On Not Writing

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image by menken, http://mrg.bz/eJG3Gb

Recently, I was having a heart-to-heart-over-coffee in order to avoid grading papers with a colleague of mine. She said that she wanted to spend the summer writing a fun book, not academic research, because ever since she was a kid she only ever wanted to be a writer. I immediately said “me too”—but this wouldn’t be surprising information about me, since I majored in English and have a master’s in creative writing. She majored in Bio. Now, of course, we’re both law professors off the tenure-track. 

We face one of the challenges that non-tenure-track (NTT) academics always face: If you have the luxury to have time to write, do you write scholarship with the hope of forwarding an academic career, or do you write something you might find more fun, and hope to publish it another way?*

In other words, since NTTs are no less driven or intelligent or educated than their TT colleagues (duh), what do we do with our creative energies? Hope that our work will one day get us TT recognition? Or something else?**

While I’ve been writing a lot on Twitter, and working hard to finish open projects (in the knitting world we call these “WIPs”—works-in-progress), I see that the date of my most recent blog post here is 10/18/13, and I don’t have vision for this blog. I don’t have a vision for the future of my writing at all. I have a mounting stack of unpublished book manuscripts (no time to market them to publishers) and conference papers that will never be articles (because more and more I don’t see the point). 

So I’m back to where both my colleague and I both started: we are simply writers. In particular, writers who teach writing to law students. 

Now that I have a premise to start from, I can finish this stack of papers, and see what comes next.

*Of course, all of this writing presupposes that the stacks of papers get graded.

**I’ve been inspired lately by the writing of my NTT Twitter and Blogger friends, such as http://www.kellyjbaker.com and http://pankisseskafka.com. Of course, those two have managed to publish their books. #sigh

Today’s Installment of “Just Don’t” Public Rhetoric

I was driving to pick up some food for my friend who just had a baby. She lives in Cary, N.C., a place I rarely go to except to visit her.

Which is why I’d never encountered this store before: a mail-service store called

GOIN’ POSTAL

I am not making this up. I’m not capable of making this up. Here’s their logo from their website:

Goin Postal Logo

Goin’ Postal Logo

Now, take a look at the beautiful memorial to the postal workers murdered in a 1986 spree killing in Edmond, Oklahoma:

Edmond, OK Memorial

Edmond, OK, Memorial

The name of this company, “Goin’ Postal,” evokes so many deep U.S. societal problems: gun violence, spree killings, mental health issues, workplace violence, and the list goes on.

What “Counts” as Knowledge

A Twitter colleague and I shared an exchange recently that showcased both her beautiful voice and her strong ideas:

I’d tweeted a query to my friends, “What does it take to change the world?” and this was her response. And then I tweeted that knowledge cast aside as “curio” rarely makes it onto the House floor or into a court of law. Thomas continued, in the temporal slide of conversation that Twitter allows, (meaning that we not just writing back-and-forth, but rather alongside):

Valorie Thomas, a professor of English and Africana Studies at Pomona College, isn’t coming at this conversation from a law or legal rhetoric angle (as I am), but our cross-talk comes together in a way that is both fruitful and thought-provoking.

As I read Thomas’s tweets, I immediately thought of two other texts: Michelle Alexander’s book The New Jim Crow (read about it on my last post), and her statement that her “great crime was imagining that there was a path to racial justice that didn’t include those we view as guilty.”

In other words, Alexander, early in her career as an ACLU attorney, found herself unwilling to listen to the story of a young man who had been the victim of police brutality because he had also been convicted of a drug felony—his ability to speak truth had been tainted in her eyes. “Discredited,” as Thomas puts it, above. (Read the Storify of my live-tweet of Alexander’s talk at Wake Forest University last week.)

No longer. For Alexander, her research into the system of U.S. mass incarceration has taught her that she must listen to the stories of felons in order to do her work.

The other text Thomas’s tweets reminded me of was my friend’s Kevin Browne‘s piece (he’s a professor of rhetoric at Syracuse), “Rhetoric and the Stoning of Rachel Jeantel.” Browne wrote and published this piece at a miraculous pace after Jeantel’s testimony in George Zimmerman’s trial for the murder of Trayvon Martin. You should stop, now, and go read it. Then come back here.

In “The Stoning of Rachel Jeantel,” Browne notes the many languages that Jeantel has fluency in:

Even more was made of her language. She speaks Black English. Atlantic Creole. African American Vernacular English. Ebonics. Black sound. She also speaks Haitian Kreyol and Spanish. These three, Jeantel noted, were the languages she grew up speaking.

