Accidental Blogger

Malcolm Gladwell, the tireless social commentator and examiner of sacred cows and conventional wisdoms has another provocative piece out. This time he analyzes the cultural and moral disposition of Atticus Finch, a leading character in Harper Lee's To Kill a Mockingbird, the celebrated American novel set in the deep south of the 1930s Depression era. In the New Yorker article Gladwell takes a look not just at Finch the man, but also the lawyer. I did not know until I read the Gladwell piece that the fictional Finch's court room tactics on behalf of his beleaguered client has occasionally been a topic of discussion among real life lawyers. I suppose one does analyze and fret over fictional characters when those characters become iconic symbols with respect to societal arrangements and our comfort levels with accepted norms.

The main question posed by Gladwell however, is: When confronted with unpleasant or unethical laws and practices, whether public figures (authors, politicians, lawyers and others) have an obligation to use their platforms to reform such wrongs with vigorous opposition if necessary, or must they work within the system and let their own personal decency be the guideline for bringing about incremental "live-and-let-live" variety of accommodations?

Since Finch's lawyering skills are discussed at length by Gladwell, I asked my lawyer co-bloggers to comment on the essay. I heard back from a couple of them.

Joe, a recent law school graduate asked:

"I can't stop myself from pointing out that Gladwell is annoying and overrated.  But apart from that, I just don't understand why so many people seem to care about the arguable personal failings of a fictional trial lawyer."

Another co-blogger Anna, a disabilities rights attorney who has been in the legal profession for some time had more to say:

"Unlike Joe, I often like Gladwell's pieces, but this one doesn't work for me. My basic problem is that Gladwell avoids obvious textual readings to force a novel thesis. The worst case of this is his reading of Boo Radley at the end. It's explicit in the book that Boo Radley is not just "reclusive"; he has traits we would probably now describe as a developmental disability. And he's no more "respectable" than Tom Robinson.  It's not the "burden of angel-food cake" that worry Atticus and the Sherriff, but concern over how Boo would hold up under the scrutiny that would accompany the cake. The book clearly connects the characters of Tom and Boo as harmless outsiders at the mercy of an often unkind world: the eponymous mockingbirds of the title, whom Atticus says that it is a sin to kill, because

"Mockingbirds don't do one thing but make music for us to enjoy. They don't eat up people's gardens, don't nest in corncribs, they don't do one thing but sing their hearts out for us. That's why it's a sin to kill a mockingbird."

The politics based on that view are certainly open to criticism, but not through the trite race/class/gender bias-swap that Gladwell posits. Gladwell's right that To Kill a Mockingbirdis, in many ways, a conservative book, but Lee's blind spot is not so much complacency as it is paternalism. As with Uncle Tom's Cabin, in many ways TKM's obvious ancestor, the book's weakness is that in its appeal to readers' sentiments, it limits its underdogs' characters to noble savages.

Whether the Aristotelian value of human decency and empathy within a society troubled by structural injustice is necessarily bad, or just incomplete, is a separate question that I am too tired to tackle here. Ditto the related question–  given the strengths and weaknesses of our current President– of compromise versus confrontation. I tend to believe that the world needs both. "Power concedes nothing without a demand" (Frederick Douglass), but zig-zag battles for hearts and minds create fertile territory for the demand, and are important to implementation of a demand that's been satisfied with an order. Brown v. Board of Education carries tremendous declaratory import, but had Folsom or someone else succeeded in equally funding traditionally black schools, regardless of the reasons for doing so, the process of actually carrying out Brown's dictates would have been far easier.

Because it does not fit his thesis, Gladwell also wholly misses the book's point about Due Process– that justice requires a lawyer to provide the best representation possible even to someone hated and already condemned in the court of public opinion…and that requirement holds true even if the other actors in the process (here, the jury) do not hold up their end of the bargain. I continue to believe in that moral– the value of due process- though having represented more than my share of underdogs and accused, I also think it's hard not to become embittered by the adversarial system."

More thoughts, anyone? Legalistic or just common sensical?  Also, have any of the law blogs discussed the Gladwell article?