enough to warrant being read or listened to by human intelligence officers.

So Nineteen Eighty-Four has achieved a new cultural resonance, as a warning not against totalitarianism but against privacy-destroying surveillance. But to sound a frequent note in this book, it would be sad if so fine a work of literature as Nineteen Eighty-Four were valued only as a dramatization of political and legal anxieties. Beneath the political satire is a vivid, suspenseful, atmospheric romantic adventure story-in places even a melodrama, even a boy's adventure story, as when the villains, O'Brien and Charrington, recite nursery rhymes or Charrington is seen without the disguise that had made him look old. The scenes in his shop bear the stamp of Conrad's novel The Secret Agent, while the visit of Winston and Julia to O'Brien's apartment for induction into the nonexistent rebel Brotherhood could be a scene in a spy novel by John Buchan.

The fairy-tale note is sounded in the opening sentence: "It was a bright cold day in April, and the clocks were striking thirteen" (p. 5). We soon discover that there is nothing uncanny about a clock's striking 13 in Oceania; the regime numbers the hours 1 to 24, the military method of timekeeping. It likewise uses the dollar rather than the nondecimal English currency of Orwell's day, and the metric system in place of English weights and measures. These simple rationalizing measures turn out to be sinister examples of the Party's determination to empty the culture of its historical residues, to make the present discontinuous with the past.

The literary significance of the telescreen has less to do with techno**ogy or privacy or even thought control than with enhancing the perilousness of Winston's affair with Julia, the need for their elaborate rituals of concealment, and the inevitability of eventual detection and punishment. The suspense is so intense, right up to the dramatic arrest scene, that inevitably the third of the book that remains is anticlimactic. The most didactic portion of the book is the long selection from The Theory and Practice of Oligarchic Collectivism that Winston reads (to us, as it were) just before he and Julia are arrested, yet it has enormous dramatic impact. But the first post-arrest scene, with Winston in a holding cell with other political prisoners, though intended to be horrifying succeeds only in being disgusting-and with the entry of Parsons, who expresses pride in his seven-year-old daughter for having turned him in for thought crime,32 even a bit ridiculous. O'Brien, the Inner Party member who dominates the last part of the book, is a tad too villainous when he declares that "progress in our world will be progress toward more pain" or that "we shall abolish the o.r.g.a.s.m" (p. 220), though the latter dictum parodies the ascetic strain in Christianity, and his Irish name reinforces the link that the novel forges between Catholicism and totalitarianism.33 His determination to make Winston believe that if the Party says 2 + 2 = 5 it must be so is a too deeply buried allusion to the Soviet Union's five-year plans to be recognized by most readers;34 it makes...o...b..ien seem more like a bullying schoolmaster trying to drum the rules of arithmetic into the head of a slow student than like a torturer.

These are quibbles. The point is that to appreciate Orwell's novel fully we need to read it as we read Kafka, or "The Waste Land" (with which Nineteen Eighty-Four has some curious affinities), for the vividness of its nightmare vision relieved by the occasional poignant glimpse of redemptive possibilities, rather than just as a political tract. When we do so we discover-and in Brave New World as well-a Romantic dissatisfaction with modern life. In the earlier novel the elimination by science of the tragic aspects of the human condition destroys the possibility of romance, See note 24 above.

On the link between O'Brien and Catholicism, see also Firchow, note 15 above, at 118 n. 25.

34. The slogan "2 + 2 = 5" was used to urge workers to complete the first five-year plan in four years. Steinhoff, note 29 above, at 172.

while the love affair that is the emotional core of Nineteen Eighty-Four is exalted by the proximity of terror and death and even by the ordinariness of the lovers-no juvenescent technology for them. Julia is neither beautiful nor clever, is in fact rather shallow, and Winston, with his varicose veins, his five false teeth, his "pale and meager body" (p. 118), is already middle-aged at 39.35 Their relationship-like that of Jordan and Maria in For Whom the Bell Tolls and Frederick and Catherine in A Farewell to Arms, of Andrei and Natasha in War and Peace and Julien Sorel and Louise de Renal in The Red and the Black, all apt precedents in the literary tradition36 (and we can keep going back, to Paolo and Francesca, to Romeo and Juliet, to Milton's Adam and Eve37)-would lack savor were they not "real" people confronting terror and danger and the certainty of doom. His love for Julia is the last thing that Winston relinquishes under torture.

From this perspective we see that the significance of the paperweight that Winston buys in Charrington's shop is to show how even the most commonplace object can become luminous when it is bracketed with danger. One is put in mind of how some people get a greater kick out of s.e.x when there is a risk of discovery.

I noted that Nineteen Eighty-Four treats s.e.x as "the force that would tear the Party to pieces." Although the s.e.xual relationship of Winston and Julia does not succeed in doing that, it does transform Winston from a Julia is 26 years old, which means that 13 years separate her from Winston-another sinister touch.

Notice that in all these pairings, including Winston-Julia, the woman is quintessentially feminine and hence sharply differentiated from the man. (With reference to Julia, see Leslie Tentler,"'I'm Not Literary,Dear': George Orwell on Women and the Family,"in The Future of Nineteen Eighty-Four, note 30 above, at 47, 5051.) That is a convention of Romantic literature.

After the Fall, Eve tells Adam: "Let us seek Death, or he not found, supply / With our own hands his office on ourselves" (X.10011002). Adam rejects her proposal for a mutual suicide pact; but he does decide to die rather than give her up. The theme of young lovers' choosing death will culminate in Villiers de l'Isle Adam's novel Axel (1890) (see Edmund Wilson, Axel's Castle: A Study in the Imaginative Literature of 18701930 [1931], reprinted in Wilson, Literary Essays and Reviews of the 1920s & 30s 641, 819823 [2007]), and in its real-life counterpart, the (supposed-there is some uncertainty about the incident) mutual suicide of Crown Prince Rudolf of Austria and Baroness Marie Vetsera in 1889, alluded to in Part I of "The Waste Land."

