Grisham’s Social Issues Wrapped around a Novel
March 13, 2009
Will John Grisham’s legal drama The Appeal (2008) join other literary works like Upton Sinclair’s political fiction novel The Jungle (1906) and Rachel Carson’s literary broadside Silent Spring (1962)  in influencing changes in real world legislation? In his PhD dissertation Gordon (2008) argued that literary works such as those by Harriet Beecher Stowe, Karl Marx, Ralph Nader, Jonathan Swift, Upton and Carson, serve as legislative flash points and have had a demonstrable impact on the law.
Grisham’s writing is clearly popular fiction and he has enjoyed writing books with no redeeming social value like The Broker, but he now wants to tackle social issues (Grossman 2006.) He has fierce political convictions and admitted that, “Everything I’m thinking about writing now is about politics or social issues wrapped around a novel.” He admires the work of Truman Capote, John le Carré and John Steinbeck whom he would like to emulate. So is The Appeal also an appeal to reason ?
John Grisham’s legal drama/legal thriller/crime novels deal with the power and influence of major US corporations in America and their potential for abusing the American legal system. Previous novels concluded with the victims being vindicated and giant corporations paying huge rewards for damages to personal health and to the environment. But in 2006 there was already a shift when he published his first book of nonfiction, a true-crime story entitled The Innocent Man.
The Appeal (2008) is the most openly political book he has written in which he probed the world of US judicial elections, a burning issue in the US (AF-P 2008). The debate over the best way for states to select judges is more than 160 years old. According to Wall Street Journal’s Levy, within days of the release of The Appeal, “critics of judicial elections began to connect it to examples of real-life corruption. Mr. Grisham himself says his story has “already happened” in West Virginia. Others have tried to link the book’s intrigue to next month’s Supreme Court election in Wisconsin, where a controversial judge is facing a strong challenge for re-election, helped in part by business groups. Mr. Grisham has plenty of allies in his crusade among liberal interest groups, who insist that judicial elections somehow represent a blight on the rule of law (Levy 2008-03-20).”
In The Appeal fictional Wall Street financier Carl Trudeau, launched his appeal against plaintiffs from cancer county where his company had dumped toxins for years, to the Mississippi Supreme Court. Then he stacked the Court by funding an unknown to run against incumbent Court Justice Sheila McCarthy. Trudeau flooded media with ads designed to vilify Justice McCarthy as an extremely liberal judge who would protect criminals not citizens and would restrict gun ownership. Trudeau’s campaign allowed Fisk to win the election. Grisham in the telling of this fiction, practically laid out a formula for CEOs, corporate lawyers and politicians to overpower and ruin ordinary citizens while enjoying financial huge gains. The characters are highly stereotyped with lawyers and CEOs who are clearly the bad guys in this story.
The mysterious, expensive consultant Barry Rinehart works quietly in the background using financing from from industries like energy, insurance, pharmaceuticals, chemicals, timber, all types of manufacturing as well as doctors, hospitals, nursing homes and banks, to target supreme court justices whose values differ from these special interest groups. He engineers the fixing of elections so the unfriendly judges lose to their own groomed judicial candidate. (31 states elect their appellate and supreme court judges while the remaining states appoint their courts.) “To Grisham, that is the sad truth: No one’s justice will be served. While chilling, Grisham’s tale of modern legal machinations is also, unfortunately, timeless (Patrick 2008-01).”
“Literature—even persuasively powerful literature—does not operate in a void: conditions must be ripe if it is to draw energy from the social milieu and thereby attain a kinetic force capable of influencing the law. This […] requires an alignment of narratives: the literary narrative with the larger cultural narrative within which it subsists (Gordon 2008:41).”
