View to More General Losses and the Attempts by the Subjects and the Poet to Navigate Those Events

UNIVERSITY OF CINCINNATI

DATE: May 12, 2003

I, Cynthia Nitz Ris , hereby submit this as part of the requirements for the degree of: Doctor of Philosophy (Ph.D.) in: English It is entitled: Imagined Lives

Approved by: Don Bogen, Ph.D. John Drury Jim Cummins

IMAGINED LIVES

A dissertation submitted to the

Division of Research and Advanced Studies of the University of Cincinnati

in partial fulfillment of the requirements of the degree of

DOCTORATE OF PHILOSOPHY (Ph.D.)

in the Department of English Composition and Comparative Literature of the College of Arts and Sciences

2003

Cynthia Nitz Ris

B.A., Texas A&M University, 1978 J.D., University of Michigan, 1982 M.A., University of Cincinnati, 1998

Committee Chair: Don Bogen, Ph.D.

ABSTRACT

This dissertation consists of a collection of original poetry by Cynthia Nitz Ris and a critical essay regarding William Gaddis’s novel A Frolic of His Own. Both sections are united by reflecting the difficulties of utilizing past experiences to produce a fixed understanding of lives or provide predictability for the future; all lives and events are in flux and in need of continual reimagining or recharting to provide meaning.

The poetry includes a variety of forms, including free verse, sonnets, blank verse, sapphics, rhymed couplets, stanzaic forms including mad-song stanzas and rhymed tercets, variations on regular forms, and nonce forms. Poems are predominantly lyrical expressions, though many employ narrative strategies to a greater or lesser degree. The first of four units begins with a long-poem sequence which serves as prologue by examining general issues of loss through a Freudian lens. The second section looks more specifically at a localized event—the breakup of a marriage—and ends with another long poem that seeks to recast the events through the use of navigational themes. The third section expands that view to more general losses and the attempts by the subjects and the poet to navigate those events. The final section, including three dramatic monologues, uses four personae to revisit some of the issues raised in the collection through more specific acts of remembering prior events.

The critical essay looks closely at William Gaddis’s use of varieties of spheres— including the institutional and private—and the use of various forms of exposition, to argue that society’s attempts to order life are ultimately futile. The acceptance of that futility and the willingness to embrace the unpredictability of life are suggested as the only possible sources of hope for a satisfying existence.

ACKNOWLEDGEMENTS

I am grateful for the guidance of a number of teachers and colleagues for

thoughtful suggestions regarding the poems and critical paper that comprise this

manuscript, including Don Bogen, Stan Corkin, Jim Cummins, John Drury, Jane

Hirshfield, Tom LeClair, Henry Taylor, Reetika Vazirani, Alli Hammond, Gary Leising,

C. Lynn Shaffer, Dirk Stratton, Juliana Vice, and Ruth Tucker. I am thankful for the friendship of many of these individuals, as well as for the other fine writers who cast a critical eye on my poetry and shared their poems with me in workshops at University of

Cincinnati. Individuals whose support and friendship also influenced this work, and my state of mind while completing it, and to whom I owe much gratitude, include Cathy Piha

Huffman, Michele Griegel-McCord, Maggy Lindgren, Hope Pierson, and Robbin Titone.

I would like to extend my appreciation to Nancy Baumann for her friendship and her crucial knowledge of the intricacies of bureaucracies. Finally, I would like to thank my sons to whom this work is dedicated and for whom I am grateful beyond words. To

Andrew, Greg, and Geoff, with love always.

CONTENTS

ONE

Libido 5

Misreading 5

Censor 7

Free Association 8

Repression 10

Cathexis 11

Libido 12

Antithesis 13

TWO

Mercury 15

Post Card Home 17

Why the Psychic Never Wins the Lottery 18

The Contemplative Marriage 20

Breaking the Rules 22

Gone 24

Fate 25

Another Way Toward Grace 27

Navigation 29

THREE

Dissolution 36

By Faith Alone 38

Fourteen 43

Night Vision 44

Widow 48

Crane 51

Lot’s Wife 53

Giotto’s Resurrection 56

Vacation Home 57

FOUR

The Source of Light 62

Left Behind 69

Uncharted Waters 75

Repressed Memories 81

The Unswerving and Unpredicatable Influence of Memory

in William Gaddis’s A Frolic of His Own 83

“Memories, many of them not my own, are passing shyly and vividly through my chamber.”

Ranier Maria Rilke

“It’s a poor sort of memory that only works backward.”

Lewis Carroll

ONE

Libido

Why it is that [the] detachment of libido from its objects should

be such a painful process is a mystery to us.

—Sigmund Freud, "On Transience"

Misreading

A promise as something offered without reserve. "I do" for "I will." The words love, commitment, trust, as what I took them to mean. Manet's La Regalade:

"to pour a liquid down one's throat from a jar without touching one's lips." The man in the painting holds his flask overhead, the liquid ready to surprise his throat

with its fierce line. Why not the support of lips, the slow flooding of mouth and throat? How many must drink open-mouthed, the source at arm's length

before someone fabricates a word for it? "Dissolution" as salt in water, a cleansing solution to rid sores of pain when the wound is touched, the lips kissed.

A second love as better than the first. Longing, sorrow, regret—words forged from experience: his, mine.

The fierce line never the same. Mouths wide in expectation.

Censor

When I first heard the creaking, aching groan,

I imagined a human origin—a crowbar, splintered wood, imminent bludgeoning. But ice against the shore

intended no harm, its mournful cry an embrace, as I lay outside his play of dreams where the day's repast turned upside down, found someone who looked like him

in chase after one who looked like me who wanted desperately for the fox to be the hound and so, he said, next morning, I must have been him who wanted to be me

who wanted to be loved. Do you? he asked. Beyond,

I saw where ice had churned against the shore, the water now calm. I tried to, but couldn't, describe the sound.

Free Association

Love: tight spaces, darkness, trials, Nuremberg.

The movie with Spencer Tracy, who wishes

Marlene Dietrich were not German, not a woman

with mixed loyalties. My father is German.

His father banished the violin, saying it caused

"too much sensitivity in the boy." One lover

accused me of being too sensitive, another, not sensitive enough. The plant that folds its leaves when touched. My skin feels his touch, still.

A cry, a seagull, an ocean, brine. The skin, raw and blistered. A wound to prod at. Your questions, your concerned stare. Your own heart, its walls,

distances that keep us on each side. The gate you ask me to open, the slow surrender, open arms, the flaming arrows that breach the unspoken truce.

Repression

Each erupted from the grass, then returned en masse to peck at what emerged to feed them.

The unmown lawn hid the grackles as they dipped,

gleaming heads and tail tips surfacing, foraging across the expanse, away, then toward the house.

Arising, they broke apart, then returned

as smaller formations that bobbed in the grass, bodies half-seen, but not the gleam of their yellow eyes or their beaks that punctured the soft earth.

Cathexis

I held the flesh but not the man. He'd fled again to the core he'd found so early on, he'd gone beyond all deaths—his father's, his own.

When called by something resembling love he would unfurl his legs and follow a ghost of warmth along a shadowed path,

the promise of green fields, warm embraces, until his father’s charms would lure him, turn him from the sun, the open unknown sky.

Libido

Unleashed, it roams like a great, grieving dog, yellowed with age. It clatters down, eyes others who approach, warns them away. I know when it’s had its fill of grief

and murmur that I am its owner again. It trots, slow beside me, backward glances. Nudges my hand.

Decides at last to run, charges a squirrel up a tree.

I can chain it so it will strain, whimpering at night for my bed, or let it roam, be torn to shreds, set free to sing the sweetest songs.

Antithesis

To love: to hate. The smooth stroke knows the rough; the loosening ties, the bind. To cleave: to bring together and cut apart. To open the mind

includes its narrowing gaze. Twenty years knows two: the sound a lie makes when it grates against blades sharpened by the heart. To satisfy: to want.

To lose oneself: to find. The moment rain reveals restless urgings of green, we turn from muddied boots, aching backs, and celebrate the weeds. To hate: to love.

To turn away: embrace. The one who leaves, arrives.

The sinner knows the truth; the lying heart, the jewel.

To bury life in death: to know the love of life.

TWO

Mercury

I feared it as a child, as I feared desire.