*pa.s.sive to an active opponent of the regime.38 But is it true that the s.e.xual instinct poses a threat to totalitarian government? Probably not.39 Does it matter? No, because it is a literary imperative that s.e.x in Nineteen Eighty-Four be subversive. Otherwise it would not be a danger to the regime, and the book would fall apart. Also, it sounds a faint optimistic note in a novel that would otherwise be too unrelievedly pessimistic to be enjoyed.40 Winston and Julia failed, but their successors will "tear the Party to pieces." We know this, if we are very careful readers, because the novel ends with an "Appendix: The Principles of Newspeak," which, as Margaret Atwood points out, "is written in standard English, in the third person, and in the past tense, which can only mean that the regime has fallen, and that language and individuality have survived."41 Few successful works of literature since the Greeks, however tragic, end without a ray of hope. For example, though Lear and Hamlet die, the bad people have been vanquished and good people will rule; and Meursault, though doomed, achieves happiness in his last days.42 To attribute to Orwell a Romantic fascination with the theme of love braided with danger, cruelty, doom, and death will seem perverse to anyone who expects a work of imaginative literature to be continuous with the public persona and conscious self-understanding of the author. Or-well, as everyone knows, because he told us and because it was true, stood for honesty, simple decency, plain talking, common sense, abhorrence of cruelty, delight in the texture of ordinary life, and the other conventional English virtues. But to write imaginative literature one must have an imagination, and imagination draws on the mind's unconscious depths. The author of Nineteen Eighty-Four, who objected to the publisher's blurb Thomas Horan, "Revolutions from the Waist Downwards: Desire as Rebellion in Yevgeny Zamyatin's We, George Orwell's 1984, and Aldous Huxley's Brave New World," 48 Extrapolation 314, 326328 (2007).

See Richard A. Posner, s.e.x and Reason 238239 (1992); Ca.s.s R. Sunstein, "s.e.xual Freedom and Political Freedom," in On Nineteen Eighty-Four, note 31 above, at 233.

40. Horan, note 38 above, at 329.

Margaret Atwood, "George Orwell: Some Personal Connections," in Atwood, Writing with Intent: Essays, Reviews, Personal Prose: 19832005 287, 290291 (2005). See also Fir-chow, note 15 above, at 125129.

This point is related to Cleanth Brooks's argument, which I mentioned in chapter 8, that Elizabethan tragedy mixes the comic with the tragic in order to be true to life.

because "it makes the book sound as though it were a thriller mixed up with a love story,"43 was a more interesting person than we think and perhaps than he knew.44 It would be absurd to deny political, even philosophical, significance, let alone purpose, to either novel. (But the economics in both novels is terrible!) Huxley's novel is a powerful satire of utilitarianism. Orwell's satire of communism has lost its urgency, but his reminder of the political importance of truth45 and of the dependence of complex thought on a rich vocabulary (that is, that language is a medium of thought as well as of communication and expression), and his warning about the malleability of the historical record, remain both philosophically interesting46 and timely in an era in which history textbooks are rewritten to comply with the dictates of political correctness. And while Orwell was not much interested in technology, it is easy to see how current advances in photographic simulation and computer data manipulation could facilitate a project of rewriting history; easy, too, to imagine the transformation of Winston's workstation into a computer terminal on which to edit "history" conveniently stored online, just as the telescreen can be imagined morphing into electronic surveillance by the National Security Agency.

O'Brien is an arresting spokesman for idealism in its zaniest philosophical sense: he denies that there is any reality apart from human consciousness. His program of rewriting history-not just history textbooks -resonates with the long-standing philosophical debate over the epistemological robustness of testimony.47 So Orwell's novel is among other George Orwell, Letter to Roger Senhouse, Dec. 26, 1948, in Collected Letters, Essays and Journalism of George Orwell, note 26 above, vol. 4, p. 460.

Orwell's "real allegiance was to the self, the romantic genius picturesquely estranged from everything and everybody, who must always be free to feel exactly what he feels and to say exactly what he pleases." W. Warren Wagar, "George Orwell as Political Secretary of the Zeitgeist," in The Future of Nineteen Eighty-Four, note 30 above, at 177, 196.

In the sense of factuality-truth with a lower-case t, not the Truth of religious or political dogmatism.

Young, note 16 above, at 1118. Cf. Peter Carruthers, Language, Thought and Consciousness: An Essay in Philosophical Psychology 5152 (1998).

"The mutability of the past is the central tenet of Ingsoc. Past events, it is argued, have no objective existence, but survive only in written records and in human memories. The past is whatever the records and the memories agree upon. And since the Party is in full contro**things a premonitory rebuke of postmodernism. This troubled the pragmatist philosopher Richard Rorty. He acknowledged that Nineteen Eighty-Four is commonly read as the work of "a realist philosopher, a defender of common sense against its cultured, ironist defenders."48 But as an antirealist, an "ironist," Rorty resisted an interpretation that aligned the novel with his philosophical opponents. He pointed out that Orwell was not a philosopher and was not trying to write philosophy. But he overlooked the political significance of a rhetoric of realism.49 Rorty said that "the fact that two and two does not make five is not the essence of the matter."50 But to Orwell insistence on simple, homely truths was the essence of the matter-was an essential bulwark against totalitarianism.51 Rorty made the same mistake as the determinist who criticizes the legal system for excluding from evidence confessions that are not the product of the defendant's "free will." Judges are not taking sides in a philosophical debate but identifying politically unacceptable forms of coercion.