And because she spoke all of these languages, they were all put on trial, mostly for being different that the “standard white middle class U.S. English that we expect to use in courtrooms.”

Among other things, I noted that, “Black language is on trial.” I should have added that black language—visual, oral, and—was also on display.

And don’t forget the moments when the defense lawyer, West, demeaned Jeantel (which were many):

Naturally, as in any asymmetrical power dynamic, speakers of the nonstandardized language have to defer to the speakers of the standardized language:

West: “Can you understand English?”
Jeantel: “I can understand you.”

Like I said above, you really should go read the whole thing. It’ll knock your socks off.

The point is, Jeantel’s large, black, female body, combined with her unconventional linguistic ability, created a witness that the courtroom deemed unreliable. “The courtroom,” of course, is a stand-in for U.S. society—it acts on our behalf, and we need it to. We just need to be sure it is doing what we want it to. That’s where law professors might have a say in things.

(Browne has also just published a fantastic book on Caribbean rhetorics, Tropic Tendencies: Rhetoric, Popular Culture, and the Anglophone Caribbean. Check it out on Amazon.)

But back to Thomas’s tweets this evening. How do we teach our law students to prioritize alternative sources of knowledge? To prioritize “vernacular thought, theory, community, maps, places, intuitions”? This seems to me to be a critical lawyering skill, at the intersection of client counseling, storytelling, legal rhetoric—and, of course, racial, social, and [ ___ ] justice.

The New Jim Crow and “Those We View As Guilty”

With my colleague Tamar Birckhead, I went to see Michelle Alexander, author of The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New Press 2010), and law professor at Ohio State, speak at Wake Forest University last night (10/1/2013). I live-tweeted the event, a new experience for me, which I then compiled on Storify if you want to check it out.

Early in her talk, Alexander made a statement that really resonated. Describing her search for the ideal plaintiff in a class action suit against police departments in the Bay area for harassment of black people, she had been excluding all potential plaintiffs with a felony conviction. Her encounter with one young man in particular forced her to change her understanding that how racial justice can be achieved at all without taking into account those who had been convicted of crimes. (This story is also recounted in the Introduction to her book, which I recommend everyone purchase.)

She said, “My great crime was imagining that there was a path to racial justice that didn’t include those we view as guilty.”

Yes. Absolutely yes.

In an article I wrote a few years ago, I point out that in many of our national myths, including such favorites as To Kill a Mockingbird, we have a black man accused of a crime that he either didn’t commit, or that he was justified in committing (e.g., films such as A Time To Kill or  Amistad). These “righteous” defendants, often defended in these stories by “White Legal Heroes” (I’m looking at you, Atticus Finch), face criminal convictions that would lead to long imprisonment, enslavement, or death.

The problem with these stories, and all stories in this common genre, is that they (1) depict righteous defendants that “deserve” help and (2) elide the institutional racism of the U.S. criminal justice system.

I wrote:

[T]he innocence, or righteousness, of the black defendants of white legal hero film narratives creates a victim of the law that audiences feel sympathy for. The innocence of these characters disguises the real problem: statistics prove that we apply our death penalty in a racially disparate manner. The defendants in these statistics are often not innocent . . . . However, valorizing lawyers who fight only for the innocent—as these film narratives do—diminishes the work of lawyers who fight to preserve the constitutional rights of all who are charged with crimes, even the guilty. In fact, such lawyers are sometimes demonized for defending men with whom white, middle-class Americans would rarely sympathize.

For example:

There is no doubt—no doubt, even to the U.S. Supreme Court—that race is the determining factor in the application of the death penalty in sentencing in the state of Georgia, or at least it was at the time of the decision in McCleskey v. Kemp (1987). Yet because the defense attorneys in that case could not prove “purposeful discrimination” in a particular defendant’s particular case, the death sentence was upheld.

That is indeed a fight worth fighting.

NC Law Review Symposium 2013: Health Care Decisions & Reform

On Friday, October 4, 2013, the North Carolina Law Review will host its annual symposium on “Health Care Decisions in the New Era of Health Care Reform.” You can get details about the symposium on the website. The faculty co-chairs this year are my colleagues Joan Krause and Rich Saver.

I will be attending the symposium this year, for two main reasons. First, I’m interested in health care reform, particularly because of my interests in mental health care reform. Second, my colleague Tamar Birckhead and I are faculty co-chairs for next year’s symposium, which will be held in October of 2014. Our topic is “Vulnerable Defendants and the Criminal Justice System.”

My research for the symposium next year will focus on psychiatric disability and vulnerability. If you have any new research is this area, please send it to me; I’d love to read it.

