Variations on a Theme by Hoagy

I had learned a lot that semester, but had another lesson still to learn. It was late fall 2002 and I was giving the last class of my first course of my first year teaching law. As I neared retiring from the bench, I’d been invited to teach at ASU. Eager to teach what I knew and reexamine what I thought I knew, I devised a seminar in statutory interpretation. “This course will be deeply theoretical,” I told my students, “but also intensely practical. We’ll study the range of theories of what judges should do when interpreting statutes, and we’ll examine the range of things that judges do do when interpreting statutes. As a thinker, you can adopt any theory of statutory interpretation that you please, but as a lawyer you’ll need to master a full range of interpretative techniques. Whether they fit your theory of interpretation or not, you’ll need to know and use whatever techniques can help you win your case at hand.”

The semester had been rich in lessons — at least for me. The first had been offered by one of my sons near the start. “Dad,” he said in the gentle tone the knowing sometimes take with the clueless, “if you see that your students have their laptops open and are typing away, don’t assume they are tuned in and making notes of all you say.” This was sound advice. Two other lessons were that I had set an ambitious goal for a two-credit seminar (one two-hour session per week) and that the number of available credits might affect how much effort a student chose to put into a course. My course had no exam; grading depended almost entirely on a seminar paper; and I had set deadlines for both an encouraged first draft and an optional second draft, offering to make extensive comments and suggestions on any drafts my students submitted by those deadlines. To my surprise, not a single student took me up on the optional second draft, and a few skipped even the first draft, content to take their grading chances without seeking my preliminary draft review.

But now it was the last class, and with the final paper deadline approaching and exams pending in other courses, we were unlikely to squeeze more interpretative juice from the cases we’d been reading. A class treat seemed in order. And why not one that could illustrate an essential theme of the course — the fluidity of interpretation? A perfect ending, it seemed to me, would be to play four widely differing interpretations of a familiar song.

The song I chose was “Stardust.” Aside from being a personal favorite, it was listed by Guinness as the most recorded of all popular songs. I burned four versions onto a disc. The first was the most obscure; in the album “Two of a Mind,” the jazz saxophonists Paul Desmond (alto) and Gerry Mulligan (baritone), accompanied only by bass and drums, launched into a set of improvisations so distant from the melody that even one aware what they were playing had to strain through several choruses before hearing any familiar element of the song. Next was Clifford Brown’s version, a rich set of trumpet improvisations with the melody close enough to the surface that I expected some if not all of the class to recognize it. The third was Willie Nelson’s straight, unembellished vocal; at its first strains, everyone, I knew, would recognize what we’d been hearing. And last we’d hear “Stardust” as sung by its author, Hoagy Carmichael, accompanying himself on the piano. After this evocative finale, I’d remind the class of Karl Llewellyn’s dictum that the “quest” of statutory interpretation “is not properly for the sense originally intended by the statute, the sense sought originally to be put into it, but rather for the sense that can be quarried out of it.” (See Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to be Construed, 3 Vanderbilt Law Rev. 395, 400 (1950)). And on that high note, contemplating how much material an imaginative interpreter might find to quarry, we could exit, hopefully humming Hoagy’s tune.

The class did not go quite as expected. Not surprisingly, no one recognized the tune as Desmond and Mulligan jammed their way along its borders. “That was pretty obscure,” I acknowledged as we moved to the Clifford Brown version, “but some of you may recognize it now.” Wrong. No light dawned. And then I unleashed Willie … and again all stares stayed blank. No one in the class, it seemed, had ever heard that song before.

What to assume and what not to assume was an excellent final lesson, and one I had repeated chances to study through my years of teaching law.