A distinguished addition to the body of doom-laden futuristic fiction is Margaret Atwood's 2003 novel Oryx and Crake. Set in the near future, it depicts a world that is a recognizable version of our own but that has been ruined by catastrophic global warming, biodiversity depletion, the destruction of privacy by the electronic media, and the permeation of the atmosphere by toxins and pathogens. The world is dominated by a technocratic elite that lives and works in "Compounds" sealed off from the squalor and sickness of ordinary human life. A member of the elite-a young scientist turned executive named Crake, employed by a bioengi of the minds of its members [as well as of all records], it follows that the past is whatever the Party chooses to make it" (p. 176). Compare C. A. J. Coady, Testimony: A Philosophical Study (1992).

Richard Rorty, Contingency, Irony, and Solidarity 172 (1989) (footnote omitted). See also id. at 173.

"A realist vocabulary of moral progress has . . . pragmatic benefits." Robert Justin Lip-kin, "Pragmatism-the Unfinished Revolution: Doctrinaire and Reflective Pragmatism in Rorty's Social Thought," 67 Tulane Law Review 1561, 1600 (1993).

50. Rorty, note 48 above, at 178.

51. See James Conant, "Freedom, Cruelty, and Truth: Rorty versus Orwell," in Rorty and His Critics 268 (Robert B. Brandom ed. 2000), esp. pp. 299300, 310.

neering firm-grows dissatisfied with the human race and decides to destroy it and replace it with one of his own design. The mode of destruction that he successfully employs with the aid of an unknowing accomplice, an exotic Asian woman named Oryx, is a global biological attack by means of a hemorrhagic pathogen like Ebola that causes a gruesome death (as in the movie Outbreak). The rational superiority of the designer race that is to replace us is ill.u.s.trated by its ability to digest "caecotrophs." These consist of "semi-digested herbage, discharged through the a.n.u.s and re-swallowed two or three times a week . . . a way of making maximum use of the nutrients at hand. Any objections to the process were purely aesthetic. That was the point, Jimmy had said. Crake said that if so it was a bad one" (pp. 158159).

The continuity between the older dystopian fiction of Huxley and Orwell (and before them of H. G. Wells) and Atwood's novel is notable. Her "pleebs" are Orwell's "proles"; the idea of rigid cla.s.s distinctions based on intelligence rather than heredity is one she shares with Huxley and Orwell; the technocratic elite that inhabits the "Compounds" corresponds to the Inner Party in Nineteen Eighty-Four and the Controllers in Brave New World. The idea that animal-human hybrids (her "pigoons," created at "OrganInc Farms"-a corporate name that capsulizes Atwood's vision of the future) acquire human cunning with no diminution of animal savagery echoes Wells's Island of Dr. Moreau, while the attribution of sinister intelligence to pigs can be traced to Animal Farm. Atwood's protagonist, Jimmy, one of the few surviving human beings-after the culminating catastrophe he renames himself "[Abominable] Snow-man"-is a knockoff of Robinson Crusoe; the t.i.tle of Atwood's last chapter, "Footprint," is a clue. Crake puts one in mind of Orwell's villain O'Brien, and Jimmy-in his ordinariness and, when he has become Snowman, his physical decrepitude ("He looks down at his body in dismay" [p. 10])-of Winston Smith. Orwell's original t.i.tle for Nineteen Eighty-Four was The Last Man in Europe; Snowman looks to be the last man in the world. The idea of social control through pharmaceutical and genetic interventions, prominent in Atwood's novel, is Huxleian, while Jimmy's tour of the "Watson-Crick Inst.i.tute," in which grotesque experiments are performed, echoes Gulliver's tour of Laputa's scientific inst.i.tute.

*Crake is a credible twenty-first-century intellectual psychopath, with his autistic hyperrationalism and techie-bureaucratic talk, as in "Let me walk you through a hypothetical scenario" (p. 210) or "It was an elegant concept, though it still needed some tweaking" (p. 295). One knows people like Crake, and people like the lesser characters as well, such as Jimmy's father and stepmother and his "Life Skills" high school teacher. The psychological verisimilitude of the characters makes it seem that it is indeed our world that is ruined, as does the fact that the catastrophes described in the novel are recognizable extrapolations from current dangers. The destruction of the nation's coastal regions (Harvard gone the way of Atlantis), the horrific daily thunderstorms, and more ("as time went on and the coastal aquifers turned salty and the northern permafrost melted and the vast tundra bubbled with methane, and the drought in the mid-continental plains regions went on and on, and the Asian steppes turned to sand dunes" [p. 24]) are a realistic pessimist's vision of where global warming-the menace of which has grown since Atwood wrote-is taking us.

"Chickien.o.b" is "a large bulblike object . . . Out of it came twenty thick fleshy tubes, and at the end of each tube another bulb was growing . . . Just the b.r.e.a.s.t.s, on this one . . . That's the head in the middle . . . There's a mouth opening at the top, they dump the nutrients in there. No eyes or beak or anything, they don't need those" (p. 202). This is a plausible extrapolation from current genetically modified organisms, as are the pigoons and wolvogs and other animal hybrids in which the novel abounds. Even the Crakers-the designer race that features such improvements, besides the caecotrophs, as skin impervious to the elements (so Crakers don't need clothes), a regular rutting season to eliminate romantic entanglements, a horror of violence, and a diet of roots and gra.s.s to economize on food costs-are on the scientific horizon, along with the geekocracy in gated compounds, the erosion of privacy by the electronic media (the novel imagines a website called "nitee-nite.com" where one can watch people commit suicide), and the migration of tropical diseases to the Northern Hemisphere as a consequence of global warming.