law and literature movement, dedicated interest groups, big-money politics, Amicus-Curia, Plaintiff’ Paradise, judicial hell holes, consumer-friendly, Cancer County, cancer cluster, pulpit for reform, real world politics, US legal system, vexatious corporate litigation, senior academic lawyers, appelate benches of the Federal Appeal Circuit and the Supreme Court, M$ anti-trust investigations, Anti-Trust suit compliance issue, proven complicity, meritless SCO litigation, Patent and Copyright systems, East Texas fiasco, legal corruption, amicus-curia briefs, Commerce and Justice, Economic Crisis, US corporate malfeasance, US corporate greed, US corporate lack of transparency, tort, Rylands rule, Fletcher v. Rylands, Johnstown Flood,
Timeline of related events
1860 One of the wealthiest industrialists in England, John Rylands, a textile manufacturer, hired a contractor to dig a large ditch and create a reservoir to add water power for one of his mills. The reservoir collapsed into an abandoned coal-mining shaft which connected to Thomas Fletcher’s neighboring coal mines. The reservoir flood destroyed those mines. (Wiki, Shugerman 2008)
1865 Fletcher v. Rylands, 159 Eng. Rep. 737, 740. The dispute in Rylands concerned escape of water onto neighbouring land. Later cases in which the Rylands test was applied involved the escape of all manner of wastes and materials, extending outwards to a broad range of inherently dangerous activities considered essential to modern life. The Court found in favour of Fletcher and ordered Rylands to pay for all the property damage to the mine. The Court agreed that Rylands had a duty in maintaining the reservoir and of being liable for all harm caused by it with broad scope of liability. This case was a major development in modern law and has influenced many subsequent rulings. The changes in negligence law as a field of torts has in some jurisdictions incorporated the Rylands rule. (Wiki, Shugerman 2008)
1889-05-31 In the mountains east of Pittsburg, a dam holding back a 450-acre artificial recreational lake, one of the largest reservoirs in the world, collapsed unleashing 20 million tons of water into the valley below, completely destroying Johnstown and killing two thousand people. The elite members of the South Fork Fishing and Hunting Club, titans-of-industry including Andrew Carnegie, Andrew Mellon, and Henry Clay Frick (also called the Bosses Club) ignored the dam’s crumbling foundation, warnings of structural problems and leakage. It was one of the most deadly disasters in American history. The public focused its anger on the South Fork Club and its wealthy members, and the media called on the club members to compensate the Johnstown victims. Before the Flood, the court emphasized the “great public interest” of industry’s unfettered development, and dismissed the “mere personal [and] trifling inconveniences” that were caused by industrial damage, and which must “give way to the necessities of a great community.” (Shugerman 2008.)
1890s There was a rise of populists as critics of industry’s excess in the 1890s and ruling leaned towards Fletcher against Rylands (Shugerman 2008.)
1980s- US Supreme Court Judicial elections became increasingly nasty, noisy, and costly (Pozen 2008:265).
1981 John Grisham (born 1955) graduated from law school.
1988 The Willie Horton ad from the 1988 presidential race was considered to be offensive and race-bating.
1981-1991 John Grisham practiced law for nearly in Southaven, specializing in criminal defense and personal injury litigation.
1983-1990 John Grisham served in the state House of Representatives.
1984-1987 Grisham wrote his first novel A Time to Kill (1987) in his spare time exploring the theme of what would have happened if the girl’s father in a real trial had actually murdered her assailants. “After four years of practicing I got this idea for what I thought was a very compelling courtroom drama – small town, the South, a racial conflict – all seen through the eyes of an attorney who was basically me. A guy who wanted to be a big trial lawyer. That was my dream. I wanted people to call me – people who could pay me for the big case (Grisham in Slater 2009-01-27).”
1991 John Grisham’s novel, The Firm, was one of the biggest hits of 1991, spending 47 weeks on the New York Times bestseller list. Grisham gave up law and concentrated on writing. All his books have been bestsellers and six have been made into movies. Grisham lives with his wife and two children in Mississippi and Virginia.
1993 “Investor and philanthropist George Soros in 1993 created OSI as a private operating and grantmaking foundation to support his foundations in Central and Eastern Europe and the former Soviet Union. Those foundations were established, starting in 1984, to help countries make the transition from communism. OSI has expanded the activities of the Soros foundations network to encompass the United States and more than 60 countries in Europe, Asia, Africa, and Latin America. Each Soros foundation relies on the expertise of boards composed of eminent citizens who determine individual agendas based on local priorities (OSI).”
