Judges Should Cite Dr. Seuss More Often (And Not Just For His Birthday)

Yates v. United StatesHave you ever wondered how courts interpret statutes? Judges usually claim that they apply “traditional tools of statutory construction” to decide what laws mean. It’s a tedious and often arbitrary process.** U.S. Supreme Court Justice Elena Kagan, however, managed to make it a smidge more interesting earlier this week when she cited Dr. Seuss in her analysis of a provision of the Sarbanes-Oxley Act, the law Congress passed in response to the 2001 Enron scandal (Remember that financial accounting nightmare?).

In her dissenting opinion in Yates v. United States, in which our highest court addressed the issue of whether a fish is a “tangible object” under Sarbanes-Oxley, Justice Kagan wrote:Quote from Kagan Opinion (2)The case had to do with a fisherman off the Gulf Coast who ordered his crew to throw undersized red grouper overboard after being caught by federal agents with the small fry. The fisherman argued that a criminal charge under Sarbanes-Oxley was improper because that law, which prohibited the destruction of evidence, pertained to corporate and accounting deception, not fishing. The fish he tossed over were not “tangible things,” he argued, because “tangible things” in Sarbanes-Oxley referred to “tangible things” that contained information, like a record or document.

In the “plurality” opinion, which means a majority of the justices agreed on the result but not on the reasoning, the Supreme Court sided with the fisherman. He’s lucky that Kagan’s humorous use of Dr. Seuss in the dissent — her attempt to show a more conventional understanding of “tangible” — wasn’t more persuasive.

Still, Kagan’s citation to Dr. Seuss demonstrates the author’s enduring impact on our society more than two decades after his death. Most of us have read at least one, if not many, of Dr. Seuss’s classics. He published a minimum of 44 children’s books, which have been translated into many languages and have become the basis for television programs and movies.

On Monday, March 2nd, Dr. Seuss (whose real name was Theodor Seuss Geisel) would’ve turned 111-years-old. That day is not only his birthday, but also the National Education Association’s Read Across America Day, a literacy campaign that encourages every child to read on March 2nd—and hopefully every day thereafter!

Dr. Seuss’s playful language and illustrations are a great way to engage early readers, who have a multitude of Seussian classics to enjoy like One Fish Two Fish Red Fish Blue Fish and The Cat in the Hat. Soon there will be one more, What Pet Should I Get, a previously unpublished children’s book Dr. Seuss may have written between 1958 and 1962. Apparently, his wife found it and other unpublished works shortly after his death, but misplaced these items until 2013. What Pet Should I Get will be available this July.

Maybe our Supreme Court will cite it next term. ;)

So, what are your plans for March 2nd? Do you have a favorite Dr. Seuss book?

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*Top Image: From the cover of One Fish Two Fish Red Fish Blue Fish by Dr. Seuss.

**Here’s SCOTUS Blog’s explanation of Yates v. United States. It’s amusing that all three opinions in this case — Ginsburg’s plurality, Alito’s concurrence, and Kagan’s dissent — purport to apply the rules of statutory construction but reach different results. It goes to show that “statutory interpretation” is really just a crapshoot.

Mr. A.M.B. explained the opinion as follows:

Seventy-two fish came out of the sea.
Their inches were many, but not quite twenty.
“These fish are too small,” said the government,
So he dumped them at sea, to avoid punishment.
He should have just kept the fish, you see,
Because they charged him with Sarbanes-Oxley.
They went to the courts, up to the Supreme,
To see if “thing” means what it would seem.
The Justices voted to settle the score.
There were four, then four, then one more.
Four said a “thing” is a “thing,” it can’t be denied.
Four said a “thing” must be like other things described.
(One said that same thing again, I don’t know why.)
Many have made up stories about what they fish,
But few can say they were absolved by ejusdem generis.

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Elin Hilderbrand’s Beautiful Day: A Diamond Is Forever?