Atwood has turned Orwell on his head. She worries about the consequences not of centralization of power but of its decentralization. It is the difference between the world during and after the Cold War. The collapse of the Soviet Union is only the most dramatic of the changes that created our current highly decentralized international system, with its proliferation of small nations, its weakened governments and alliances, a consequent reduction in the efficacy of government regulation both national and international, and a concomitant increase in the autonomy of markets, many global in scope or effects. These interlocking trends have furthered and been furthered by technological advances, particularly in the production and dissemination of information (in the broadest sense, including entertainment) and in the creation of new biological ent.i.ties.

The combination of international capitalist compet.i.tion unshackled by governments with rapid technological progress is a libertarian's dream. But realists understand that there is a downside. Individuals, corporations, and nations tend out of selfishness not to internalize (that is, take into account in their decisions) the costs that their activities impose on people with whom they have no actual or potential contractual relations. A polluting enterprise, even if untrammeled by law or regulation, will consider the effect of its pollution on its workers, whom it may have to compensate in the form of a higher wage for bearing any known risks to their health. But it is unlikely to consider the effects on society as a whole, let alone on the inhabitants of foreign nations or the members of remote future generations. That is the rationale for legal and other regulatory limits on pollution and on other negative externalities, such as methods of computer encryption that might insulate criminal conspiracies from surveillance by law enforcement authorities or, conversely, methods of surveillance that might enable corporations and police to manipulate and intimidate the population.

The helplessness of government to control the threats that technology poses to civilization is a marked feature of Oryx and Crake. Government is invisible in the novel except as an extension of business. There are no courts or regulatory bodies, and even the omnipresent security organ, the "Corp[orate]Se[curity]Corps," is not a public agency. The Greens, a potential counterweight to irresponsible capitalist enterprise, filling a gap created by the attenuation of government, are depicted as hopeless. In fu *tile protest against a new genetically modified coffee ("Happicuppa") that is putting small coffee growers out of business, a Boston Coffee Party sprang up. There was a staged media event, boring because there was no violence-only balding guys with retro tattoos or white patches where they'd been taken off, and severe-looking baggy-b.o.o.bed women, and quite a few overweight or spindly members of marginal, earnest religious groups, in T-shirts with smiley-faced angels flying with birds or Jesus holding hands with a peasant or G.o.d Is Green on the front. They were filmed dumping Happicuppa products into the harbour, but none of the boxes sank. So there was the Happicuppa logo, lots of copies of it, bobbing around on the screen. It could have been a commercial. (p. 180) The herbivorous Crakers are a parody of Rousseau's conception of unspoiled human nature, but also of those naked vegetarians, Adam and Eve before the Fall. The vegan who burns Jimmy's imitation-leather shoes is another target of Atwood's satire; and the atheist intellectual is put on a par with the soulless corporation as a menace to humanity. Social conservatives should relish Atwood's a.s.sociation of p.o.r.nography, in which the future she depicts is awash, with moral decay. Yet her focus remains steadily on extinction, not decay; nor is it clear that Crake's moral deformity is a cultural product. There have always been Crakes. Only now they are much more dangerous. And the more scientific brainpower that is deployed to fight them, the more scientists there will be who, like him, know how to use technology to commit terrorist acts of appalling magnitude.

Oryx and Crake is brilliantly imaginative, scientifically plausible, and terrifying. Fantasy in the service of realism, it makes environmental and terrorist threats incomparably vivid. And these are matters that increasingly are the business of the law.52 Dystopian science fiction is a stock in trade of the film industry as well as of novelists, but only one such film that I have seen can stand comparison 52. A portent is Ma.s.sachusetts v. EPA, 127 S. Ct. 1438 (2007), which holds that the federa*with the great dystopian science fiction novels. That is The Matrix (1999), set almost two centuries hence and distinguished not only by astonishing special effects (since transcended, however, owing to the rapid progress of digitization, including the special effects in The Matrix's otherwise disappointing sequels) but also by superb acting, editing, and pace and the timely and ingenious twist that it gives to the old theme of mind control; think of such film cla.s.sics as The Manchurian Candidate and The Invasion of the Body s.n.a.t.c.hers, as well as Nineteen Eighty-Four and the parable of the Grand Inquisitor in The Brothers Karamazov.

Superintelligent robots ("sentient [computer] programs") have conquered the world and enslaved mankind. Human beings are programmed to believe they're living normal lives in the closing years of the twentieth century; actually they're inhabiting a virtual reality in which they are fed flawless impressions of an external world. They are like "brains in a vat," a subject of philosophical speculation from Descartes to Robert Nozick, except that they are entire bodies in a vat because the robots need human bodies as a power source. While the bodies lie entubed, their "avatars" (the video-game term for one's electronic persona) roam in cybers.p.a.ce. So realistic is the video-game world created by the "matrix" (the robots' computer system)-because the games are played in the head rather than at a console, none of the players except the handful of rebels know they're playing-that the death of one's avatar causes the physical body to die unless one is exceptionally strong-minded. That is, unless one is Neo, the movie's hero, who returns to life after having been killed in virtual reality while killing not only the programmed human beings whom he encounters there as police or other pliant tools of the robots but also, unprecedentedly, some of the robots themselves (though they don't stay dead).

The movie's merger of physical s.p.a.ce with cybers.p.a.ce is a clue to how the evolution of robots and, what is closely related, continued advances in digitization may one day create a world much like that depicted in The Matrix, a world in which we might disappear into our avatars. Such Clean Air Act authorizes the Environmental Protection Agency to regulate emissions of carbon dioxide by motor vehicles. Emissions of carbon dioxide caused by burning fossil fuels, such as coal and gasoline, are a major cause of global warming. On catastrophic risks generally, see my book Catastrophe: Risk and Response (2004).