Oh no, OSHA

Preamble: This is a blog post about audience awareness.

Today I read a mandatory online OSHA (Occupational Safety and Health Administration) hazardous materials training for employees on a large employer. Below is a screen capture of the welcome screen:

Training Welcome Screen

Training Welcome Screen

The image above is of the first page of the tutorial. I wanted to stop reading right there.

I’m a lawyer and law professor. I work with “promulgated” regulations all the time. I know what the CFR is. (FYI: it is the Code of Federal Regulations, which contains rules created by federal agencies.) But the vast majority of people being welcomed by this screen do not know these things. (And some of these people work with hazardous chemicals and need to stay safe on the job. This will become important in a moment.)

The first thing I thought after reading this welcome screen was this: “Is this tutorial teaching people about the legal history of OSHA communication rules? Why? (Because who cares?)” After all, the screen states, “What is OSHA’s Hazard Communication Standard?” and proceeds to talk about something passed in 1994 and provide a complicated legal citation etc.

Then I realized that this screen is supposed to be explaining the purpose of this tutorial and not quite hitting the mark. Because this tutorial is about the new standard for safety labels on hazardous chemicals. Like this:

OSHA Pictogram

OSHA Pictogram

Here’s the thing. When an employer conveys gobbledegook like this to its employees, the gobbledegook gets in the way of the very safety information that the employee needs to learn. A worker who relies on chemical labels to stay safe on the job needs this information to be safe. For this reason, training tutorials must be written plainly.

So I went to OSHA’s site to see if OSHA actually mandated this complicated language at the beginning of a safety tutorial. My very cursory read of the regulations didn’t find any such mandate, but it did find this page:

OSHA Hazard Communication Page

OSHA Hazard Communication Page

Check out that great tagline: “The standard that gave workers the right to know, now gives them the right to understand.” Excellent intention, poor execution.

Even OSHA’s Hazard Communication web page is difficult to read. The page has a poor design, including multiple fonts and font sizes, unpredictable boxes and columns, and interminable length.

So, my discovery of this web page made me wonder about the process of crafting of tutorials like the one I’m reading today. These safety tutorials—which are important documents—are crafted by folks who are most certainly experts in OSHA regulations and terminology. And these experts gain their expertise from OSHA itself, from the government experts who craft these regulations in the first place.

And what happens next is this: a tutorial like the one I’m reading gets created by insiders, who seek to share insider knowledge—and here’s where things fall apart—to an audience that is an insider audience. This misunderstanding of audience is the real problem.

In order to understand this complex OSHA tutorial, one must already understand this complex OSHA tutorial. That is, one must already be an insider, an expert.

The audience using this tutorial, the folks who really need this knowledge in order to stay safe on the job—they are outsiders, that is, non-experts in OSHA. And that includes me, a legal expert, who can actually understand all the jargon (e.g., “29 CFR 1910.1200“) and yet still be completely baffled by the purpose of the words on the page.

This tale is yet another example of the moral imperative of plain government language.

Introducing: Core Grammar for College

After years of hard work, my co-author Ruth Ann McKinney and I, together with our production team at FireStream Media and our publisher Carolina Academic Press, have released Core Grammar for College.

Core Grammar for College

Core Grammar for College

Core Grammar for College is the second in the Core Grammar Series, following the successful Core Grammar for Lawyers that was released back in 2011.

Core Grammar for College (CGC) is an online, self-directed learning tool designed to help students learn the most critical grammar conventions needed to succeed in college-level writing. CGC is not “remedial,” in that most of our students who struggle with grammar were never taught much grammar in the first place. Best of all, CGC takes a rhetorical approach to grammar: the program places grammar in context, showing how grammar makes meaning in sentences and paragraphs and how writers make grammar choices in particular rhetorical situations.

I’m pretty excited to have this tool available to both new learners of grammar and to those who want to learn the rules that underpin the grammar habits they already employ. Email me if you want to learn more about it.

On Oxford Commas and Yummy Children

Today’s skirmish in the Oxford Comma Wars comes from the New York Times Obituary of Deanna Durbin, 1930s film star.

Here’s the pertinent excerpt:

After moving to France in 1949 and settling outside Paris in the village of Neauphle-le-Château, Ms. Durbin devoted most of her time to keeping her home, cooking and raising her children.

I’ve heard of cooking and raising chickens, but not of doing the same with children.

Revising the above three-part list—making use of the Oxford comma—would impart a far less cannibalistic meaning:

Ms. Durbin devoted most of her time to keeping her home, cooking, and raising her children.

(Hat tip to Professor Eileen Kavanagh of the Thomas M. Cooley Law School.)