It survived by the edict divide and conquer; the smooth silver globule would split

into miniatures of itself until some were lost in the shadow outside the lamp,

or attached to me: the curve behind my knee or the hollow just above my elbow.

If found, each would disperse at my eager probings into spanglets

no larger than a sneeze, absorbed through my pores, or inhaled into

the very linings of my lungs which, at nine, old enough to dream of a romantic death—

O! handsome doctor, kiss me once before the end—I thought

a likely breeding place for mercury poisoning to be. The first thermometer

broken under a careless step, when

[no stanza break]

did accident become intent, the thin line crushed

to court disaster?

Post Card Home

Cypresses, gray with salt, hunched like old men, flank the boardwalk that curls around the dunes.

Huckleberry within reach, we snatched some, though the ranger warned us away. Heading back,

I gripped Andrew's hand—he pulled near the edge where reeds grow tall enough to hide crocodiles he hoped to find. I helped him write a card to you; his scrawlings say: "Love. We are here."

Last night we watched the sky turn green behind ragged waves. The storm bent sea grass that signs tell us not to touch, and lightning strikes melted pockets of sand: fulgurites, today's new word— sand-cast vases shimmering in the sun.

Try to hold them, and they shatter in your hand.

Why the Psychic Never Wins the Lottery

It’s not because I haven’t tried—close my eyes, wait for numbers to appear. Spent hundreds one year thinking that what I’d conjured up came to me

as visions do.

We need so little to transport us. A shade of purple along a petal’s edge turned to the sun becomes a point of blankness beyond the trail head—

someone lost, now a body found.

Those visions come to me. So I shut down my mind’s release, work instead for control.

Force everything to mean, everyone I know

to fit like puzzle pieces

in a larger scene. What I want is forest greens that are only forest greens. Or, if I could choose, love wrapped around me, but even then I get it wrong.

In the middle

of a moist embrace, one I’d told myself was right, the vision comes too late—not this one, some other, far too vague. It’s always this way: truth grown dark

until some veil lifts.

Need buried until one day, no control, it appears.

What was there all along, like charm or grace, shows itself without force. I don’t try anymore

to conjure love;

instead, I catch glimpses in a woolen sky, the sheen on bruised pansies frozen overnight.

I don’t need to practice diligence,

just the letting go.

The Contemplative Marriage

Prickly spikes erupt

Pinched between finger and thumb stems snap tap roots whole

______

Pulling the ivy the sheet of paint tears bruised-red foundation exposed

______

Tugged at by brisk winds still-green leaves tear from the elm languor underfoot

______

Three times the tree’s width the roots’ lengths struggle away

Oh to be apart

Breaking the Rules

What if we fell by rising

as fish do when they die

or rewound mistakes

or better yet, erased

all wrongs done in a day.

What if I told you how

I really feel and what

it takes for me

to ask one tiny

thing of you: Open my heart.

A lock would open wide,

allow the ship to pass

unchecked, on faith—

an open gate.

The journey’s end a guess.

Then we could simply lie

within each other’s arms

seal our lips

with faultless kisses

hatch love from silent warmth.

If in the end we still

would part, we would fly high,

a weightless leaving,

watch oceans waving

mackerels through the seas.

Gone

After the tracks were torn down, neighbors would wake and call

police, claiming to have been disturbed by noises of a train.

The train line gone, the noise no longer held their minds in check, turned expectations on their heads. Where sound had once meant silence, tunes could now be heard for what they were. And told by those they called that silence did mean quiet, they'd finally stop to listen to their breaths, the steady insistence of their lives. Death almost seemed preferable. Silence complete.

And when you leave, your touch is what I share with mine; your voice, what whispers at my word.

What I can hear in bed at night is tone that knows no origin, considers fear.

It's more a feeling than a sound that's heard by the flesh. Zero at the bone. Alone.

Fate

Mid-winter snow curls up my spine.

February’s attitude thickens each vertebra with ice.

Blood pools in the veins from neglect or in the vacuum where fires once burned.

We know of Pompeii—

the tidal rush of death,

those caught like Lot’s wife:

alive one moment, then as stone.

Before the onslaught,

even before the first trembling,

there’d been the sun,

a bleating of lambs.

Hope spills like wine from a lover’s glass pooling on marble.

Wiped in haste, it lingers— a dusky hue we leave to fade, we can no longer scour.

Another Way toward Grace

For me, prayer is a surge of the heart . . . a cry of recognition

and of love, embracing both trial and joy.

—St. Therese of Lisieux (1873-1897)

The cry that spills from my lips in love must be a prayer. How else to prove our unity, the understanding from above.

I need to keep on learning which means to keep leaning on you, opening to you, to the yearning.

A means of confession of sins, of weakness, of the expression of need, white light, close inspection.

Nothing withheld: ready for blood and body, skin to skin, food for each other, and in the breach, the wound.

And in the healing, the trace lingering of war—the bright scars we caress, the source of grace.

Navigation

What’s Held

At first, only dead reckoning—time and place relative, obscured.

Then, knowledge held in a sailor’s hands: quadrant, astrolabe, cross staff. Brass and wood lined up with the past. By day, the sun above the horizon, by night Pleiades, the North Star, Cassiopeia.

A skiff traversed 800 miles of rough seas, shipmates clutching their navigator steady against the helm as he read and read again their way through broken clouds.

Day after night after day after season.

The position, the height, the glimmer of light, terra firma, arms stroking a beloved.

Out of habit, I expected not to be alone.

Casting

I’d cast out, time after time, the line that in his hands snaked gracefully back, then, after a pause, pulled overhead and reached

toward the silver target set on the hill.

Don’t flog a fish, he'd call, or Like that,

which I couldn’t duplicate, unsure

of how my shoulder, my forearm, my wrist had behaved, the turn of my body,

my mind’s set. Let the rod pull the line.

I wanted to live beyond the effort,

as if I’d known all along what I should do:

precise movement of arm, snap of wrist, synchrony with the rhythm

of water or love. Late into the night,

I flung line after collapsing line.

Ice

In frigid waters, the lookout scans the clouds.

A white glare for miles ahead: ice floes packed in tight formation. Threads of black reveal hope, floes unhinged, a chance for navigable lanes.

Inky reflections mean water skies: open passage ahead.

Fog tells nothing.

Clear skies tell nothing.

In a picture I lost, my father stands

in sailor's white against a faded sky, his feet uneasy on land. Cook on an ice cutter,

he'd steady sheets of pies while heave and weight of prow against the floes

would crack a line that stretched toward open seas. Never sick from the thrust

and plummet, he'd rather hear the deafening crash of breaking free than quiet

[no stanza break]

which could mean open waters or the pause before ice moved in against the ship,

holding fast what it wanted to keep.

Ballast

The world bucks, horizons glimpsed, then flooded. What clings is what’s already been lost: the common journey, treasures heaved in hopes of making land.

Early sailors wouldn’t learn to swim, afraid of what rode beneath them, afraid of tempting fate. They knew too well how nothing was exempt from being cast away.

Lost at Sea

Whitefish Bay, the sailors’ museum—

we rounded displays of bells and figureheads from ships that broke apart

[no stanza break]

on days to which

sailors rose as they had each day before.

We peered at paintings, one for each

imagined scene—crested foam,

broken masts, knowledge bright

on each man’s face of horrors

he would meet, no sign of shore.

The only light in that room—a lighthouse lamp

that had shone twenty miles to sea—fractured through its prismed lens,

cast jeweled shards on us and scant remains, and pulled away.

Skies

Always, the return passage. Lake Superior.

A pier and a melting sky.

Dim figures of lovers waiting for this, too,

[no stanza break]

to die back to darkness.

No horizon, only a luminescent fire-green.

Backward current, the release ahead:

scrambling along rocks, our separateness already a fact.

It was a summer night. Our silence bright as our past. We lingered until

the color drained away, though I had thought the sky might

sustain itself, remain unchanged.

THREE

Dissolution

Erupting along branches of dogwood, hundreds of Christs on crosses. Or, I could at least imagine each cluster of four white bracts, pretending to be petals, more human than choked with chlorophyll: the head, the legs together, arms extended. Red streaks staining each edge, blood on the feet where nails had split apart the bones. Complete surrender to pain. Hands impaled, imbedded thorns punctuated flesh.

Take eat, he said.