*"ma.s.sive multiplayer online role-playing games" as The Sims, EverQuest, Lineage, There, and Second Life are portents. Second Life, for example, allows one to create beautiful scripted 3D objects in a totally live online environment-from weapons to clothing lines to motorcycles. Explore a rapidly changing and expanding world simulated on over 100 servers (with new land added almost daily), containing hundreds of thousands of user-created objects, daily and nightly hosted events, games to play, and people to meet. Buy and sell land, create a business, or exchange virtual for real currency. It's up to you.

According to Second Life's home page, from which this description is quoted, Time magazine has described Second Life as "the Matrix minus the evil machines."53 The idea of the human body as an energy source is absurd; milking the inert human body for electricity would consume more energy, to keep the body alive, than it would produce. But the scientific premises of The Matrix are otherwise plausible extrapolations from known scientific principles and existing technology. Paralyzed people in a forthcoming experiment will have chips implanted in their brains "to enable them to operate a computer by thought alone" and "will have a cable sticking out of their heads to connect them to computers, making them look something like characters in 'The Matrix.'"54 MIT Media Lab Europe has created Mind Balance, a video game in which the player wears a headset that picks up his brain waves noninvasively and uses them to make the moves in the game.55 53. For a comprehensive study of Second Life, see Wagner James Au, The Making of Second Life: Notes from the New World (2008).

54. Sheri Waldrop, "The 'Bionic' Patient," 15 PT: Magazine of Physical Therapy, Jan. 2007, p. 56; Richard Martin, "Mind Control," Wired News, www.wired.com/wired/archive/13.03/ brain.html (visited Mar. 20, 2008); Andrew Pollack, "With Tiny Brain Implants, Just Thinking May Make It So," New York Times, Apr. 13, 2004, p. D5. Already monkeys have been trained to operate by mind control a mechanized arm replica for feeding themselves. Meel Velliste et al., "Cortical Control of a Prosthetic Arm for Self-Feeding," 453 Nature 1098 (2008).

55. Jo Twist, "Brain Waves Control Video Game," BBC News, Mar. 24, 2004, http://news .bbc.co.uk/2/hi/technology/3485918.stm (visited June 12, 2008).

Even now, VWs [virtual worlds] offer something that is perhaps a bit more than a mere entertainment to which the players have become addicted. Rather, they offer an alternative reality, a different country in which one can live most of one's life if one so chooses. And it so happens that life in a VW is extremely attractive to many people. A compet.i.tion has arisen between Earth and the virtual worlds, and for many, Earth is the lesser option.56 As it was for Cypher, the traitor in The Matrix.

Yet at bottom The Matrix, like Nineteen Eighty-Four, is a romantic fairy tale. Strong-minded as Neo is, he would have died had it not been for a kiss by the heroine, Trinity, in a gender reversal of Sleeping Beauty. Surprisingly, it is an optimistic fairy tale. The intimation that in the end humanity led by a racial-and gender-diverse group of ordinary Americans-a group that by definition can accomplish anything-will prevail because robots live by rules and human beings are free, and the insistent parallels to the Christ story and Jewish messianism,57 prevent the film from being terrifying.

Science fiction most famously but not only by Jules Verne predicted scientific discoveries and technological applications long before they came to pa.s.s. Oryx and Crake and The Matrix may be genuinely prophetic (think of how many of the predictions in Brave New World have proved to be accurate), in accordance with Stephen Hawking's dictum that "today's science fiction is often tomorrow's scientific fact."58 Prophetic or not, these works illuminate aspects of technology that challenge the governance of society by law. The legal profession, Edward Castronova, "Virtual Worlds: A First-Hand Account of Market and Society on the Cybernian Frontier" 10 (CESifo Working Paper No. 618, Dec. 2001). See generally Castronova, Exodus to the Virtual World: How Online Fun Is Changing Reality (2007).

See, for example, Paul Fontana, "Finding G.o.d in The Matrix," in Taking the Red Pill: Science, Philosophy, and Religion in The Matrix 159 (Glenn Yeffeth ed. 2003). Thus I was imprecise when I said that a kiss saved Neo from dying; he did die, and was resurrected by the kiss. The distinction is important to the movie's religious imagery.

58. Hawking, "Foreword," in Lawrence M. Krauss, The Physics of Star Trek xi, xiii (2007).

*whose roots are in rhetoric, theater, religion, and politics rather than in science and technology, has lagged badly in adjusting to the scientific revolution. Could it be-paradoxical as this must seem-that literature and film could help the profession come to terms with modernity?

chapter 11.

Improving Trial and Appellate Advocacy

Sherlock Holmes to the Rescue?

efore the trialthere is the investigation, whether or not it takes

the structured form of pretrial discovery; and before the judgment there is the presentation of evidence to judge or jury. Investigation and proof might be thought aspects of the litigation process that literature can illuminate. The unraveling of mysteries is a common subject of literature by no means limited to detective stories (about which Edmund Wilson famously wrote that "the reading of detective stories is simply a kind of vice that, for silliness and minor harmfulness, ranks somewhere between smoking and crossword puzzles").1 Think of the interrogations by which Oedipus unravels the mystery of the plague visited upon Thebes or the device by which Hamlet proves Claudius's guilt (the play within a play). These examples could be multiplied endlessly. But we might expect the world's most famous fictional detective to be an especially useful guide to investigation and proof, since unlike some detectives, both fictional and real, who merely stumble upon the clues that lead to the discovery of the 1. "Who Cares Who Killed Roger Ackroyd?" in Wilson, Literary Essays and Reviews of the 1930s & 40s 677, 681 (2007).

419.

*criminal, Sherlock Holmes prides himself on basing his investigations on logic and science. Might the investigators whom lawyers retain to help prepare their cases or the lawyers who present the results of investigations at trial learn from Sherlock Holmes? The answer is "no," which will prepare us for other disappointments as we explore how the study of literature can contribute to the practice of law-but there will be successes to describe as well.

