The other day, I sat having coffee with a friend who has just entered his second year of law school. We talked about the tomes he carries to class, the massive amounts of reading and writing, and the creativity needed to frame information as arguments.
He surprised me with an off-the-cuff comment, saying, “You know the thing that most prepared me for law school? Legal writing feels like composing Star Trek fan fiction.”
Fan fiction is—in case you’ve missed the Fifty Shades of Grey racket—derivative work that appropriates the setting, characters, and sometimes, longer arcs to create a new story. I was floored: I immediately understood his metaphor. I worked it out a little more and asked him some questions, so in case you are wondering whether you can put your fan fic cred next to your LSAT score on that up-coming application, here’s a reconstruction of our conversation:
Both have an Official Narrative. The story bible of American law comes from court opinions, commentaries, and of course, bills passed on Capitol Hill. When researching, that’s a lot of conceptual material to draw upon. The Star Trek canon, while disputed, is also fairly developed: over six hundred television episodes and eleven feature films have contributed to the Starfleet’s universe.
“Sorting through all of that source material gave me the patience and stamina needed for legal research,” he said. “I developed a sense of how the whole fits together, so that even if I don’t know where a passage is, I know where to find it—whether it’s biographical information on Captain James T. Kirk or something on acequias and water rights.”
But his metaphor extended beyond research as an act—Star Trek fan fiction taught him about constructing an argument that works within the confines of an accepted reality. While the Official Narrative is fragmented, storylines and premises offered by the source must be followed. If you are presenting an argument to the court, it has to fit in what has been established in our legal universe.
“Fan fiction is an argument to the audience, though if you want to contribute in an official way, you’d have to present the same argument to executive producers, Paramount, etc.”
To a certain degree, you have to conform to the expectations of what’s been established, though the common conception might be debatable.
“Look at Captain James T. Kirk,” he said. “The formative events in Kirk’s life have been developed in the show. If you write about Kirk, those stories have to support a recognized version of him. Is he a womanizing and reckless swashbuckler who relies on his audacity, will, and personality to win?
“Or is he a disciplined, driven strategist willing to bluff his way out of any situation? I’d say he’s not improvising—he’s calculating. Out of seventy-two episodes, he has sex in eleven, and of those, only three are casual and the rest are part of a strategy. He’s not womanizing like James Bond, but he is using people. Anyway, that’s debatable. That would be part of the argument.”
Sometimes, the Official Narrative has a need: a plot point hasn’t been fully developed, small details sound like suggestions, or there’s an inconsistency. If Star Trek is taken on a series-by-series basis, there might be multiple Official Narratives, so some are excluded while others follow their own continuities. New Mexico might mix Spanish and Mexican laws, Western American traditions, and historic pueblo rights.
“The law is filled with incongruities. Our legal tradition has no problem with the idea that contradictions exist, and we don’t worry about them until they become relevant in a specific case. When it benefits us, we’ll say, ‘Wait, New Mexico! You said this in 1993 and this other thing in 2008!’ And you write a new rule to resolve the problem.”
Or something unforeseen comes up. An actor takes a new job and must be written out of the series.
“Legal thought evolves episodically. In the 1950s, judges would have been asking themselves, ‘How will our torts deal with legal problems caused by superhighways when everything we have in place is set up for horses, buggies, the odd automobile?’ And when demonstrations spread across the South, demanding equal rights for African Americans, the judges are blindsided. The question becomes to ‘how can we write new decisions on something we were unprepared for and have them read like a natural evolution of the law?’ You have to be creative to do that.
“Both law and fan fiction add to an ongoing story, contributing something new and creative. It’s a mixture of persuasion, logic, and imagination.”
So he takes the episodic fragments and shapes them into a plausible narrative. His peers view legal writing as a dry, color-by-numbers approach to technical problems, but my friend doesn’t believe that making an argument is just a logical exercise. He’s gotten comfortable with the ambiguities in our legal system. Deep in his heart, I think he knows that only our suspension of disbelief holds it all together.
