The Law and All That Jazz

When we welcomed the Class of 2002 on August 23, 1999, this day must have seemed a long way off. Even the date seemed a little surreal then, didn't it? Somewhere over a millennial horizon. And now the day has come. Your diplomas are tangible evidence of your learning — not just in law school, but in all the years before, too — and your promise in all the years ahead. Your diplomas are precious symbols of your own dedication as well as the love and support of your families and friends. And they are a permanent part of this school's history, the archive of our commitment to help the world respond to the challenges of the 21st century by providing lawyers with the finest possible education in law.

Since September, there has been so much talk of this century's challenges. We know them by heart; we know them in our hearts. Sometimes, this year, our hearts have been heavy with the challenges that often seem to mock our very dreams. To be sure, it has been a difficult season in which we have needed all our inner resources. I know I've often had the last lines of one of my favorite poems as a refrain in my head. The poem is Robert Penn Warren's "Audubon": "Tell me a story," he writes.

In this century, and moment, of mania,

Tell me a story.

Make it a story of great distances, and starlight.

The name of the story will be Time,

But you must not pronounce its name.

Tell me a story of deep delight.

I love these lines, and across the years, I have read them differently, according to my needs. This year, I hear them as assurance that peace can overtake conflict ("In this century, and moment, of mania, tell me a story"), as a testimony to the profound force of love ("the name of the story will be Time — tell me a story of deep delight"), as a reminder that the world's wide spaces can also be beautiful, and the safety of the night assured. Above all, they speak of the deep human need for joy; they remind us not to wait — deep delight shares the dark road with life's other stories.

Can law be a part of this poet's landscape? Or are Penn Warren's lines an anthem reserved for purely private needs? Are law's stories about darkness or about light? Does law tell the story of justice in the dark of night, or only in the morning, when fear has passed? Does law tell its stories only at home, or do they travel the great distances, by starlight? Is there only one story, or is law's story a promise of amplitudes, multitudes (to borrow Walt Whitman's word.)?

As lawyers, we find our own answers to these questions; I want to explain mine with

reasons that I borrow from music. This may seem an odd connection, but jazz — at least to my ear — confirms all that is most hopeful in these questions. If hope needs reasons, these are some of mine. Lawyers are artists — the best are creative and original improvisers who change the music while they play it, and in a way that brings out the other musicians' originality, too. When a jazz musician first hears a tune, he or she relates quickly to its harmonic structure and its rhythm. The melody sets a theme, but it is a theme that you know you will change, develop, allude to, and rewrite. In fact, the essence of improvisation is rewriting the melodies you are playing, as you play them, to explore and enjoy their complexity and affirm their value; improvising on a melody is a way of paying homage — by honoring the tune's endless capacity for generating new music. In jazz, a tune is never the same twice — and yet is always that tune.

The tune itself is a statement, much like a paragraph in print or a stanza of a poem. But when you hear it as a jazz musician hears it, you are hearing all the other statements that can be made with the same basic elements. You're hearing it for its potential, listening to its harmony, rhythm, and melodic structure not as a fixed definition, but as an opening gambit. In other words, you are always saying: "Yes, and moreover...,"or "Yes, but there's another angle on this tune." "Yes, but there's another way to color this that will bring out an even more interesting possibility...." Jazz always begins with "yes" — but that's not a "yes" of compliance or persuasion; it's a "yes" of respect and beginning afresh. This way of hearing a song is what you have in mind when you're improvising as a soloist. When you're playing in a group backing a soloist, you have the same processes going on, but now you are listening to the soloist react to the tune and you're then supporting the soloist by responding to his or her reaction. At the same time, you're listening to the rest of the group, supporting their musical conversation behind the soloist. The full process is a series of conversations — themes and subthemes all interrelating. Many times you won't know in your conscious mind just how these connections are going to occur; you can't plan them, but you can sense them. Improvisation is exhilarating: not just the music, but also the compact of recognition and the knowledge that what is most personal to you and the other musicians — your creativity — is also fully collaborative.

This is not as chaotic as it may sound. You have all acquired the ability to hear someone begin a legal argument on a particular question, and to anticipate where that person is going even before she or he gets there. You know how a certain position "works" — and maybe you know the person, too. Making an effective legal argument — one that works in a new way — takes everything you know, and yet (heroic stories notwithstanding) this isn't a matter of deliberate calculation so much as it is a matter of effective improvisation.

The same is true in jazz. When a soloist begins to jam on a tune within a certain structure, once a couple of melodic statements are in the air you can hear their logic and you hear that logic as the possibility of expressing those statements otherwise. As you come to know the soloist better, and as you come to know your fellow accompanists, you'll hear even more possibilities, because you'll know more about how they think musically. This isn't because they are predictable, but because you have learned to respond to each other's creative language. Jazz improvisation takes very careful listening; but you listen not only with your head and your ears, you listen with your heart, with colors, tempos and moods. Jazz isn't a kind of music; it's a way of making music — of growing music. Improvisation isn't (as some people might think) a diminishment of the tune — it's a surplus. Its closest synonym (in my lexicon) is "discovery."

There is a delight in all of this that stems from the ability to hear ideas in new ways and to realize that a certain complexity, even risk, is often necessary before a tune's potential becomes clear. The point isn't to settle on some new version, the point is always to make more music. I consider music, in this sense, as the firmest evidence that the human capacity for originality, collaboration, and renewal is an inexhaustible resource, and the necessary conditions are mutual respect and attentiveness, even more so than instruments and technique. This is why — for as long as I've been a lawyer and a teacher — jazz has seemed to me to be so near to what it is that we do in law school, and to what lawyers do in their daily work.

Back in '99, we wondered if we could ever be modern enough to live in the new century. Now it is the century itself that seems to have lagged behind, still mired in the last century's wars, with vistas that are far too narrow — too narrow to see the beauty in distance or the arc of starlight. But lawyers improvise with the music of human possibility, and we can call for law's stories even in the midst of mania, in the darkest night, since, like jazz, law is not one story, or a story whose beginning must await the morning, or a story with an ending; law's stories are richly varied and inviting. They remind us of how much more is thinkable under the basic conditions of mutual recognition and concern. And like jazz, the point of law's stories is to enable an answering refrain, and to begin again.

--Alfred C. Aman