Ring 3

If you’re looking for a novel to exacerbate any insecurities you may have in your marriage, then look no further than Elin Hilderbrand’s Beautiful Day.* One couple is on the eve of a divorce, another has reconciled after a bitter breakup, while another is in the throes of infidelity. In the midst of all of this, preschool teacher Jenna Carmichael and banker Stuart Graham decide to say “I do” in front of their friends and family in Nantucket under the watchful eye of Jenna’s cynical older sister Margot, who’s secretly sleeping with her father’s law partner.

To make matters worse for all involved (whether or not they see it that way), the wedding itself is micromanaged from beyond the grave by Jenna’s late mother, who wrote every last detail down to the color of the linens in a notebook before she died.

What ensues is the wedding weekend from hell. I think we’ve all been to one of those—hopefully not as one of the betrothed!

These are the marriages we wish had broken off during the engagement, if not before.

Elin HilderbrandIn Beautiful Day, we learn about a man who “proposed, gave [his fiancé] his great-grandmother’s ring, [and] broke it off five weeks later,” making his former fiancé “so mad that she never gave the ring back.” It was a Tiffany cut 2.5 carat diamond in a platinum setting, a tremendous loss to the giver’s family for both its monetary and sentimental value. However, the receiver of the ring was not the one to break off the engagement, and whether she must return to the ring as a legal matter depends on the laws of her state.

Generally speaking, a gift is irrevocable. You can’t take it back, but romantic gifts like engagement rings are often exceptions to this rule. Many courts have decided that they are conditional gifts: the ring was given on the condition that the receiving party would marry the giver. In these cases, the analysis focuses on whether the gift was given in the context of a marriage proposal, and not just as a gift for being a girlfriend/boyfriend.

In Lindh v. Surman, 560 Pa. 1 (1999), Pennsylvania’s highest court reiterated the conditional gift principle, quoting Pavlicic v. Vogtsberger, 390 Pa. 502, 136 A.2d 127 (1957):

A gift given by a man to a woman on condition that she embark on the sea of matrimony with him is no different from a gift based on the condition that the donee sail on any other sea. If, after receiving the provisional gift, the donee refuses to leave the harbor — if the anchor of contractual performance sticks in the sands of irresolution and procrastination — the gift must be restored to the donor. Id. at 507, 136 A.2d at 130.

In Pennsylvania, fault is not a factor. The giver of the ring is entitled to its return even if the giver broke off the engagement. California, however, has adopted a different rule, by which the giver loses the right to the ring if s/he was the one to refuse to go through with the marriage. Cal. Civ. Code § 1590.

In Hilderbrand’s Beautiful Day, the applicable law would probably be that of North Carolina, where the doomed couple was from. Though there are sources on the Internet asserting that North Carolina follows a conditional gift rule like Pennsylvania’s, there does not seem to be a published court decision on point. Recently, the Journal of Business & Intellectual Property Law at Wake Forest Law School speculated on how the North Carolina courts would rule in an engagement ring case, concluding:

If the donor gives the gift after the engagement, courts usually consider this a conditional gift.  Implied conditions, however, are recognized in North Carolina, and fault may be also considered.  In other words, expect a very fact-intensive decision until binding precedent has been established.

In Beautiful Day, which only deals with the ring briefly, the giver of the engagement ring contacted an attorney. Having found his legal options limited, he and his family ultimately decided against pursuing litigation for political reasons. Nevertheless, it’s interesting to think about how the issue would’ve played out in fiction until the courts finally establish a rule in real life.

In my opinion, the giver of the ring may have been the one to break off the engagement, but it was his family’s heirloom and giving the gift was conditioned on a marriage that never happened. The person who received the ring—as “wronged” as she may have been—should’ve given the ring back.

 

*Mr. A.M.B. laughed when he read the first line.

 

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“The Best Stories Are The Ones You Know Yourself”

Tea Country Sri Lanka 2012Last week, one of my seven-year-old twins came home from school with a beautiful book, Frederick Lipp’s Tea Leaves, which she chose because, in her words, “It’s about tea, and we drink a lot of tea.”* Yes, we do. As it turns out, though, this book has a closer connection to our family: It takes place in Sri Lanka.