Sherlock Holmes is the object of a cult, and this has given rise to a style of investigation wilder than anything one can find in Conan Doyle's stories. The cultists present conjectures, often fantastic, that proceed from the a.s.sumption that Holmes and Watson were real people, Watson being the Boswellian author of the stories and Conan Doyle merely his literary agent. The latest annotated edition of Holmes stories2 speculates in voluminous notes about the biographical data omitted from the stories, such as the date when Sherlock Holmes was born, when (and whether) he died, whether he had a s.e.x life, and what model of revolver Watson carried, the last being the subject of an entire appendix. Theories are spun to dispel the many inconsistencies in the stories, in the manner of a real biographer confronted by conflicting accounts of his subject. The inconsistencies are sometimes the result of a deliberate choice, as when, having killed off Holmes in what he thought would be the last Holmes story, Doyle decided in response to his public's clamor to resurrect him and felt he had to explain in the first new story why Holmes had disappeared for three years. More often the inconsistencies are simply mistakes resulting from Doyle's having become bored with writing detective stories but being unwilling mainly for financial reasons to abandon the genre. For example, a note to "The Adventure of the Speckled Band" points out that the railroad timetables of the day reveal that Holmes's client could not have arrived at Baker Street as early as she did from her home near Leatherhead. That is doubtless a mere mistake, but the note speculates that Watson (the nominal author of the Holmes stories, remember) changed the location of her home in the story to protect her privacy but neglected to change the train times to conform (vol. 1, p. 230 n. 4).

The speculations reach a dizzying crescendo in the notes to "The Final Problem," the story in which Holmes and the archcriminal Moriarty 2. The New Annotated Sherlock Holmes (Leslie S. Klinger ed. 2004) (2 vols.).

plunge to their presumed deaths in the Reichenbach Falls. Suggestions for what really happened include: "Holmes staged the entire affair to obtain a three-year rest-cure for his drug addiction"; "Holmes imagined Moriarty and travelled to the falls bent on suicide"; "Moriarty was invented by Holmes to explain his lack of success in an increasing number of cases; Holmes's ego would not allow him to admit that ordinary criminals had outsmarted him, so he invented a master criminal"; Moriarty eluded Holmes and "subsequently achieved moral rehabilitation and, a.s.suming the name J. Edgar Hoover, pursued a career in law enforcement in the United States" (vol. 1, p. 747).

Omissions in a fictional character's biography can give rise to genuine interpretive puzzles. How many living children had Lady Macbeth? The play doesn't say. That is strange. If she has no children, why is Macbeth troubled at the thought that Banquo's progeny rather than his own will become kings of Scotland? But if she does have children, none of whom will inherit the throne, why is this fact, which certainly would have preyed on Macbeth given his dynastic ambitions, never mentioned? But the Sherlock Holmes cult is not interested in interpretation; it wants a consistent biographical account because it is committed to the pretense that Holmes and Watson and (less certainly) Moriarty and the rest are real people-including, on the strength of "The Adventure of the Suss.e.x Vampire," Count Dracula. According to one Sherlockian, "Dracula and Moriarty were one and the same person, although Watson was unaware of the fact" (vol. 2, p. 1579).

Sherlock Holmes himself would have had no truck with such absurdities. A trained chemist who performs important scientific experiments when he is not investigating crimes, he claims to owe his success in solving crimes to being scientific and logical. The key, he tells Watson, is collecting and a.n.a.lyzing data, and the difference between Watson and him is that while Watson merely sees, he observes. Actually Holmes's methods are not scientific or logical and bear little resemblance to the methods used to investigate crimes in either his day or ours. He employs none of the scientific tools of criminal investigation that were available at the time, unless a magnifying gla.s.s is considered a tool of science. A person who was scientific in his approach to solving crimes would have been guided by theories about the motives and the character of criminals, the demography of the criminal cla.s.s, the frequency of different sorts of crime, and *the characteristic methods employed by the various types of criminal. Holmes has no such theories, and they would do him no good. The only crimes he investigates are ones that, being sui generis, can be counted on to baffle a reader of detective stories, and such crimes can be solved only by the inspired guess.

The villain in "The Adventure of the Speckled Band," Dr. Roylott, had lived for many years in India, and having a "pa.s.sion also for Indian animals, which are sent over to him by a correspondent" (vol. 1, p. 234), had acquired for his English estate a cheetah and a baboon. Baboons are not native to India, and this has given the Holmes cultists fits trying to explain away what was doubtless a simple error by a busy and bored author. A note tells us that "either Dr. Roylott's 'Indian correspondent' was acquiring animals abroad or [another character's] identification of the animals is mistaken" (vol. 1, p. 235 n. 20). The first explanation is inconsistent with Roylott's pa.s.sion for Indian animals and the second with the fact that Holmes and Watson see the baboon. Holmes guesses-correctly, of course-that if Roylott obtained two wild animals from India, maybe he obtained a third-a poisonous snake. This is not a logical or scientific demonstration, or even a product of careful observation; it is a shot in the dark.

The Sherlock Holmes stories were written when England was still the world's leading scientific nation (though Germany was nipping at its heels). Science had enormous prestige and fascinated the educated public, so Doyle was clever to cast Holmes as a scientific thinker. But he is a caricature of a scientific thinker. He is a lone wolf who notices, and records in his memory, everything in his field of perception. His solitariness and observational omnivorousness are not defining characteristics of the scientific inquirer. The scientific method is to confront hypotheses with objective (that is, observer-independent) data that may falsify them, in the hope that some hypotheses will pa.s.s the test and thus provide building blocks for theories that will generate additional hypotheses. The detection of crime can be scientific. The detective may suspect someone, but he must be prepared to abandon the hypothesis of guilt if fingerprint evidence, DNA evidence, the reliable confession of someone else, or other persuasive evidence falsifies the hypothesis. Being unwilling to work with other people because you are too proud to accept a.s.sistance or despise their intelligence and having a garbage-pail memory are not the characteristics of successful scientists.