This is my body I've offered for you— each wafer a blossom, dissolved, and through the sacrament, his body into mine.

It's not the sacrifice I held divine, the taste of selflessness. Instead—the sun

[no stanza break]

blazing as I tear petals from first one then countless branches—that futility of argument, those bootless cries, the plea unheard. The sun that shone and shone. Its heat.

Its burn. The broken body that believed.

By Faith Alone

Wholly theirs

What is there but this ache for gratitude?

This wish for what connects?

In her corner chair, Grandmother

A rosary slipping through fingers

Pale skin like crumpled tissue paper

Hail Mary’s in Polish

The church early Saturday morning

[no stanza break]

The whir of my mother’s vacuum cleaner

My father laying out the candles, the host

Overheard conversations

My mother with my aunt: the state of the marriage— what happened in the beginning and, again, in the beginning

My mother’s withholding The body turning away

Mint in grandmother’s garden she’d let me taste

[no stanza break]

The canary she’d cluck at

My grandmother and mother speaking Polish while I

sat in the cool dark

Once, I swallowed smooth black stones—obsidian

Their hands pounding

The idea that two people can understand

the same word in the same way

The idea of explaining that understanding to each other

with words that each understands in the same way

The first memory of my father: home from the hospital

[no stanza break]

a smooth stump where his foot had been

His muscles could still wiggle it like a foot

Magic marker eyes and mouth—now, a face

There are at least two versions of creation

They cannot be reconciled

Red velvet on the pulpit’s floor

High filigreed sides

Thin wafers that dissolved into a film

on the roof of my mouth

No first connection with my mother

An infinite beginning, or none

Which was the greater light?

Bones of their bones, flesh of their flesh

Fourteen

My son sits heavy limbed at home, long legs bent upward, shoes so large he’ll have to rise up taller than he already towers to match them.

He yearns from a great distance.

His world swirls within him, surges with emotions he can’t name or hold.

He grasps anarchy, lost faith, threads their symbols into badges he wields.

Not enough, he cuts life into his flesh, owning what he shapes. At least this much is his, and what he feels can save him.

Night Vision

It rises up ahead—one more obstacle on this long trip home. A bridge crests a hill just beyond

a small town along a route I picked in haste.

Night dims the glitter of the town and darkens

the road. A hundred meters from the bridge,

I spot the door, guillotine style, that promises

to close on passing cars while locals play obscene tricks on motorists. They lurk

behind shades, casting bets on which hapless fool will be caught or crushed

depending on their mood for cat and mouse or blood. Each resident takes turns

to pull the lever in this grown-up London Bridge.

Those casting lots will try to guess

the likely target. The town’s old man would hate those souped-up cars teens throttle by his house,

so odds are good the first Flame Red Camaro will be his. Or the spinster—she’ll choose

the Porshe or Ferrari that costs more than all her possessions combined, since her beau,

it’s suspected, has gone for good, along with her trusting heart and bearer bonds.

The young would get their chance. Their goal will be some old coot’s fin-tailed Chrysler

or those trailer trucks whose flatbeds carry cogs of giant proportion they’d want to see close up.

Or perhaps a timer’s set to clasp a victim randomly in the bridge’s steel grasp. More lottery than logic,

anyone could win. Phone in a lucky guess— the license plate number pressed

on the touch tone pad. Those with re-dial would do best. As I wonder whether

I should cast my fate into others’ hands, or hope some scandal—phone chad fraud

or state investigation—has wrecked this late-night game, I discover, as when

a porcupine in my path turns out to be a bag, or an old lady waving for help becomes

a used car dealer’s flag casting its shadow, that as I drive across this looming trap

what I thought were bridge supports are cross hatches on an unused lane

and the arches, criss-crossed wires carrying electricity to the town.

The guillotine disappears—perhaps a brief crossing of an oak branch

across the sky. The hill behind me, I’m left unscathed, my heart calming, still unchosen.

Widow

She leans into the wheel as closely as her safety belt allows. The rosary sways from the rearview mirror—blue and gold,

Notre Dame colors, catching the winter sun angling between the clouds. Her daughter, skates in hand, slides forward on the car’s back seat, cocks her head like a bird at the sound of her mother’s voice. It’s not, she says, a word

I’m used to. To her it means children grown, a woman wearing black. Someone much older.

We watch as her daughter pulls leggings over tights, laces metal brackets, then glides away, finding the other girls already circled.

Suburban parents fill the wooden rows, hot chocolate in hand, each following their daughter’s graceful jump or wobbling spin.

[stanza break]

She jokes about her husband’s football friend who wrote: So sorry for your loss of Dave, as if she’d just misplaced him. Three months later, she sometimes feels that’s true. As if one day she’ll wake and find him there. Her memory never was that good. Family trips, what each child did and when, was something Dave remembered. He’d be able to invent her life when, old and reminiscing, they’d look back. Now who will say remember when to Jack and Jessie who build their lives from stories that they hear.

That night, she spreads cloth samples across backs of chairs, asks which match or clash. We pop popcorn, watch a movie about a man who’s died and gone to heaven. She laughs, doesn’t seem to mind that he finds love among the angels.

She’d almost forgotten how hard it was sometimes. When they had moved down south, how she

[no stanza break]

had threatened to move back alone. How he had followed. The years since had been so good.

Jack’s said that if they’d stayed, his Dad would not have driven to South Bend that day, not been on the road that night.

She cries when we hug goodbye. In the drive, I see where my tires compressed the snow. She stands between the treads, touches her hat, the house looming behind her.

Crane

I am the crane that stands with

such certainty on the turtle’s back.

I am his long proud neck that

curves back then forward graceful and sinuous, full of throat

that would sing if it could of wings that pinion backward

and down in a frock coat that wards off water, cold, the dust

that would come of staying too long in any one place. I am the legs

rising up and up beneath the feathered trim, legs that bend

one at a time to showcase poise, balance, and a certain equanimity

that comes from watching for the moment before the fish

glints beneath the surface

[no stanza break]

to dive at what is instead of what was

or will be and mouth sweet flesh, head back, pulling the flapping mass

into that long throat. I am the feet that stretch across the upward

glancing turtle who can’t believe his passenger so nonchalantly rides

and rides on what would be a slowly moving tide, the gentle rhythm,

from grassy nest to shadow to creek bed. The world under my feet,

the sky at my head, my wings ready by my side, almost alive.

Lot’s Wife

But his wife looked back from behind him, and she became

a pillar of salt.

--Genesis 19:26

She’s pursued by something she doesn’t know.

Told to gather her belongings before the firestorm sweeps through, her only hope

to flee and not look back.

Her shawl spread flat, she places in it the brush that smoothed her daughters’ hair, brass plates for their wedding days, and her own marriage cup,

blue of the Great Sea.

She ties it like a swaddling cloth, surprised at its lightness. Her husband calls from beyond the door, phantom men by his side

waving their arms, or wings.

Her daughters pull her on. Rain pelts the dusty ground. The towns wake to a distant roar, crowds streaming

like scorpions from their nests.

This nomadic life. Behind her husband, again. Her daughters soon to follow theirs.

Her sandals start to weigh her down,

her family fading ahead.

Along the path, balms’ blossoms turn to fruit she won’t have time to pick.

The henna flower soon to bloom,

its perfume locked in.

She thinks of more she hasn’t done. The hyssop left at home, still to grind. And on the wind, the scent of the acacia along the Zered

she wants time to rest beneath.

A wall of orange sweeps in—fire, or butterflies, she can’t say which. She feels her flesh tighten, drawn of blood. What’s ahead, like salt in wounds.

She turns for one last look.

Giotto’s Resurrection

She reaches out, a moon having fallen on her draped head, but he holds her at more than arm’s length:

noli me tangere. Perhaps he even carries the words on the flag he’s holding instead of her. He’s been through

so much—beatings, the taunts, nails that split bones. Now, he couldn’t bear even a touch. His disciples

know that. They swoon with the loss of him. Behind them, angels smile, accustomed to what it’s like

to live beyond touch. Still, she reaches toward him, wants to hold him, to give him what her pale hands

can help him remember. He steadies himself against the rock wall, gazes at her shining face, blue sky unfurling.

