“To see a world in a grain of sand,
And a Heaven in a wild flower,
Hold infinity in the palm of your hand,
And eternity in an hour.”
– William Blake, Auguries of Innocence
We’ve long been enamored with the idea that sources of insight reside all around us. Before we did drug and device law, we worked on consumer products liability cases that posed extraordinary challenges. The stakes were high, the plaintiff lawyers were relentless, and jurors came in with brutal preloads. And let’s just say some of the company documents were smoking hot.
One of our client’s in-house counsel had been a brilliant trial lawyer, and he had a talent for finding teachable moments everywhere. He would preside over team meetings and embroider a theme provoked by some shred of news or popular culture. For example, he took a magazine piece on the difference between journeys (there’s a destination) and expeditions (let’s head out and find what we find) and offered suggestions for exploring new litigation approaches.
We are not half the litigator that fellow was, and we are surely less well read. Nevertheless, we believe any truly committed lawyer can find something useful in almost anything. In these dog days of summer, our back-up beach or pool reading is usually The New Yorker magazine. We’ve been reading it for approximately 45 years. (Yikes!) As an experiment, we flipped through the July 10 & 17 issue to see if it would furnish any inspiration.
You know what? It did. (Or maybe you’ll decide differently. But remember how much you paid to read this little ditty).
The opening piece in the Talk of the Town section tore apart the recent SCOTUS decision on the Harvard and University of North Carolina affirmative action programs. We’re not going to wade into that quagmire. You don’t read this blog to catch our vibes on culture war issues. Plus, remember how Michael Jordan refused to take a stand on political issues because, as he said, Republicans also buy sneakers? From the perspective of law firms, we are mindful of our clients’ predilections. If you want to call that a chilling effect, so be it. In addition, some people claim to prize diversity without tolerating diversity of opinion. (By the way, when it comes to diversity, isn’t it awful that eight of the nine Justices graduated from Harvard or Yale law school?) But even aside from the ruling on the use of race in college admissions, there are a couple of interesting features of the case that are relevant to our less dramatic corner of the law. First, The New Yorker characterized the decision as “a new departure.” It really is hard to square it with Bakke, Grutter, Gratz, etc. SCOTUS changes its mind, even when it pretends not to. Sometimes, of course, that is good. Second, maybe in some respects things won’t be that new in college admissions. The decision explicitly allowed that college applicants could describe in their essays how they overcame racial discrimination. Do you care to guess how that will affect things? Savvy high school students (or those who benefit from good and expensive coaching) will now up their chances of entering elite colleges by showing off an elite skill in storytelling.
Hold onto those two thoughts for the moment.
For our clients, the most consequential and most awful SCOTUS decision from the last term was probably Mallory, which blew up the Daimler and BMS limits on personal jurisdiction by blessing Pennsylvania’s corporate registration statute, which required consent to personal jurisdiction. We criticized that decision here. Actually, SCOTUS did not quite bless the statute; it merely held that the statute did not violate due process. Justice Alito’s concurrence suggested that Pennsylvania’s corporate registration statute, to the extent it drags corporations into Pennsylvania courts for actions having nothing to do with Pennsylvania, might violate the dormant Commerce Clause. We ran a guest column on that possibility here. So there’s hope for defendants. With SCOTUS, and even with stare decisis, every day is a new day.
The New Yorker issue had an article by Casey Cep on “The early works of Tennessee Williams.” Williams was never one of our favorite American playwrights. “Cat on an Hot Tin Roof,” “Night of the Iguana,” “A Streetcar Named Desire,” “Summer and Smoke,” etc., are undeniably arresting, but to our eyes they seem flat-out crazy, with only an erratic, faint connection to anything we’ve seen in our (perhaps sheltered) years on this planet. But imagine our delight and surprise when we learned that Williams was a clerk at the International Shoe Company in St. Louis. Williams described it as “hard labor”. It mostly consisted of “dusting sample shoes in the morning and typing factory orders for the rest of the day.” International Shoe, as any first year law student knows, really was a “new departure” in personal jurisdiction law when SCOTUS fashioned an entirely new “minimum contacts” analysis in 1945.
The wretched Mallory decision did not attempt to reconcile its reasoning with International Shoe. We’d like to think that Mallory will one day be viewed as a frolic and detour. Why do we harbor such a hope? We hate litigation tourism. The New Yorker article quotes from a Williams semi-autobiographical story about a shoe factory clerk in St. Louis standing on the roof of the factory looking “out over the eastern horizon with its hazy intimation of lands stretching beyond the river and the city and perhaps continuing to beautiful, clean undulations until it reached the ocean.” Sure, there’s a Gatsby-ish poetic gaze in that passage. But we cannot help thinking that the shoe factory schmuck is looking toward Madison County, Illinois, where corporations are yanked into court proceedings that end up very much like a Tennessee Williams play: insane and overheated.
The Critic at Large section of the magazine contained an interesting thought piece on whether there really is a need for storytelling. It is called “Tell No Tales” and was written by Parul Sehgal. We can see how there might be second thoughts when everything in our society seems to get shoved into a convenient narrative. There’s no doubt that storytelling can be put to bad uses. After all, anytime we head to trial we can be sure we will hear plaintiff lawyers talk about dollars over lives, David vs. Goliath, and inside vs. outside (what is known vs. what is disclosed). Plato wanted to exile storytellers because of their devious manipulations. But if the other side is going to tell stories, we have to, as well, and our story had better be better than, “don’t believe their story.” (To be sure, though, it is nice when plaintiffs overreach – they almost always do – and we can punish such overreaching and wreck their credibility).
Storytelling on the side of the defense is a tough game. It is easy to think of defensive stories that didn’t work. For example, King Charles I defended based on the divine right of kings. The defendants at Nuremberg relied on the obeying-orders defense, as well as pointing out that Churchill said some nice things about Hitler. Socrates denied that he corrupted the youth of Athens or undermined their religion, concluding that his sentence should be a nice dinner. In To Kill a Mockingbird, Atticus Finch, representing Tom Robinson against a bogus rape accusation, delivered an eloquent address against prejudice. Every one of those defendants was convicted. Several were executed. Socrates got hemlock, not a nice dinner.
We need stories, but we need better stories. What are those stories? (Please don’t start yapping about how “the good people at XYZ Corp. come into work every day trying to better your lives.” Yawn.)
Well, we have some ideas. But you’re going to have to buy us a nice dinner. Or just look around. There are hints of compelling stories everywhere. Some are even in your favorite magazine.