The observational acuity that Holmes so prides himself on is epistemic nonsense. Invariably upon first meeting a prospective client Holmes will recite to an amazed Watson after the person leaves all that he learned about the visitor from the scuff marks on his shoes, the calluses on his fingers, and so forth; and this is taken as a sign of Holmes's perspicacity. The reductio ad absurdum is Holmes's wowing Watson by "deducing" (in "The Bos...o...b.. Valley Mystery") that the window in his bedroom is on the right side of the room from the fact that the left side of his face is not shaven as smoothly as the right, presumably because the sunlight was coming in from the right in the morning when he was shaving (vol. 1, p. 108). But think about this for a moment. Only if Watson was facing north-and we do not know whether he was, because no points of the compa.s.s are mentioned-would the window on his right have been facing east and thus admitting the morning sunlight.

In the real world, upon first meeting a prospective client a lawyer or a private investigator listens attentively to the client's story rather than studying his person for features almost certainly irrelevant to the purpose of the encounter. But because we are in a make-believe world Holmes's random observations are always pertinent to his investigation except when adduced to demonstrate his genius, as in the case of Watson's asymmetric shaving. In real life the observations would be irrelevant, a distraction, a sign of vanity. For there is a near-infinite number of data points in our visual and auditory fields and one cannot take them all in at once, as Holmes claims to do. One needs a sorting mechanism.

Holmes supposes the mind to be a tabula rasa, explaining in "The Cardboard Box" that "we approached the case, you remember, with an absolutely blank mind, which is always an advantage. We had formed no theories. We were simply there to observe and to draw inferences from our observations" (vol. 1, p. 438). That is not how the mind works. There is always preselection: you notice the things that are relevant to some interest of yours. Good lawyers understand that judges and jurors approach a case with preconceptions that it is the lawyer's objective to reinforce or overcome, depending on whether the preconceptions support or undermine his client's case. The lawyer who supposes that a judge's or a

juror's cognitive processes operate in the manner that Sherlock Holmes claims his do is headed for disaster. We want our judges and jurors to be open-minded and therefore not make up their minds before they have heard all the evidence. But to be open-minded does not mean allowing nothing to influence one's judgments except the evidence. That would require ignoring one's common sense, professional knowledge, and life experiences, including experience, direct or vicarious, with similar cases. This would be impossible to do even if one wanted to, but why would one want to? A rational person begins the inquiry (the trial, let us say) with rational preconceptions and adjusts them as the evidence in the case is presented. That is the essence of Bayesian decision theory;3 Sherlock Holmes is not a Bayesian. But might it not be that what he or Doyle is doing is fitting the details he observes into a story from which the solution to the mystery will emerge as its culmination, the final rung on the ladder?

Which brings us to our next topic-where we will discover that the detective story has something to teach the legal profession after all, though something unrelated to techniques of investigation and proof.

Legal Narratology A story is a narrative, that is, a sequence of events invented, selected, emphasized, or arranged in such a way as to vivify, explain, inform, or edify. Stories "must have beginnings, middles, and ends" and be "so constructed that the mind of the listener, viewer, or reader [can] take in the relation of beginning, middle, and end" and "see the end as entailed by a process."4 The story need not be true but it must be coherent, intelligible, and significant. Narrative thus is a principle of organization that "transforms loose talk into coherent discourse"5 and can clarify an abstract a.n.a.lysis by turning it into a story-think of Hobbes's Leviathan, Weber's The Protestant Spirit and the Ethic of Capitalism, Nietzsche's Genealogy of Morals, Marcuse's Eros and Civilization, Nozick's Anarchy, State, and Utopia, Foucault's Discipline and Punish. Nietzsche was not writing as 3. See my book How Judges Think 6568 (2008).

4. Peter Brooks, "The Law as Narrative and Rhetoric," in Law's Stories: Narrative and Rhetoric in the Law 14, 17 (Peter Brooks and Paul Gewirtz eds. 1996).

5. Robert Darnton, The Forbidden Best-Sellers of Pre-Revolutionary France 191 (1995).

a historian when he described the sequence of masters-priests-selfovercomers-last men (modern man), but as a polemicist.6 He was saying that one can imagine modern morality as the outcome of a power struggle rather than as a gift from G.o.d or from moral philosophy. A fictionalized history enables a philosophical argument to exploit the rhetorical power of narrative. The social contract imagined by Hobbes and the evolution of the state as imagined by Nozick are other examples.

Not that "story" or "narrative" is synonymous with "fiction." A story can be true or false, while a fiction, even if not entirely made up (ordinarily the setting, at least, is a definite place at a definite time), must contain false particulars, although often with a heavy admixture of literal truths- for instance, a gallery of real people thinly, and sometimes not at all, disguised as fict.i.tious (see chapter 13). Narrative plays an important role in law, a role that is not without an element of fiction. Blackstone set the tone by depicting the English common law as a struggle to recover the purity of Saxon law from its Norman adulterators. Some of our loose-constructionist judges describe const.i.tutional doctrines as the Whiggish outcome of a struggle to overcome ancient prejudices, while strict constructionists prefer Blackstone's fict.i.tious narrative of a struggle to regain past glories. A case law system makes it natural to think of current legal doctrine as the end of a story. Holmes's great book The Common Law (1881) is a Darwinian narrative in which ancient legal doctrines either adapt to changed social circ.u.mstances or die. Guyora Binder and Robert Weisberg describe Robin West's take on Kafka and mine on economics (see chapter 6) as alternative ways of narrating a theory of law-West's a narrative in which the central characters are Kafka's "hapless schlemiels anxious to salvage their bourgeois dignity by consenting to their own discontents"7 and mine a narrative of clear-eyed rational actors maximizing their satisfactions.