Vacation Home

The dark lake holds the boat, makes it bob, the mast nodding, slaps its sides with the wake of passing motor boats. In the morning, the man arrives, sits at the end of the dock, lowers his feet slowly into water that opens, allows his feet, ankles, calves to enter.

The surface of the lake glitters, but doesn't seem to move. The water still holds the boat, the neighbor's wooden boat, that the man wishes were his. In two months, he's sold his possessions one by one—the cracked barrels that held tomato plants, the croquet set still in its box, the outboard, even the extension of the dock. The sheen on the water obscures his lower legs; they could be gone too.

His boat was the last to be sold, the price

[no stanza break]

too high. Even so, the couple bought it, the husband laying bills in his hands like wet leaves.

They'd once had so little in their cabin, dark beams absorbing light from kerosene lamps.

Under the woolen blanket, he'd chart his young wife's flesh, every hollow, every expanse.

As they moved together, he’d feel her body ripple, like the dark center of the lake—that strip of deeper blue that seemed furtive, even on clear mornings.

There would be houses he'd never see again, those with drives marked Private along the road that circled the lake. He'd marked their progress by boat as they were built, like one he called

Ship House—its floor to ceiling windows angled out like the prow of a ship; its sailboat, canoe, and motor boat displayed like trophies

[no stanza break]

at each color-coordinated buoy. The ones he'd graciously point out to guests: his sons, their wives, his lover when she was already his ex-lover, his wife when she was still his wife.

He'd sat at the window, scanning the lake, while she taped notes to furniture; some she'd keep, others were for the boys, the rest sold at tag sales to locals, or tourists whose houses were everywhere. His credenza could be in Minnesota, the capiz shell lamp in Tennessee.

He lowers himself into the water, feels it close around him, frog kicks without a splash toward the boat. After he untethers it, it stays still for a moment, like a bird uncupped in a hand. Touching its burnished surface, he prompts it toward the open lake. The waves, unseen before,

[no stanza break]

rock it slightly toward shore, then a further distance away. Watching it, he thinks he could free each boat, imagines them, together, at the heart of the lake.

FOUR

The Source of Light

Broden, West Virginia--A police officer, 45, shot eight years ago,

died after spending most of those years in a coma-like state. Last

year, he emerged and talked with family members before slipping back

into silence.

For seven years I watched him blink, imagined each blink a sign: I’m coming. Seven years.

We picked days. Laurie on weekends. His ex-wife would leave their sons on Tuesdays after school.

The doctors said to talk to him, our voices could get through, help him out. From where? They’d shrug,

explain how brain waves work, or don’t. It seemed he’d watch. Half-closed eyelids, he’d gaze across

a distance only he could see. The ward always felt too big. I’d move in close, whisper

words, songs, stroke his arm, thin as the bed-rail,

like when he was a boy. I’d close my eyes

and picture him on pony rides, tan cowboy

hat, his plastic guns. See-sawing with Laurie.

His own boys still so young when he went down.

Brian and Matt would half run, skid a stop

at his bed, Hi Dad always what they said, a kiss on his forehead, a litany

of grades and baseball games they’d argue over as if forgetting he was there. Days play

like an endless loop, turning on themselves.

All the old stories. Nothing new: his brother

dead, step-father lost in his mind, ex-wife remarried. His smile what I missed most.

Shoulders pressed against each other smallest one always

in the middle shoved back and forth Daddy’s arm over the seat—not while I’m driving! Back and forth

Danny and Laurie pushing My arms crossed hard in front

Their arms, hands, in my face A hard poke

I try not to cry, then a sound like something from a cave

Cry baby

Push, I want to tell them Push again

Hunched on a boulder, hands around a mug Wisps of mist over the river

Green hills, Jeep, tarp Slow morning

Dew everywhere Inside the tent, the boys, their small breaths

They’re on either side of me, warm against my arms

Heads bobbing, slapping at each other My voice,

the sharp sound of it Cut it out!

They turn me Cold hands, warm Pushing Rolling

Rubbing me with water Tubes from my arm

[no stanza break]

Rocking under me, rolls, waves Pull the tube away

At sea Marcie The boat’s edge bucking under us

At your mark . . . one, two . . . . Back and over

Water closes over us Her hand still in mine

When we thought he’d die, I stayed every day.

Weeks later, when they pulled tubes, one by one,

he breathed, gazed right at us. Seemed lost in thought.

The days crossed off. The pages torn away.

Marcie nods—air’s alright We’re breathing like fish gold hair

dances around her face A clown fish darts through

My arms floating, my body hanging, swinging

[no stanza break]

like weights on mother’s cuckoo clock brass pine cones

she cradles and dusts She smiles at me

Head back Legs and arms itching on cool grass Clouds’ shapes

I yell out loud Deep blue sky, lighter toward the trees

The trees a rim The sky

a bowl Clouds crowded in the bowl, swirling

I point at one It changes shape I run to keep up

Out of breath mother wants me to breathe Rubs my arm

Breathe It’s okay Then she’s there

When he woke, he stared right through the calendar.

Pulled upright, grabbed my hand. One finger raised

as if to say just wait He kept his eyes

on mine. I rang the nurse and rang. Alive.

My husband never knew. Lost in his own world he never could remember who our son was.

I’d tell them both stories. The fishing trips.

First dates. One son in his dress blues. I almost

lost the other years, almost drifted away.

Remember, he said, the cuckoo clock, how

the boys were always surprised. Cotton candy he and Laurie ate and ate. How Marcie

looked so beautiful, always. How he’d ride his bike—no hands—through gullies in the woods.

I wanted him to hear me, how I’d missed his voice, the way his smile arched awry.

As if I were a ghost, he watched his life through me. When Laurie came, and his own sons,

he paused, smiled. Regaled them with scenes they’d never known. His memories washed and washed

over me. He swam away. What was left was neither him nor me. Like vapors rising

then blowing away, his life came alive then died again. As if our dreams paraded

a few brief days, then faded back. What line had he crossed? Or was it all the same to him?

As if words drained his strength, he pulled away, fainter, more sick, each day. I still forget,

sometimes, what his life really was and what was only what I said and still remember.

Left Behind

The U.S.S. Arizona remains an undersea memorial.

Sometimes, the roughest voice

has long thin fingers. Or gnarled hands,

knobbed and twisted—their voice

could be an angel’s.

I’d learn faces, too, glances up

from ladling gravy. But mostly voices,

You call that pie? C’mon, one more biscuit.

And their hands—gripping plates against the swells, pointing for more.

When I see faces, I see ash.

Hair singed and wiry.

Eyebrows gone. Still walking on the quarterdeck. The ones half-gone when Captain called Abandon Ship.

[no stanza break]

Other times, I see what I just heard.

Divers who sensed before they saw bloated bodies in the sunken hull, finger bones picked clean. I see those, too.

Ship’s steward fed the officers.

But once, with press on board, the Admiral walked the line.

The picture shows us both— my head down, the Admiral reaching out like all the rest, stripes at his wrist.

I heard that morning, the Admiral ran on deck, half-dressed, pushed aside the gunner, already dead. One minute he was firing at the rising suns, next, the deck had blown apart.

Most hands went with the Admiral then.

[no stanza break]

They tried that once to bring them out.

But when body parts came floating up,

and floating up, they bagged what they could

and left. The men would stay.

I signed the papers. My daughter says

it’s like I never left the ship. Says when I die,

I need to rest on land—a field where grandkids

can put flowers on my grave—instead of ashes

in a blasted hull. They’ll play taps.

A flag gets raised above the ship.

A diver takes me out, the sealed urn drops,

and then I’m with them.

I take a slide show into schools. Show them

the famous shot—the Arizona billowing smoke.

The one that woke the sleeping giant.

[no stanza break]

I bring medals, a map that shows the bomber’s route, winning campaigns.

Boys ask about the guns. No one asks about the sailors left behind.

After breakfast, I went back to sleep, let galley slaves cover last call.

But General Quarters sounded— battle stations. Men already filled the magazines. They yelled to close the hatch, man the broadside guns. The ladder up was slick with oil and blood. My hands, ahead of me, like someone else’s, slipping and grabbing again. On deck, a gunner’s mate hung from a pole.

Another, still alive, flesh shredded on his arms. I walked him to sick bay.

[no stanza break]

The yeoman lay in blood, both legs gone.

I’d made it to the mainmast

when the last shell broke her back.