I am half Sri Lankan, making my red-headed daughters a quarter. At 7-years-old, they are already tired of explaining where Sri Lanka is on a map to their well-intentioned peers (“It’s that tear drop island under India!”). We haven’t taken them to visit yet, so their knowledge of the country comes mostly from maps, family members’ stories, books, and their imaginations. Tea Leaves helps them imagine what their grandmother’s homeland is like.

The beautifully illustrated story features Shanti, a nine-year-old child from Sri Lanka’s mountainous tea region. She lives on an island, but has never seen the sea. Her mother, a low wage plantation worker** who also hasn’t seen the sea, encourages Shanti to explore her curiosity by asking her uncle to tell her stories about the Indian Ocean. Uncle Nochi, who takes the tea leaves from the mountains to the coast by train, has seen the sea many times.

Tea Leaves ThumbnailShanti says to him, “Amma says you told her stories about the sea. Will you tell me stories?”

“Hah,” he replies, “the best stories are the ones you know yourself,” thus encouraging Shanti to see the ocean for herself. The question is whether her family can afford the trip.

This picture book, intended for children ages 6+, couldn’t have come at a better time for my daughters. They recently came home from school asking what race they are. Well, that’s not the easiest question to answer. Racial classifications, based on social construction masquerading as genetics, have always been highly controversial. Most people look at my daughters and assume that they’re white, but their background is much more than their skin color.

I tell my daughters that we’re multi-racial, and then delve into a description of the ethnicities that make us who we are, including Sri Lankan, Irish, and Sioux. None of it is new information to them, but they never really cared much about our background before. Since learning at school about Martin Luther King, Jr., and thus also learning about why he means so much to our history, they are now interested in the question.

Tea Leaves offers my daughters a glimpse into a part of their background. Shanti lives in a different region from where our relatives live, but she is a fictional friend my daughters associate with their heritage. Just as Uncle Nochi says, though, real-life experiences are best. We’ll have to take our daughters to Sri Lanka as soon as possible.

*It’s illustrated by Lester Coloma.

**This book also encourages a discussion about poverty and labor conditions. It made my daughters think about how hard people have to work for our cups of tea.

***Images: My youngest sister took these pictures on her trip to Sri Lanka in December 2011/January 2012. The top picture is from tea country. The bottom picture is the Indian Ocean.

Indian Ocean

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Reading Aloud: Ephemeral Entertainment I Wish Would Last Longer

Readers Please Help MeA few weeks ago, I begged the Twitterverse for a list of chapter books as fun as Louis Sachar’s Wayside School series for my 7-year-old twins.

My Twitter friends obliged, suggesting Harry Potter, Giada’s Recipe for Adventure series, and Louis Sachar’s There’s a Boy in the Girls’ Bathroom and Holes.* So far, we’ve read There’s a Boy in the Girls’ Bathroom, we’re in the middle of Holes, and Giada will be next!

Now I’m looking for more books. Some of these novels will be ones my daughters will read privately (which they love to do), while others are ones we’ll enjoy together (which they also love to do).

Reading aloud to my kids — and having them read aloud to me — is one of the most enjoyable parts of parenting. We read together for a couple of minutes every morning at the bus stop, for thirty minutes to an hour at night, and for an hour every Saturday in a Center City coffee shop as we wait for their younger sister’s Spanish class to end and for theirs to begin.

It’s so interesting to read books with my kids. Not only is it an opportunity for me to model literacy for them and assess their reading progress, but it also gives me a chance to talk to my children about topics that wouldn’t come up otherwise.

Sometimes the topics catch me off-guard, as it did when my daughter brought The Butterfly, a very serious picture book, home from the school library last year. I was entirely unprepared to discuss the Holocaust and the Nazi occupation of France with my then-almost six-year-olds.

Even books I thought I knew, like Sachar’s Sideways Stories From Wayside School, sometimes raise heavy issues seemingly out of the blue, like weapons and violence at school.

But the discussions I’ve had with my children about these types of challenging themes have been fascinating. Sachar’s Holes, for example, takes place in a bleak juvenile detention facility, a subject my young daughters knew nothing about. I’ve been so impressed by their grasp of the issues and their empathy for the characters, subjects I’ll address in a later post when we finally finish the book.