1999 Tabarrok and Helland investigated “the forces that explain why trial awards differ across the United States. In 23 states judges are elected and in 10 they are elected via partisan elections. Elections have two important effects. First, defendants are often out‐of‐state nonvoters while plaintiffs are typically in‐state voters. [They] predicted, therefore, that elected judges will redistribute wealth from out‐of‐state businesses to in‐state plaintiffs. Second, the realities of campaign financing require judges to seek and accept campaign funding from trial lawyers, who uniformly are interested in larger awards. [They] hypothesized that these two forces cause awards to be larger in states where the judiciary is elected rather than appointed. [They] also hypothesized that the demand for redistribution will increase as poverty increases and, thus, that awards will be larger in states with greater poverty. Using a sample of over 7,000 cases across 48 of the 50 states, [they] found significant evidence in support of these hypotheses ( Tabarrok and Helland 1999-04).”
1994-2000 “By most measures, Grisham was the most successful novelist of the 1990s, when he sold over 60 million books. For seven straight years, 1994-2000, he had the best-selling novel in the country (Grossman 2006 ).”
2004 Swift boating refers to smear tactics used during the US Presidential campaign against candidate John Kerry. Vietnam veterans who served on the US Navy’s swift boats mounted a smear campaign to oppose Kerry who was a swift boat commander in Vietnam but was later allegedly involved in antiwar activities.
2005-02-18 President Bush signed the Class Action Fairness Act of 2005. This pushed for by business and Republican leaders since President Bush took office in 2001. It targeted consumer-friendly “Plaintiff’ Paradise” courts also termed “judicial hell holes” by corporations being libeled in mutiple-state class action suits (like those in Madison and St. Clare in Illinois and Jefferson County, Texas accused of being pro-consumer). Texas. Those “judicial hell holes,” and others in Alabama and Mississippi, are the favorite venues for some in the plaintiffs’ bar because of consumer-friendly juries and elected judges who routinely certified national classes and apply their state law and/or the laws of other states. Such cases after 2005 ended up in federal court, where corporate defendants tend to do better (O’Brien 2005).
2007 US Supreme Court Justice Annette Ziegler was publicly reprimanded for a conflict-of-interest violation.
2007 Harvard Law School’s Shugerman’s paper entitled “The Twist of Long Terms: Disasters, Elected Judges, and American Tort Law” was selected for the Yale-Stanford Junior Faculty Forum and the Conference on Empirical Legal Studies, New York University. “The received wisdom is that American judges rejected strict liability through the nineteenth and early twentieth century. To the contrary, a majority of state courts adopted Rylands v. Fletcher and strict liability for hazardous or unnatural activities after a series of flooding tragedies in the late nineteenth century. Federal judges and appointed state judges generally ignored or rejected Rylands, while elected state judges overwhelmingly adopted Rylands or a similar strict liability rule. In moving from fault to strict liability, these judges were essentially responding to increased public fears of industrial or man-made hazards. Elected courts were more populist: They were more likely to adopt strict liability than appointed courts. But surprisingly, state courts elected to longer terms were the most populist. Many of these judges never expected to face another election, but even without direct political pressure, they were the most responsive group of judges in adopting Rylands after the floods. This historical episode illuminates the differences between types of political influence on judges. Judicial elections generally may produce judges more sympathetic to public opinion and more responsive to recent events. Longer terms, shielding judges from opposing political pressure from industry favoring the fault rule, then allowed judges to follow those sympathies or new perceptions of public interest in favor of strict liability. The historical record suggests that judicial elections plus long terms shaped a more responsive bench. A shorthand for these effects are: filtering, role fidelity, and fear and favor. First, these elections created a populist filter: Elections seemed to have filtered out some elite jurists from major urban centers and filtered in more local lawyer-politicians, who would be more connected to public opinion. Second, borrowing from the language used by nineteenth-century advocates of judicial elections and by modern historians, I suggest that the elected judges’ “fidelity” to the people led them to perceive public opinion as an important factor in their decisions. Even with filtering and role fidelity, judges elected to short terms would still face the reality of “fear and favor,” due to special interests and partisan renomination politics. Elected judges with more job security could be more faithful to their role (hence, “role fidelity”) and could follow their own perception of public interest or public opinion, rather than industrial interests. The Article concludes with some priorities for judicial reform based upon this historical episode.”
2008-01 Grisham noted that there was a lot of truth in The Appeal. “As long as private money is allowed in judicial elections we will see competing interests fight for seats on the bench.” The Appeal was published in the midst of the presidential primaries making it all the more compelling (Memmott 2008).