- The Official Narrative: A story bible exists. Conceptual material. ST Canon: http://en.wikipedia.org/wiki/Star_Trek_canon.
court opinions, academic commentaries, and pieces of legislation passed by congress or the state legislature, sometimes fragments or conglomerations. taken together, creates one narrative, have to make an argument to the authorities that your addition should come
st 600 television episodes and 11 feature films—the canon—if you want to contribute to it in an official way, you have to present an argument to exec produces and paramount, etc.
fan fic is an argument to the audience, telling the audience that your piece fits.
so you know who kirk and picard and the united federations. you have to conform to expectations.
I want the court to issue this opinion and this piece will follow the body of knowledge/narrative/universe that we have. it behaves by the same rules.
good fan fic is making it fit, but also doing something new and creative
law must evolve to fit changing circumstances—while this fits with prior American traditions set forth in our constitution.
legal thought happens episodically. an actor suddenly leaves, must be written out of series. demonstrations across the south for equal rights for African americans. 1950s judge wouldn’t have predicted (would be how will our torts deal with superhighways and the legal problems that come up when we’re set up for horses??), but then the
have to make it look like a natural evolution.
took pitches from anyone, not necessarily the writers guild—slush pile of submissions, the production staff would have to (third season—“yesterday’s enterprise” how history had been altered through time travel—was pitched, but then production staff had to deal with the consequences)
take court cases in the 1860s not conceived for present day—here’s a law doesn’t seem relative, but with a great analogy, this is applicable (time travel story)
fan fic is an persuasion, logic, and imagination. adding to an ongoing story.
- Although the Official Narrative is fragmented, storylines and premises offered by the source material must be followed:
- New Mexico’s water law is derived from the mixture of Spanish and Mexican law with the West’s traditional rule of first in time, first in right. While New Mexico is clearly a prior appropriation state, New Mexico’s water law also accommodates historic pueblo rights and reserved Indian rights.
- Parts of the Official Narrative are under debate—are they self-consistent? These storylines and premises may contain contradictions. If there are multiple Official Narratives, are some excluded while some are encouraged to follow their own continuities, like series-by-series?
- the law is contradictory all the time. our legal tradition has no problem with the idea that contradictions—don’t worry about it until becomes relevant in a specific case. “wait co! you said this in 1993 and this other thing in 2008!” you must wirte a new rule to resolve this.
- canon not consistent: the official dates of the first ST could support either time frame: 2264-2269 or 2270?? the tie-in writer would have to go the eds. at pocket books and say “for the purpose of this book, will be 2269.” or have writers put in a line of dialogue “when our mission ended in 2270.”
- The Official Narrative has a need: a plot point hasn’t been fully developed, the details sound like suggestions.
- Characters and settings are appropriated:
- James T. Kirk. The formative events in Kirks life. If you write about Kirk, those stories have to support the version of (is he womanizing, reckless, flies by seats of pants swashbuckler, casual meaningless sex, audacity and will of personality makes him win.
- in 1960s disciplined, driven, calculating strategist willing to bluff his way out of a situation is he has to, but not improvising—he’s calculating. in 72 episodes, he has sex in 11 episodes, and of those only three are casual and the other are part of strategy to . not like james bond. he does use people, but not womanizing. (maybe someone would disagree, but then an argument ensues—that’s what lawyers do.)
- the characters in the law are ideas and concepts. (?)
- A new story emerges:
- Our suspension of disbelief holds it all together.
a lot of law students think that writing legal arguments is like technical writing, but is fascinating and creative. a chore, suck, mechanical.
civil rights and con rights tend to be less dry and technical, more like something you would want to read. a sense of place and character.
oil companies can come to Albuquerque and drill because city and county govs can’t say no once a company was issued permits by the state. look to Colorado for a case that seems similar. a lot of opinions there say (privacy) people have basic individual human rights that the state government hasn’t acknowledged—how will drilling
I have to extract dozens of scattered story fragments (bits of TV episodes, or of judicial opinions) from an Official Narrative (a TV show, or the ironclad statements of the courts), then shape them into a coherent narrative (a Star Trek story that plausibly resonates with previously aired episodes, despite its unofficial status; a legal argument that plausibly fits into the tapestry of US judicial opinions, despite its whacky and unconventional makeup).
making an argument is not just a logical exercise. being comfortable with ambiguities.
“the crossroads of time and character” (welty)