Right now, my daughters love reading books with me, and I want to use this time we have together wisely. I want to read as many books together as we can before they “grow up” and retreat exclusively into their own private book worlds. Reading privately is an important part of their self-discovery and development, but I’ll miss our time together with a single book in front of us.

In the past, before TVs, computers, and tablets, reading aloud was a major form of collective entertainment for everyone in the family, not just for the children. Jane Austen, for example, entertained her family and vetted her stories by reading drafts aloud. Anyone who questions the entertainment value of reading aloud need only listen to the audiobook version of Persuasion performed by Juliet Stevenson, whom my husband wishes would read U.S. Supreme Court opinions to him. (He adds, “if only she could use dramatic license to change the content, too.”) Many adults have never really left their love of being read to behind — we just don’t admit it anymore.

While I hope that my family will continue to read aloud together, I think it’s likely that this pastime will disappear in just a few years. Maybe I’ll be able to convince my daughters to join a book club with me someday (not that I’m likely to have much success when they’re teenagers!).

For now, though, I’m looking for books we can read aloud together. Do you have any suggestions ideal for mature 7-year-olds (and their young-at-heart mom)?

*Thank you to Maggie, Jaclyn, and Karma for these suggestions!

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Should Harper Lee’s Lawyer Be Investigated?

Harper Lees Lawyer

Does anyone talk to Harper Lee other than her lawyer, Tonja Carter?*

Not even her editor talks to her directly. As the LA Times reported:

Her editor, Hugh Van Dusen, told New York Magazine that even he doesn’t speak to Lee directly. “She’s getting progressively deafer and more blind, and that’s where things stand. I don’t hear from her…. I think we do all our dealing through her lawyer, Tonja. It’s easier for the lawyer to go see her in the nursing home and say ‘HarperCollins would like to do this and do that’ and get her permission. That’s the only reason nobody’s in touch with her. I’m told it’s very difficult to talk to her.”

I’ve been disturbed by the extreme degree of Lee’s isolation ever since I saw HarperCollins’ press release about its acquisition of the American rights to Lee’s purported To Kill a Mockingbird “sequel,” Go Set a Watchman, a half-century old manuscript that Lee’s lawyer suddenly discovered.

In this press release, HarperCollins quotes Lee as saying, “I hadn’t realized it had survived, so was surprised and delighted when my dear friend and lawyer Tonja Carter discovered it.”

Considering that Carter seems to be Lee’s only contact with the outside world, I wonder if Lee really called her a “dear friend” or whether Carter just wrote that herself. It’s creepy, isn’t it?

I’ve already discussed my skepticism about the origin of this manuscript. It sounds more like an earlier draft of To Kill a Mockingbird, not a separate novel, but who knows. I wouldn’t be surprised if what HarperCollins ultimately publishes is a heavily ghost-written update to whatever Lee had originally written decades ago.

There’s an even bigger question about whether this novel, even if its origin is authentic, should be published at all. Lee had 50+ years to publish it herself, and now we’re supposed to believe that she’s suddenly had a change of heart? We’re also supposed to believe that this change of heart coincides with her declining health?

On this blog, I’ve often expressed my concern about Lee’s headline-grabbing interactions with the legal system because they are all based on allegations that someone has taken advantage of Lee’s health for their own personal gain.

Now the question is whether her own lawyer is also taking advantage of her.

Is Carter committing elder abuse, which is defined under Alabama law as “the maltreatment of an older person, age 60 or above”? It includes material exploitation: “The unauthorized use of funds or any resources of an elderly individual or the misuse of power of attorney or representative payee status for one’s own advantage or profit. Examples include stealing jewelry or other property and obtaining the elderly person’s signature for transfer of property or for a will through duress or coercion.”  Code of Ala. § 38-9D-2  (2014).

Is Carter’s representation of Lee a breach of her ethical duties as a lawyer under Alabama’s Rules of Professional Conduct (Rule 1.14)? This is a topic Max explored today over at Litigation & Trial.