2008 “In John Grisham’s new novel, Mississippi judges are bought, marketed and sold. In a crowded courtroom, a jury delivers a multi-million-dollar verdict against a chemical company accused of tainting a town’s water supply with waste. The chemical company retaliates with an appeal, but in order to win, it rig the state Supreme Court. As judicial elections loom, the company hand picks an unsuspecting judge and manipulates him for the job. In The Appeal, Grisham provides a cautionary tale about judicial elections and political campaigns in general. Like the so-called “swift-boating” of political candidates in the last presidential election, Grisham’s characters resort to harsh smear tactics to defeat their opponents. Jacki Lyden spoke with Grisham about his novel, judicial politics and his personal political engagement. In a crowded courtroom in Mississippi, a jury returns a shocking verdict against a chemical company accused of dumping toxic waste into a small town’s water supply, causing the worst “cancer cluster” in history. The company appeals to the Mississippi Supreme Court, whose nine justices will one day either approve the verdict or reverse it ( All Things Considered).”
2008-03-18 Citizen Action of Wisconsin, a progressive citizen advocacy group dedicated to bringing transparency to the electoral system, filed a compliant against Michael Gableman with the Wisconsin Judicial Commission claiming the little-known county judge from Burnett County in northwestern Wisconsin used attack ads that were “highly offensive and deliberately misleading” against Incumbent Justice Louis Butler claiming he found a “loophole” to free a convicted sex offender.” The ad placed a picture of a convicted rapist and Supreme Court Justice Louis Butler on the screen at the same time. Both are black. Butler handled the man’s appeal of his rape conviction when he worked as a public defender.
2008-04 “Challenger Michael Gableman defeated incumbent Justice Louis Butler to win a seat on the Wisconsin Supreme Court in Tuesday’s election. The results mean that a sitting Supreme Court justice won’t return to the bench for the first time in 40 years. The interest in the race by special interests is troubling to some, including the unseated justice, WISC-TV reported. Third-party TV ads were a centerpiece of one of the most negative Supreme Court races in state history (Channel 3000).”
2008-10 “The Wisconsin Judicial Commission alleges Supreme Court Justice Michael Gableman violated the code of judicial conduct, which prevents judicial candidates from knowingly misrepresenting facts about their opponent. Gableman’s campaign ran an ad in the Milwaukee area before the April election against Incumbent Justice Louis Butler claiming he found a “loophole” to free a convicted sex offender.” Gableman defeated incumbent Justice Louis Butler in the April election. At the time, Gableman was a little-known county judge from northwestern Wisconsin. Citizen Action of Wisconsin, a progressive citizen advocacy group dedicated to bringing transparency to the electoral system, filed the compliant with the Wisconsin Judicial Commission on March 18. One local government watchdog group said fallout from recent Supreme Court campaigns is cause for concern.Channel3000
2008 Soros’ Open Society Institute made donations to dozens of groups seeking to sway the judicial selection process in states from Illinois to North Carolina, as well as funding national groups like Justice at Stake. According to Levy of the right-wing Wall Street Journal Soros and Grisham prefer “merit selection” where in order to keep politics out of judicial appointments, an appellate judicial commission selects a slate of judges from which the governor must choose. Right-wing critics argue that judicial commissions can also become agents of politicization leaning towards to left. Levy cited a 2007 “Harvard study” supporting his own views on an elected judiciary. The 2007 Harvard study mentioned by Levy was actually a paper presented at a Junior Faculty Forum based entirely on a historical analysis of how judges in the 19th century responded to Rylands (1865-). Given the complexity of the 21st century surely there are better sources for evaluating the strengths and weaknesses of merit selection versus elected judiciary. Grisham is merely drawing attention to potential areas of corruption and the lack of information available to civil society by using popular culture.
2008-12-08 US Federal authorities in New York arrested Marc S. Dreier in a $100 million fraud scheme, portraying his recent undertakings as a massive hedge fund fraud. The Yale graduate who 1996 founded the Dreier L.L.P. 250-lawyer firm in 2006 allegedly took advantage of the current financial crisis by selling phony debt to hungry hedge funds looking for deals. (Rashbaum and Kowan 2008-12-08).