The blast that killed the Admiral.

After the blast, they crossed the decks in lines.

Eyes fixed ahead. Flesh gone or black or ashen.

I watched the plank from ship to quay

snap and fall. Heard Abandon Ship.

Ended in the drink, thick with oil.

I didn’t know I’d been hit until they pulled me out. All I felt were hands.

After fifty years, they asked us back.

A few dozen hands left, all we could say—

how proud we were of those we left behind.

We waved. Ate aboard a navy ship,

[no stanza break]

walked that line too. I watched sailors dish it out, their hands so sure. They saluted each of us.

When I dogged the hatch I may have saved some lives—flames stayed contained.

Gunner’s mate might have made it up.

I’d fed them, seen them again in line.

It’s only in my dreams I see them burned and dying. When I match finger bones to those voices— More please. More.

Uncharted Waters

Josie Bassett Morris, Butch Cassidy’s girlfriend, lived alone for forty

years in a cabin she built near Green River in Northern Colorado.

Rain swells the river: another chance for parched fields; filled reservoirs for months when only scars cross the creek bed.

I dream of a cratered pool, heavy with golden fish, a cat to sweep at them, and a tumbler of whiskey for watching sunset reds dissolve across its shimmering surface.

Pictures never did him justice. When we'd kiss

his water-blue eyes turned milky, as though

for him, my flesh clouded the world,

with me the only real thing in it. His hands

75 on my body would float and tremble,

caught, he'd say, in ocean currents. He’d remember

the expanse he saw once—uncharted waters—

nothing called dust. Just this smooth against his skin.

Long mornings, instead of rolling dough,

feeding chickens, I'd listen to him talk.

How he almost blew a train in half

before he figured how much powder to use.

How he and Harry scammed a sheriff,

rode him back to town in his union suit.

People would slap their backs, buy them drinks.

He'd sprinkle women's names

across his stories like sand.

Split rails came loose in slanting rains.

From Hogan's tree to just south of the footpath,

I unwrapped heavy gauge, cut the wires, then wound

[no stanza break]

new coils around the wood I fit back into place.

Fingers blood-full and tight, they clutched a mug stiff-handed, refused to unbutton the shirt I had to sleep in. At night, my skin remembers his body along mine.

We'd walk the river bed at Brown's Park,

Uinta Mountains rising distant behind blooms

of cactus roses. He'd scrabble in the dirt,

hold out sharks' teeth like nuggets of gold,

or fish scales turned to rock that once

had gleamed like sequins. He'd say my hair

was sandstone, that he could fashion into dreams.

But he'd also say Ann's eyes rushed gray and blue

like floods at spring. He'd call her sister-in-law,

as though we'd married, and kiss her on the mouth.

Just last week, influenza—my stomach dropped like a gully from under my ribs.

Pulled what water I could from the spring, then, thick with fever, fell flat. Laid until daybreak striped my face. Next county’s neighbor brought warm bread and jam—first food in days.

I held berries to my mouth’s roof, as if it were a sin to swallow. Walked out at dusk along the cliffs, the petroglyphs shining: lizards, flute players, worshippers of the sun.

I argue rights with men whose ranches stretch past Steamboat Springs, men who think that water can be broken like a horse, bent by will.

The ones who think each head of cattle's more important than the farmer's child, our sheep, the flowers that line my home like diamonds in the spring. But Green River

[no stanza break]

winds as it winds; it won't be dammed

for any wants. And want, want dries up under this sun; need blossoms,

replaces his body pressing against mine.

Ann rustled cattle from the baron's ranches

while the town looked the other way. Some claim

she rode with Butch and Harry, breakneck at night,

holed up at day with compatriots in Mexico.

Some sighted her in Argentina, white starched petticoat,

serving drinks to gringos on the porch of a house

surrounded by a picket fence. Sometimes

I hear her voice when I walk the flats, the wind

warm from the south.

Box canyon walls soft as leather, tanned and cool beneath the higher glaze of light. My boots steep in sand that courses like a small sea around islands of grass. I heard the sheep last night, bleating in the rain. A coyote, I thought, but this morning, I counted every one.

Now lambs skitter sideways towards the ewes, who know my scent and drop their heads as if to say, what else could there be—sky, walls, this ground that yields under our feet?

Repressed Memories

Trees raised me. Pines.

Their trunks tall and limber.

Whispers, soothing, high above me.

Tender ridges along their skin.

Fragrant beds. Snapshots of their gathering. They cried needled tears for me.

The ache of humans nourished me.

Dirt and the smell of death— rancid, iron. Ashed faces, lonely hands. One woman, a braid still down her back.

An open window, a brick façade.

The measuring of hours.

Sewn together souls, patched and worn—what seems like a world

[no stanza break]

is each of us, tugged by strings of memory that flicker us alive.

We bow, we fall to our knees, we collapse with the effort to seem real.

The Unswerving and Unpredictable Influence of Memory

in William Gaddis’s A Frolic of His Own

“All you really are is your memory,” says Oscar Crease, struggling playwright and frequent litigant in William Gaddis’s A Frolic of His Own (Frolic) (20). Memory is a central motif in this novel whose subject is primarily the legal system. In this 586 page novel, Gaddis warns the reader against the possibility of creating or imposing order, or even the semblance of rational behavior, on what is represented as being our chaotic lives, through reliance on understanding of and memory of the past. Attempts to do so— through apparently methodical and predictable channels such as the use of legal precedent to psycho-rationalization in attempting to understand another’s or our own behavior—are ultimately futile. It is a bleak conclusion that all we are is what we hold in memory, and that memory is mostly unpredictable, irretrievable, and ultimately designed to lead us to disorder. Yet, according to Gaddis, recognizing this may be the best we can do. He does hold out a ray of hope, however, and infers that the “unswerving punctuality of chance” (292) in life may allow for the experience that is sufficiently novel, sufficiently outside the typical scope of behavior—someone able to embark on a frolic of his own, for example—that some order, or an as yet unknown alternative to chaos, might be generated.

83 It should be noted that memory is a slippery term when discussing the uses to which the past is put in this novel. The past clearly does haunt this novel: childhood events, legal cases (both those cases cited as precedent and characters’ various prior legal entanglements), literary references and allusions, and the Civil War are only some of the past references that permeate this novel. But the past is not merely utilized as a fact to be discovered by consensus, but that which characters “remember” in various ways, or which could arguably be remembered in different ways depending on the proclivities of the character, and used to justify current and future behavior. Of course, what is remembered versus what is fabricated or ignored is at times difficult to ascertain, so it is something of a fiction to identify those elements utilized as “remembered” in any verifiable manner. For the sake of this analysis, however, it is useful to identify various forms of “memory” that are investigated and ultimately found wanting in their ability to provide order.

These forms of memory vary from the most institutionalized—law—to that which has the most anecdotal flavor. The legal incarnation is stare decisis, or the process of examining legal cases to determine how the law was applied to a particular set of facts so as to follow past decision-making in a logical and predictable manner.1 Its parallel manifestations in this novel include what I will refer to as: public precedent—the past as reflected by the media, including a focus on what issues or individuals are chosen to be represented and in what particular manner; personal precedent—the events and experiences utilized by each character in regard to him or herself or another character to explain current or expected behavior; and creative precedent—parallels or similarities in

84 style, organization, or other features represented in literature, music, and the visual arts and, in its most encompassing representation, in the book as a whole.