I am reluctant to suggest that Alabama authorities and the bar association conduct investigations that may invade Ms. Lee’s privacy, but Lee’s lawyer and “dear friend” (cough, cough) can’t simply allay the public’s concerns by speaking to the media on her own to say how offended she is by the speculation. Apparently, Lee is also “hurt” by the claims that she’s been pressured into publishing this novel, but all of those statements also come from… you guessed it… Tonja Carter.

I certainly won’t be reading Go Set a Watchman until I know that buying a copy isn’t supporting the exploitation of one of my favorite authors. I’m not saying Harper Lee needs to give a television interview, but, under these suspicious circumstances, surely it cannot be that burdensome or unreasonable to allow a physician (with a HIPAA waiver & possibly a guardian for Lee?)  or someone whose job or relationship with Lee does not depend on the good graces of Carter — to see her and tell the world that she’s okay.

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*This New York Times article (raised in the comments below by Jim) quotes a handful of people who have talked to Lee. It’s helpful to hear these perspectives, though there is no indication of whether any of these individuals are connected to Tonja Carter. Let’s hope Lee is truly doing well. There are many 88-year-olds who are. The concerns here are based on a few facts, including that (1) Lee has previously alleged in lawsuits against her former agent and her hometown museum that others have taken advantage of her declining health; (2) she is publishing a book contrary to her decades-old views on the matter; and (3) her lawyer, who is her primary connection to the world, strictly controls access to her.

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Can We Trust Harper Lee’s New Watchman? (Can She?)

Go Set a WatchmanAgainst the advice of my lawyer, I’m going to talk about Harper Lee’s new novel, Go Set a Watchman, which HarperCollins plans to release in July 2015 amid controversy, a word that may as well be synonymous with “Harper Lee” these days.

By “my lawyer,” I mean my husband, whose practice includes defamation cases. He was joking when he told me to avoid discussing Harper Lee. He thinks I’ve discussed her enough already on this blog. ;)

Joking aside, virtually everything we know about Lee comes from her lawyers or from the lawsuits she’s filed. In 2013, she sued her former agent, Samuel L. Pinkus, for breach of fiduciary duty (among other claims), which I wrote about in When Our Literary Heroes Become Victims.

Later that same year, Lee filed a questionable trademark application and then sued her hometown museum over unauthorized merchandise bearing the title of her book. The trademark was eventually granted when the museum agreed to withdraw its opposition to settle the lawsuit.

I don’t have a problem with Lee using the legal system to vindicate her rights. Indeed, I feel a tremendous affinity for her, given the impact To Kill a Mockingbird (1960) had on my life. As I said in We Were All Children Once (Even Lawyers), one of three posts I wrote while revisiting the middle grade novel as an adult: “Like many lawyers, I count this novel among the influences that eventually led me to law school and to my public interest legal career.”

It was an early literary experience that helped fashion my sense of justice. It gave me a greater understanding of our progress — and our remaining shortfalls — as a society in terms of racial equality.

Like many literary fans, I want to know more about the woman behind one of my favorite novels. However, the controversy surrounding Marja Mills’ “parasitic memoir” featuring Lee, The Mockingbird Next Door, dissuaded me from prying into Lee’s life by reading an unauthorized book. It was particularly disturbing when Lee released a statement in 2014 about Mills’ memoir that said: “any book purporting to be with my cooperation is a falsehood.”

As I wrote then, “Whatever the truth is about how [Ms. Mills] obtained access to Ms. Lee, even the possibility that Mills exploited Lee and her sister renders The Mockingbird Next Door unpalatable.”

Notably, all three of the above incidents revolved around allegations that someone or something had taken advantage of the octogenarian’s failing health. Now she’s back in the news again, and we’re supposed to believe that one of America’s most famously publicity-averse authors is “delighted” that a book she never tried to publish before is going to press.

As the story goes: Lee wrote Go Set a Watchman before she wrote her Pulitzer Prize winning To Kill a Mockingbird. Her editor at the time suggested she rewrite it from Scout’s viewpoint as a child, and the original manuscript (which features Scout as an adult) was lost.