2009-01 In a 2008 statewide survey entitled “Public Attitudes Regarding the Selection of Judges in the State of Washington” funded in part by Open Society Institute Professors Brody and Lovrich reported that,
“A little over 26% of respondents rated Washington’s current, non-partisan election method of judicial selection as good or very good, while 35% rated it bad or very bad; The largest areas of concern about the current method of selecting judges involved the lack of contested elections, the prominence of judges being appointed to the bench, and the lack of information available to voters to use in judicial elections; A little over 60% of respondents rated a commission system (merit system) of judicial selection to be good or very good, while roughly 16% rated such a selection system as bad or very bad; The aspects of the commission system viewed most positively were: (1) the use of a nominating commission as part of the appointment process; (2) the fact that retention elections provide voters with the opportunity to vote for or against all judges at regular intervals; (3) the fact that all judges may be held accountable by voters without the need for a person to run against a judge in a contested election; and (4) that judges always appear on election ballots at regular intervals; When asked to choose between the current system or a commission system of judicial selection, over 60% indicated a preference for adopting a commission system while about 23% preferred staying with the current system; Over 90% of respondents would support the development of a judicial performance evaluation program in Washington to provide information to voters about candidates in local and statewide judicial elections.”
2009-01-27 Wall Street Journal’s Dan Slater interviewed John Grisham to talk about his 22nd book. Grisham revealed that his favorite story was that of Marc Dreier. “[I]t’s incredible. Pretending to be someone else? Taking over a conference room? I knew something was wrong when I read about his 120-foot yacht. When you’ve got a yacht that big you’re living like a billionaire. And you can’t do that as a New York lawyer. I don’t care how big your firm is.” Grisham explained that even as a writer of fiction that he could not improve on the real life stories of Dreier and Madoff. They have already been covered too much by the media. “The sushi restaurant (Dreier) owned? All the cars? The secretaries making $200,000 a year? It’s too much. When I see stuff like that my imagination just goes into overdrive (Grisham interviewed by Slater 2009-01-27).”
1. Randy Gordon’s PhD dissertation (2008) examined the impact of literary works on rehumanizing law and democracy. Gordon reiterated the argument that there “is a direct and demonstrable connection between publication of The Jungle and adoption” of the 1906 Meat Inspection Act and the Pure Food and Drugs Act (Gordon 2008:41). Historian James Harvey Young (1981) observed that two key political figures, James R. Garfield and Senator Alfred J. Beveridge presented President Theodore Roosevelt with Sinclair’s novel. Gordon also added that other landmark legislation in the meat packing industry book decades to be adopted. President, John F. Kennedy asked his Scientific Advisory Committee to investigate Carson’s claims and they largely vindicated Carson’s work (1963-05) particularly in the report’s condemnation of indiscriminate pesticide use and call for additional research into potential health (Gordon 2008:52).
2. Author and journalist Upton Sinclair’s influential novel entitled The Jungle (1906) about the corruption of the American meatpacking industry is an example of how fiction portrayed social reality and is an early example of is one of the finest examples of the “muckraking” tradition begun by journalists. In this novel Sinclair contrasted the lives of the “have-nots” and “haves” and deplored American “wage slavery”. Sinclair’s novel was first published in the left-wing newspaper The Appeal to Reason.
3. “Law is institutional normative order (MacCormick 2007).”
4. “The rhetoric of scientific objectivity, pressed too hard and taken too seriously, has led us to people like B.F. Skinner on the one hand and like Althusser on the other—two equally pointless fantasies, both produced by the attempt to be ‘scientific’ about our moral and political lives (Rorty 1996:573, 585).”
5. In his influential article on law’s autonomy by Judge Posner (1987) argued that law had been treated historically in practice and as a matter of training as if it were an autonomous discipline (Posner 1987:761 in Gordon 2008:17).
6. The concept of “Narrative” as developed by Gordon’s in his literature review has a common thread of a “story,” a relational and temporal ordering of human events that culminates in “closure.” His sources include definitions of narrative as: “a story of events arranged in time sequence and offering some sort of meaning (Papke and McManus 1999:449)”; “the organization of material in a chronologically sequential order and the focusing of the content into a single coherent story . . . its arrangement is descriptive rather than analytical and . . . its central focus is on man not circumstances (Stone 1979:3)”; “first a ‘selective appropriation of past events and characters;’ second, a temporal ordering that presents these events with a beginning, a middle and an end; and third, an overarching structure that contextualizes these events as part of an opposition or struggle (97)”; “a recognizable discourse or operation . . . that . . . can be abstracted from [its] medium [of expression] . . . as in the plot summary (Clawson 1998)”; a story (99); “a metacode, a human universal on the basis of which transcultural messages about the nature of a shared reality can be transmitted (100).”