The basis for memory’s instability is instability in words themselves. In representing this, Gaddis uses radically different forms of exposition that are intermingled without warning or explanation. Within each form, Gaddis successfully sets up expectations for understanding and systematically destroys those expectations. The use of different forms reinforces the idea of chaos through a babble of words, both because of the difficulties in understanding each form and the way in which each of the various forms is “dropped in” like a deus ex machina, interspersed throughout other forms of prose, described by characters within the framework of other forms, or involved in some complex rendering of two or more of the previously noted methods. The predominant forms that correspond to the types of precedent noted are:

(1) Fictional legal documents, which include citations of real cases and statutes, that are represented in whole or in part. These are comprised of court opinions and jury instructions, selections of which I will be discussing, as well as a lengthy deposition of

Oscar Crease and a Complaint and an Answer filed by opposing parties. These documents relate to three of the more substantive cases noted in the novel: the case of

Cyclone Seven, a sculpture which is the center of a controversy between its creator Szyrk

(pronounced Zrk) and the venue in which it has been erected as public art, the Village of

Tatamount; Oscar’s copyright infringement case against Erebus Entertainment and its agents, including director Constantine Kiester, whom Oscar accuses of unfair use of his play, Once at Antietam, in creating their blockbuster movie about the Civil War, The

85 Blood in the Red, White and Blue; and the wrongful death case of young Wayne Fickert who drowned in the Pee Dee River while being baptized by Reverend Elton Ude;

(2) Media representations, including not only information presented by the writers of television scripts or news articles, but also by public commentators purporting to reflect the tenor of their constituencies, such as government representatives. Reports are described by characters or the narrator, represented by the author as an original text, or read out loud by characters. These journalistic representations take the form primarily of overheard/described television reports and commercials or of newspaper reviews;

(3) Unattributed dialogue and descriptions of characters’ activities; and

(4) Excerpts or descriptions of a variety of literary and other artistic works.

The primary examples are Oscar’s play, which is also read aloud by various characters and various descriptions of The Red, White and Blue and of Cyclone Seven. Other artistic references, described as being foundations of, or as serving in comparison to these, are also noted in abundance.

Prose tends toward confusion within each category and slips between categories as the characters slip between lawsuits. There are, for example, few markers to indicate when dialogue, which is entirely unattributed, flows into infrequent descriptive passages, and vice versa, all of which can include the rare narrative intrusions. In a scene in which a patient in Oscar’s semi-private hospital room is talking with him from behind a curtain,

Oscar apparently answers, but the continuing prose leads to confusion:

—Shut up! And he settled back into the pillows, squaring his glasses as best he could,

managing some sagging measures of dignity commensurate with the pages before him.

And so we may as well begin this sad story with the document that has set things off or,

86 better, that merely paced the events that follow, spattered as it was all over the

newspapers, since it had nothing directly to do with them, much less its remote

participants, distant in every way but the historic embrace of the civil war in its majestic

effort to impose order upon? or is it rather to rescue order from the demeaning chaos of

everyday life in this abrupt opportunity, as Christina has it, to be taken seriously . . . (29)

[ellipses mine; note in these and other excerpts that ellipses—not uncommon in Frolic—

which are original to the text are represented without spaces]

As the prose continues beyond Oscar’s response, the reader might infer either that

Oscar is cajoling himself to continue reading (“we may as well begin”) or that it is the narrator’s description of the scene, the declaration “Shut up!” also then being taken as the

narrator commanding the reader to quiet any complaints that may have arisen so far with

“we” being readers, and “them” being the characters in the novel, readers of newspapers,

or the direct parties in the case. Ambiguity continues in and is exacerbated by the

remaining paragraph which includes a 271-word sentence (begun in the quote with “And

so we”) and ends with an introduction to a legal opinion, while noting that something or

someone, perhaps the Opinion itself or Oscar, was “haunted by the sense that ‘reality may not exist at all except in the words in which it presents itself’” (30). Given the author’s proclivity for mixing meanings so that there often is no clear antecedent to an action (as in a long sentence which includes the description that “the doctrine of res ipsa loquitur . .

. in Harry’s hands become [sic] the chandelier he’s dropped here in Oscar’s path, arching his good knee”—clearly Oscar’s knee given the text, grammatically Harry’s), the haunting occurs at multiple levels giving rise to, or reflecting, fears of the characters, the reader, and the author. And if we are haunted by the idea that reality may exist only in

87 words, we are haunted even more when those words set us adrift and call into question whether reality may be identified at all.

What follows the lengthy and confusing sentence noted above is the Opinion of

Judge Crease, Oscar’s father, who sits in the U.S. District Court in Virginia, and whose actions we hear about entirely through his legal documents or others’ accounts of him.

The typeface of the Opinion differs from the body of the text, as do all the legal documents found within the novel. While this has the effect of clarifying at least in some instances which prose is which, it also leaves unclear what the characters are aware of as opposed to what readers have read, so that what we as readers remember as a “fact” and what we believe a character may be aware of are not necessarily the same thing. Oscar, for instance, is seen as adjusting his glasses to read the Opinion subsequently noted, but whether he reads it in its entirety, skips sections, or only begins reading and drops off to sleep as he is described later as doing while reading sections of his own play (and where it is similarly unclear how much Oscar has completed), is unclear. Inversely, characters engage in action or discover information that is withheld or left unclear to the reader. In one scene, Harry, the husband of Oscar’s sister Christina, and Oscar’s girlfriend Lily are alone in the sunroom and the extent, if any, of a tryst they engage in is deliberately obscured:

—Not quite the way it works, he told her, letting the knee he’d sharply withdrawn come

back to rest against hers, against the soft length of her thigh against his as he sank back in

the cushions . . . probably wrote this obituary itself before she was born, anyone of any

promise or prominence they're prepared well ahead . . . he went on, short of breath . . .

after a long illness, in a plane crash, in the warm glow of low lights . . . on a couch

88 somewhere, in a bed, no mystical conjunction of death and eros here as she bent closer

over him to go at the spot on his trousers with the damp tissue, his hand brushing her

shoulder as through for it to slip lower dislodging a button would be the most natural

thing in the world reeling round him baring her breast to his lips . . .

—He woke with a start to a voice saying—Don't wake him, poor thing . . . (461)

The fact that this interaction may be a catalyst for later behaviors, similarly mysterious and possibly resulting in some of the more upsetting deaths in the novel, makes even more compelling the ambiguity of meaning with which we are left. The same is true for Oscar’s reading of the opinion and other behaviors of which we are only partially aware. The less we can be certain of the bases for characters’ actions, the more chaotic and unpredictable they, and the events they inspire, become.

Exacerbating this situation is the fact that descriptions of characters are almost entirely lacking except as stock phrases—Lily, for example, is the “carelessly buttoned feast” (471); we are, therefore, called upon to understand characters entirely through dialogue that is as flat and unreflective of emotional states as the various legal documents we read. Affect, intent, age, and relative feelings are all to be guessed at. One instance represents multiple occasions for such uncertainty: Christina is discussing with Oscar’s attorney, Mr. Basie, an interest she has in a race of people, the Ainu (pronounced “I knew”), whom she learned about when visiting Japan during the Olympics.

—I learned more about the Ainu than I know what to do with.

—About you knew, what?

89 —No, the Ainu, the earliest inhabitants, they were a Neolithic people, short, dark, thick

and hairy, heavy beards. . . . It’s on Hokkaido, one of those brand new utterly primitive

cities . . . they’d thrown up these hotels overnight for a winter Olympics, God knows

what they expected in the way of contestants. Women tattooed around the mouth and

bear baiting, apparently that was the big event, slaughtering a bear.

—That’s some Olympics.

—My God no, no I mean the Ainu . . . . We still joke about it, we, I mean Harry has to

shave twice a day when we’re going out I’m awfully glad you met him. He’s talked to

you about all this hasn’t he.

—Tell you the truth I don’t recall he ever talked about your hairy ainu there but . .

—No of, of course not no…clearing her throat sharply—I meant the, this lawsuit Mister

Basie . . . (119-20)

Lack of punctuation and information from the characters or narrator regarding affect results in a conversation the reader finds as confusing as Mr. Basie apparently does. Even with Christina’s clarification, her abrupt change of subject can be seen as consternation in being misunderstood or as impatience or simple rudeness, and it is not until 123 pages later that we find out how she felt (or how she relays that she felt) in this conversation, when she tells Harry “I don’t know what I said, I’m sure I was blushing I almost burst out laughing but he was cool and so serious I couldn’t even, I mean can you imagine?” (243).

It is possible that lack of clarity is the point, but it is less likely that it is the goal, since careful reading and thoughtful attention to clues does reward the reader with at least a modicum of insight into characters and their role in the novel as a whole. It is more

90 likely, therefore, that readers are meant to feel the frustration of lack of cues as a further point that words, while important and perhaps “all we know of reality,” are subjective and capable of multiple interpretations. In fact, more than one commentator has seen in

Christina a sympathetic woman, one “with heart” who is caring toward her brother and the most insightful character in the play (see, for example, Knight 231-34). This reader,

on the other hand, views Christina’s words as indicating an overly controlling and

manipulative character—a difference based in part, no doubt, on what subjective

interpretation is made of, and what precedential experiences are brought to, words whose

meanings are multiple.