Storytelling resembles how we experience life-sequentially. That is why stories are more vivid than textbooks.8 It is why in a trial the plaintiff and the defendant each tell a story-a translation of their "real" or raw Brian Leiter, Nietzsche on Morality 180181 (2002).

Guyora Binder and Robert Weisberg, Literary Criticisms of Law 285 (2000).

8. John Tooby and Leda Cosmides, "Does Beauty Build Adapted Minds? Toward an Evolutionary Theory of Aesthetics, Fiction and the Arts," 30 SubStance, issue 9495, pp. 6, 24, 2001.

*stories into the narrative and rhetorical forms authorized by law-and the jury chooses the one it likes better. (If it is a criminal case and the defendant's confession is placed in evidence, there is a story within the story.) Yet that is not how the law conceptualizes the trial process. The law merely requires the plaintiff to prove each element of his claim separately by a preponderance of the evidence, or beyond a reasonable doubt if it is a criminal case. But if this, the official account of the trial process, were taken literally, plaintiffs would win cases in which the likelihood that their claim was valid was slight.9 What really happens in a trial is that each side tries to convince the jury that its story is more plausible than the other side's.10 Lawyers may be able to learn from fiction how to tell their story better.11 In a Supreme Court opinion that is unusually sensitive to literary values, Justice Souter said that making a case with testimony and tangible things not only satisfies the formal definition of an offense, but tells a colorful story with descrip tive richness . . . Evidence has [persuasive] force beyond any linear Ronald J. Allen, "A Reconceptualization of Civil Trials," 66 Boston University Law Review 401 (1986); Allen, "The Nature of Juridical Proof," 13 Cardozo Law Review 373, 409420 (1991). Suppose that a plaintiff in a tort case must prove three things to prevail on his claim for $100,000 in damages for personal injury (forget any affirmative defenses that the defendant might have): that the defendant was negligent, that his negligence caused injury to the plaintiff, and that the injury imposed a loss of at least $100,000 on the plaintiff. Suppose each proposition has a .51 probability of being true. Then the probability that all three are true (a.s.suming they are independent of each other in the statistical sense) is only .13 (.51 .51 .51). Yet, on these a.s.sumptions, according to the official version of the proof process, which requires only that the plaintiff prove each element of his case by a bare preponderance of the evidence, the plaintiff has proved his case!

The storytelling, indeed mythmaking, potential of the criminal trial is brilliantly discussed by Robert A. Ferguson in reference to the trial of John Brown. Ferguson, The Trial in American Life, ch. 4 (2007). Marco Wan, "Taking Ian Watt to Court: Or How Do Jurors Read Stories?" 12 Texas Wesleyan Law Review 417 (2005), criticizing the a.n.a.logy of juror to reader drawn by Ian Watt, The Rise of the Novel 32 (1957), properly warns against pushing the a.n.a.logy too hard; a jury is not a book club.

Phil Meyer, "Why a Jury Trial Is More Like a Movie Than a Novel," 28 Journal of Law and Society 133 (2001); Brian J. Foley and Ruth Anne Robbins, "Fiction 101: A Primer for Lawyers on How to Use Fiction Writing Techniques to Write Persuasive Facts Sections," 32 Rutgers Law Journal 459 (2001).

scheme of reasoning, and as its pieces come together a narrative gains momentum . . . Thus, the prosecution may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt, to convince the jurors that a guilty verdict would be morally reasonable as much as to point to the discrete elements of a defendant's legal fault . . . A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it. People who hear a story interrupted by gaps of abstraction may be puzzled at the missing chapters, and jurors asked to rest a momentous decision on the story's truth can feel put upon at being asked to take responsibility knowing that more could be said than they have heard. A convincing tale can be told with economy, but when economy becomes a break in the natural sequence of narrative evidence, an a.s.surance that the missing link is really there is never more than second best.12 The legal question was whether a defendant, by stipulating to facts tending to show his guilt, can block the prosecution from presenting those facts through testimony by witnesses. Recognizing the storytelling character of the trial, Souter insists that the prosecution be allowed to tell a story, consistently with the narrative principle that stories must be not only coherent but also in some sense complete.13 But how far may the prosecution go in detailing a defendant's prior crimes? In contrast to French criminal procedure (see chapter 1), American procedure generally does not allow evidence of a defendant's bad character, as revealed (in the usual case) by prior crimes that he has been convicted of, to be presented in a criminal case. Consistent with the Aristotelian concept of corrective Old Chief v. United States, 519 U.S. 172, 187188 (1997). See generally Lenora Ledwon, "The Poetics of Evidence: Some Applications from Law & Literature," 21 Quinnipiac Law Review 1145 (2003).

See J. Christopher Rideout, "Storytelling, Narrative Rationality, and Legal Persuasion," 14 Journal of the Legal Writing Inst.i.tute 53, 65 (2008). The entire issue of the Journal of the Legal Writing Inst.i.tute (vol. 14, 2008-the journal is an annual) in which Rideout's article appears is devoted to the application of narrative techniques to the practice of law. For a useful overview, see Bruce J. Foley, "Applied Legal Storytelling, Politics, and Factual Realism," in id. at 17.

*justice, the determination of guilt is to be based on the criminal conduct with which the defendant is charged. Rule 404(b) of the Federal Rules of Evidence thus forbids presenting evidence of prior crimes unless it is relevant to issues other than the defendant's character (that is, other than his propensity to commit crimes), such as his knowledge. If the defendant in a drug case denies ever having met an alleged coconspirator, the prosecution can present evidence that he had dealt drugs with that person previously.