Webliography and Bibliography
2008-01-27. “Grisham’s ‘Appeal’ Tackles Down-and-Dirty Politics. ” All Things Considered.
Agence France-Presse. 2008-01-09 “Author John Grisham has no shortage of book ideas.” Madrid.
Asimow, Michael. “Analyse This! John Grisham’s Lawyers from a Megafirm.” Picturing Justice. University of San Francisco.
Brody, David; Lovrich, Nicholas. 2009-01. “Public Attitudes Regarding the Selection of Judges in the State of Washington: Results of a Statewide Survey 2008.” American Judicatur Society and Washington State Judicial Selection Coalition.
98 Brooks, supra note 91, at 1.
Clawson, Mark A. 1998. “Telling Stories: Romance and Dissonance in Progressive Legal Narratives.” 22 Legal Studies F. 353, 364 (citing and partially quoting Ewick, Patricia; Silbey, Susan S. 1995. “Subversive Stories and Hegemonic Tales: Towards a Sociology of Narrative.” 29 Literature and Sociology Review. 197, 200.
Gordon, Randy. 2008. “Rehumanizing Law: a Narrative Theory of Law and Democracy.” Ph.D., Law. The University of Edinburgh. 2008.
Grossman, Lev. 2006-10-09. “Grisham’s New Pitch.” Time.
Levy, Collin. 2008-03-20. “Grisham’s Judicial Appeal.” Wall Street Journal.
Hamilton, Kevin J. 2008-01-29. “New side to John Grisham: storytelling of substance.” The Seattle Times. (Hamilton 2008)
MacCormick, Neil. 2007. Institutions of Law: an Essay in Legal Theory.
Memmott, Carl. 2008-01-28. “Grisham’s ‘Appeal’ rules harshly on bought election.” USA Today.
O’Brien, Tim. 2005-03-21. “New Jersey No ‘Judicial Hell Hole’: State judiciary’s restraints may spare it full impact of Class Action Fairness Act.” New Jersey Law Journal. CLXXIX:12.
Papke, David Ray; McManus, Kathleen H. 1999. “Narrative and the Appellate Opinion.” 23 Legal Studies. F. 449, 449.
Patrick, Bethanne. 2008-01. “Justice Denied.” Washington Post.
Posner, Richard A. 1987. “The Decline of Law and an Autonomous Discipline: 1962-1987.” 100 Harvard Law Review. 761.
Pozen, David. 2008. “The Irony of Judicial Elections.” 108 Columbia Law Review.
Rorty, Richard. 1996. “Solidarity or Objectivity.” in Cahoone, Lawrence. Ed. 1996. From Modernism to Postmodernism. 573, 585.
Slater, Dan. 2009-01-27 A Law Blog Q&A With John Grisham. Wall Street Journal.
Stone, Lawrence. 1979. “The Revival of Narrative: Reflections on a New Old History.” 85 Past and Present. 3, 3.
Shugerman, Jed H. 2008. “The Twist of Long Terms: Disasters, Elected Judges, and American Tort Law.” Harvard Law School.
99 Van Dunne, supra note 92, at 463.
100 White, supra note 90, at 6.
Young, James Harvey. 1981-06.“The Long Struggle for the 1906 Law.” FDA Consumer.
Filed in Art, fiction, moral mathematics, Political Philosophy, Risk Management, Risk Society, Social Justice, UHNW
Tags: Amicus-Curia, big-money politics, cancer cluster, consumer-friendly, corporate litigation, dedicated interest groups, Faulty Ivory Towers, Fletcher v. Rylands, John Grisham, Johnstown Flood, judicial elections, judicial hell holes, law and literature movement, legal drama, legislative flash points, Marc Dreier, Measuring Money, Michael Gableman, modern legal machination, moral hazard, narrative, Plaintiff' Paradise, policy research, popular culture, pulpit for reform, reflexivity, Risk Management, Rylands rule, swift-boating, The Appeal, The Jungle, US corporate malfeasance