Apparently, Lee has said that she was “surprised and delighted when [her] dear friend and lawyer Tonja Carter discovered it.” Lee’s lawyer had previously been her sister Alice, who died in November at age 103.

So her new lawyer “discovered” the half-century-old story out of the blue, and Lee was “delighted” to publish a book she had kept under wraps that whole time? That sounds a lot like the limelight-grabbing discoveries the Faulkner Estate kept making. It’s possible these fortuitous discoveries are entirely true, but it’s just hard to believe that no one ever found them before.

In Lee’s case, even if the story of Carter’s discovery is wholly accurate, there’s a question about whether Lee has really consented to its publication. It’s curious that she didn’t seek its publication closer to the time her first novel won the Pulitzer Prize.

Has Lee’s outlook on publicity changed? Or is it her mental competence that’s changed? As her lawsuits against Pinkus and others based on incompetence suggest, Lee’s ability to consent to publication at this stage in her life is suspicious. Multiple people in Monroeville who know her personally have raised allegations that Lee was manipulated into the decision.

In yet another statement this week via her lawyer (of course), Lee has now revealed that To Kill a Mockingbird was intended to be a trilogy, of which the middle book was never written — for now, at least. What’s the bet that someone connected to Lee will soon “stumble” on it?

Obviously, as only a casual observer of Lee’s public life, I don’t know what’s really going on. All I do know is that whatever it is, it’s fishy — and very, very sad.

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Is it the Author, the Translator, or Me? (A Review of Butterflies in November)

Butterflies in NovemberIn Auður Ava Ólafsdóttir’s Butterflies in November, an unnamed 33-year-old woman sets out on a journey across Iceland with her friend’s four-year-old deaf child. She’s an editor and translator, fluent in eleven languages, and yet her own first-person narrative is stilted, repetitive, and cliché-laden. As I struggled to make sense of this Icelandic-to-English novel, I wondered about the source of the problem: the author, the translator, or me.

It’s also possible that the prose is intentionally awkward as an expression of the main character’s personality. She readily admits: “Despite my mastery of many languages, I’ve never been particularly apt with words, at least not eye to eye, woman to man.”

That last part—“woman to man”—raises another issue with this book. The text includes an inordinate number of references to, and generalizations about, gender. The main character may challenge stereotypes by being a tomboy, but she also says, for example, “I’m a woman and I know how to remain silent.” Is she being sarcastic, ironic, or serious? I have no idea.

Still, even as I struggled to follow the narrative, this novel kept my attention. There were funny moments that made me laugh, intriguing ones that encouraged me to keep reading, and charming ones that made turning the pages worth it. The most touching relationship is between the main character, a master of so many languages, and a child with whom she can barely communicate because of his special needs. Perhaps the story arc and the off-putting narration are meant to demonstrate the difference between an aptitude in language and the ability to truly communicate with another human being.

It was also fascinating to read a novel that comes from and takes place in a country I know so little about. Iceland’s entire population is one-fifth the size of my American hometown, and the effect of this small size can be seen in the novel. For example, while the main character manages to keep a handful secrets to herself, she also learns on more than one occasion that other people know more about her life than she expected.

Iceland is a small, interconnected place, one where people are also closely related genetically. That issue did not come up in the novel (as far as I could tell!), but it was in the back of my mind thanks to an article I read in The Smithsonian Magazine about an app that helps potential couples in Iceland determine whether they’re actually cousins.

I don’t know how serious a problem this degree of “incest” is (distant cousins only share a small amount of genes).*** All I do know is that Ólafsdóttir’s main character doesn’t seem too concerned that any of the men she sleeps with are her relatives.

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*I learned about this book from River City Reading (Thanks, Shannon!): “Anyone who loves a good, quirky read with a heartfelt center will be more than happy with Butterflies in November.”

**This novel was translated by Brian FitzGibbon.

***I can only imagine the kinds of Google searches I’ll start getting now that I’ve raised this topic on my blog! Ha!

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