These are just a few examples of the many instances of confusing prose that are

found in abundance in the novel within and regarding various forms of exposition. All

the forms Gaddis employs, therefore, have foundational instabilities upon which Gaddis

employs more methods to make the reader question what we can know of, how we can

fashion, and how we might predict reality. This paper will review, in particular, the way

Gaddis represents both the illusions of dependability generated by various forms of

memory and their ultimate failure to provide such dependability, order, or the possibility

of justice. It is, however, in Gaddis’s very representation of this breakdown that the

possibility for order arises.

When the author has presented us with irrefutable evidence that words are

ambiguous at best, and one of the more common refrains in the novel is that the law is

words—“words, words, words, that’s what it’s all about,” warns Oscar’s attorney

91 Mr. Basie (181)—then the warning is clear: all is subject to confusion. This includes

what may be at first perceived to be the more precise language of the legal documents.

On their face, the legal opinions reflect apparent clarity in terms of identifying the

issues to be addressed and the foundations for the decisions reached within them. In

Judge Crease’s Opinion in Szyrk v. Village of Tatamount, for example, we see an

examination of prior cases for each step in his decision-making process, from cases that

consider the circumstances under which summary judgment should be granted to those

identifying whether various claims may or may not be relevant including those regarding

animal trespass, a claim for damages, and allegations of the sculpture being an attractive

nuisance, an allurement, or a public nuisance. Each claim reflects a process of decision

making, including (1) interpreting the law under discussion; (2) considering what legal intent may have been; (3) considering what cases are relevant to the determination of the immediate issue and which are not (although we do not necessarily see all cases brought before the court which have been discounted as irrelevant or immaterial); (4) gauging the fit between the way in a which a rule of law in a previous case was applied and the circumstances under which it was applied with the current set of circumstances; and (5) determining how far a rule or precedent found in a prior case can reasonably be stretched.

The process, therefore, includes much more than what appears to be simply finding a case to use as precedent. Moreover, each determination serves as a foundation for final decisions in the case. A finding of whether the structure is an attractive nuisance, for example, is a partial basis for determining whether a summary judgment can be granted.

Each step, therefore, if shown to be unstable, calls into question the ultimate decision.

92 In the Cyclone Seven case, Judge Creases’s decision-making process in

determining whether the structure should be an attractive nuisance or not is notable in

regard to the difficulty of seeing these steps as logical and predictable The court compares the case to one in which an attractive nuisance had been found and in which there was “a boy similarly entrapped and provoking a similar outcry until a proffered ten dollar bill brought him forth little the worse. However,” the court notes, “a boy is not a dog” (33). True. It is interesting to note, however, that rather than using a precedent in which an animal was not found capable of identifying a structure as an attractive nuisance, the court takes judicial notice of the difference between a boy and a dog and uses his own understanding of that difference to infer the reasoning behind the attractive nuisance doctrine: “[A]bsent [the dog Spot’s] testimony [he has] neither a perception of challenge to his prowess at climbing nor any aesthetic sensibility luring him into harm’s way” (33) and thus the judge rules that the structure cannot be considered an attractive nuisance to him.

Similarly, in regard to the determination of whether a public nuisance has been created, where quality and quantity of the nuisance are both relevant factors to be considered, the court relies on cases that relate to quality of nuisance, while the judge himself appears to determine what the appropriate quantity is. While a public nuisance is something which is considered an “obstruction” and something making passage

“inconvenient” and “unreasonably burdensome” upon the “general public,” therefore, the court determines from other sources—a few cases, the witnesses’ testimony, and his own judgment—whether the structure is obstructive enough, inconvenient enough, unreasonably burdensome, and a matter for the general public as opposed to only a

93 segment of the public. Applying the law is definitely part of the decision-making policy, but also noted is a sampling of the public’s comments recounted in the court’s decision, such as: “’Since that [expletive] thing went up there I have to park my pickup way down by Ott’s and walk all hell and gone just for a hoagie’” (35). Despite the court’s apparent readiness to extrapolate in other instances, it is interesting to note that comments such as these which appear to highlight the burdensomeness of the structure lead the court to conclude that the inconvenience is merely individual in nature and not representative of an inconvenience to the general public. The population referred to in this quote also happens to reflect the judge’s constituency; this constituency is described by the judge’s daughter, Christina, as being of a quality that she could not understand how her well- educated and sophisticated and, it appears from her accounts, impatient and unsympathetic father “could have put up with” for thirty years (498). It becomes a question of whether only precedents are being considered or whether factors such as emotional responses to the individuals involved are influencing the determination of the case.

Other extra-legal “precedents” are noted in the Opinion. At one point, Judge

Crease quotes the Merchant of Venice in querying “’Hath a dog money?’” to which the answer “must be” no and therefore the Judge determines the dog not to be an adequate party to be sued for damages (32). The Judge also, however, dismisses as irrelevant a case cited by plaintiff that is taken from early English law stating that when one’s animals break trespass, “’I shall be punished, for I am the trespasser with my beasts”

(32), and identifies as controlling the lack of clearly identifiable parallels in the

Commonwealth of Virginia. It seems difficult to contend, however, that the case is less

94 parallel than the Merchant of Venice quote, or any of the numerous references the Judge

makes, and in some measure relies upon. These references include the claims of

detractors to the claim for pecuniary damages owed to the plaintiff/artist that many

renowned artists have suffered throughout history, including Whistler, the Cubists,

Stravinsky, Ibsen, and John Keats (39). It is, of course, a different matter to bring up

information as a matter of elucidation and to use legal decisions to determine outcomes,.

However, it is the very blurring of these boundaries and lack of clarity as to what is mere

elucidation and what is controlling that is the point.

Interestingly, after lengthy consideration and review of many issues, some of

which seem decidedly factual in nature as opposed to legal—such as the degree to which

the sculpture is considered a nuisance—Justice Crease dispenses with what seems to be

the sine qua non of the argument for a summary judgment for an injunction (a

determination supposedly reached only when “’there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law’"

quoting Steinberg v. Columbia Pictures et al. (31)),2 in one concluding paragraph. He notes that all the “foregoing notwithstanding,” what matters is whether an “invasion” to retrieve the dog would result in irreparable harm to the sculpture. He states:

Bowing to the familiar adage Cuilibet in arte sua perito est credendum, we hold

the latter result [irreparable harm] to be an inevitable consequence of such invasion and

subsequent attempt at reconstitution at the hands of those assembled for such purposes in

the form of members of the local fire Department, whose training and talents such as they

may be must be found to lie elsewhere, much in the manner of that obituary upon our

finest poet of the century wherein one of his purest lines was reconstituted as ‘I do not

95 think they will sing to me’ by a journalist trained to eliminate on sight the superfluous

‘that’” (39-40).

Not only does Justice Crease dispense with the case on what appears to be a

finding of fact based on the moving party’s allegation of irreparable harm, but does so by besmirching the abilities of local fire fighters and a nameless obituary writer.

This happens again, under an even more questionable set of circumstances, in a later suit

regarding Cyclone Seven. In this Opinion, like the earlier one, Judge Crease apparently

considers a variety of information, including definitions of animal trespass and

assumption of the risk and proximate cause, quotations from Sir Francis Bacon, Lord

Chief Justice Lord Edward Coke, and issues relating to Ockam's razor (289-92).

Relating to legal precedent, the court quotes the Opinion in Marshall v Nugent in nearing its review of the jury’s decision in favor of the plaintiff: "'When an issue of proximate cause arises in a borderline case…we leave it to the jury with appropriate instructions.

We do this because it is deemed wise to obtain the judgment of the jury, reflecting as it does the earthy viewpoint of the common man;" (293). After quoting one of the common men who spoke as witness in the trial at hand, "God struck that (expletive) pile of

(expletive) with his good old lightning because it's an (expletive) abomination on this beautiful land" (293), and stating, in relation to the act of God under question, that "God has no place in this court of law" (293), so that what appears to the be only loophole— rendering the action under consideration exempt as being due to an act of God—is sidestepped, Judge Crease nonetheless takes the judgment away from the jury and renders a judgment notwithstanding the verdict ("N.O.V.") in favor of the defendant.3

96 Interestingly, the determination by Judge Crease comes after the Judge has

apparently denied a motion by the plaintiff to direct the verdict before trial ("our

instructions . . . should better have issued a directed verdict for the defendant and his cross-claimant" (293)). If the jury had decided in favor of the defendant, the judge's opinion in favor of the defendant would never have been revealed. When the jury revealed its preference for the plaintiff, however, the judge was forced to reveal his preferences—preferences that arguably could have been influenced by legal or extra-legal factors. This is especially true by this point in the novel; readers, and Judge Crease, have been exposed to increasingly inflammatory publicity regarding both Oscar's lawsuit and

Judge Crease's father's purported behavior in the Civil War which is referred to in

Oscar’s play. Also rendered in virulent sound bites is the possibility of appointment of

Judge Crease to the Court of Appeals which has engendered close scrutiny of the Judge

together with his decisions and have made the outcome of those a factor which rests in

the balance of whether or not he will receive the appointment. It is inferred, moreover, that such an appointment would be relished by a jurist who purportedly wrote decisions

not “for love of anybody. . . [but] love of the law” (559), for whom words were

everything, and whose condescension toward the people in the community in which he

worked as federal trial court judge was barely veiled. To escape having to be involved

anymore in the banalities of issues of fact in trials and instead deal with appellate issues

must have seemed to be a release before death for the old jurist. These concerns, and a

now-dead dog who has been killed by a lightning strike of the sculpture—and which has

resulted in a flood of public opinion against the sculpture and its artist—are apparent by

the time Judge Crease renders this Opinion.

97 Concerns regarding the revealed preferences of Judge Crease and the use of

precedent in this Opinion are in keeping with what some researchers have noted about

Supreme Court decision making. In the article by political scientists Jeffrey Segal and

Harold Spaeth in which they first detailed their controversial research regarding the use

of precedents in Supreme Court decision making, they note that while not disagreeing

with the idea of precedent as important to justice, in regard to its use, “the empirical

results are to the contrary” (981). The authors note that, while stare decisis is emphasized by lawyers and jurists alike as being a “crucial component of the legal mode,” and while their study does not indicate what factors are the influential ones in the majority of decisions made, the factor of stare decisis is not predominantly influential

(981).

Part of the problem, as noted with Judge Crease’s decisions, is that while other cases may establish a rule of law, the scope of that rule as applied to a different set of facts needs to be reexamined. A dog is not a boy; given that, does the scope of the rule change? These are gray areas in which use of precedent is difficult to determine. What

Segal and Spaeth look at as determinative is to establish a set of circumstances where we know what the preferred decision would be based on the language used in landmark decisions, and see where preferred outcome differs from precedent. These “revealed preferences” might be based on multiple factors, “including [the justices’] reading of the text or intent, as legalists believe, or their attitudes and values, as attitudinalists believe”

(974)4 but what they tend not to be based on, in all but 9.2% of the votes reviewed by

Segal and Spaeth, is precedent.

If "the law" is not followed, is some other quasi-identifiable factor such as

98 "justice"? This question is reflected in the controversy noted repeatedly in the novel

between the philosophies of Justices Learned Hand and Holmes in which the former finds it important to be considerate of current exigencies (“‘Do justice, sir, do justice!’” he

notes to Holmes (285)) while the latter would err on the side of application of precedent

(“ ‘That is not my job,’ he says. ‘It is my job to apply the law’ ” (30))—a viewpoint

Judge Crease appears to follow. Harry, attorney and son-in-law to Judge Crease, and

who seems to be the novel’s voice of reason, describes this pursuit of law over justice as

“Trying to rescue the language” (285). Even here, however, the apparently contradictory

“jobs” are recognized more as two points on a spectrum than opposing ending points;

Justice Holmes is also quoted as noting that “precedents survive in the law long after the

use they once served is at an end and the reason for them has been forgotten. The result

of following them must often be failure and confusion from the merely logical point of

view” (292). How often, how strictly, and to what use “the law” is applied may

determine how strict a constructionist one is considered on the one hand and how loose

one plays with the law on the other. As Segal and Spaeth noted, that a judge doesn't

follow precedent but instead follows preferences may be apparent, but it is not clear what

factors influence the divergence, including whether or not it is a search for justice.

These kinds of concerns are similarly evident in the Opinion by Federal Appellate

Court Judge Bone in the appeal of the case of Crease v Erebus Entertainment. In this

case, the plaintiff alleged copyright infringement and the lower court found for Erebus

Entertainment on a motion for summary judgment. In this case, Justice Bone’s questions included in large part the determination of whether the legal issue at hand should involve the novelty of the artistic endeavor or its originality. Discussion is offered of the

99 differences in those terms as well as the divergences in the cases, including the opinion of

Judge Learned Hand in which he holds, as the court finally does, that it is not novelty, but

originality, that is the issue (406-07). Questions, therefore, of ordering, arrangement, and general expression of elements within an artistic work, as opposed to means of

expression, specific characters, and other factors, can and must be taken into account to

determine whether or not a work is sufficiently novel. It is not fruitful, according to the

court, to determine its originality—whether or not something is a “new” thought or

instead relates to an event that could be held in the general memory. The court focuses

on the determination, as an appeals court is directed to do, of what legal issues should

have determined the outcome of the judgment and does so largely on the basis of an

amicus brief filed on behalf of plaintiff’s case. However, in a surprising move, the court

then decides that the various factors all were substantive enough not only to warrant a reversal of the lower court’s summary judgment, but also to warrant an injunction and a

finding of damages against the defendant—determinations more commonly made after

issues of fact are considered and which is more generally within the purview of the lower

trial court than the Court of Appeals. It is to be questioned how influential were thoughts

of what we learn later to be the origin of the amicus brief—a brief filed by a “friend of

the court” whose interests relate to the case at hand—that Judge Crease himself wrote the

brief filed by Oscar’s attorney of record and, according to Oscar, “knew Judge Bone and

knew he’d see right through it” (521). This is not to discount that, according to Judge

Crease’s law clerk, the Judge had his clerk “up for two nights digging out every citation

that applied and a hundred more to be sure” (559). But what effect the cited cases had and

what effect was wrought by a fellow judge’s obvious interest in the case is left

100 unanswered, although given the quick dispatch of arguably factual issues, extra-legal

interests may well have been at play.

Finally, such concerns are also raised in the last legal document noted in the

novel, the jury instructions in the case of Fickert v Ude. After coming under fire for his

"God has no place in his court room," statement, Judge Crease again returns to religious

concerns. Although bluntly calling Catholicism a “widespread cult” (428), Judge Crease

nonetheless applauds plaintiff’s religion by calling it “the laudable doctrine of this

venerable Christian sect” in which “baptism is deferred until an age when the candidate is

believed able to understand the depths of this commitment” (428). Although he instructs

the jury to disregard as irrelevant certain biblical references (427), he also quotes the

Bible to affirm that the Reverend named as defendant was “engaged on his master’s business much as, we may recall in Luke 2:49, this selfsame master at age twelve found lagging behind at the temple in Jerusalem by his anxious parents, rebuked them saying

‘Wist ye not that I must be about my Father’s business?’” (429) and later refers to

Matthew 8:26 which he quotes as relevant to the actions of the Pee Dee River in which

Fickert drowns, calling the baptism “this solemn assignment” (429)—language which

reinforces both a certain, subjective interpretation of the proceedings and one that seems

at odds with his prior determination to keep God out of the court room.

In a brief conclusion reminiscent of his decision in Szyrk, Judge Crease instructs

the jury to dismiss the boy’s mother’s claim on the basis of contributory negligence—

often a factual determination—and directs a finding of damages for the boy’s father in the amount of his son’s clothing plus $1 in punitive damages. Solomon-like, he splits the decision between the parties—offering an award to the boy’s family that is purportedly

101 compensatory but will not antagonize the religious followers of the Reverend Ude.

While he carefully discriminates in his legal terminology, carefully parsing out the

classification as one of “assumption of the risk,” a specific category of contributory

negligence which may or may not be the correct determination in this case but which

reflects a prima facie careful analysis of this issue,5 he nonetheless moves surprisingly to

take control where the jury seems to be the more appropriate decision-maker. Not surprisingly, reaction to the suit clears the way for his appointment to the appellate bench.

Senator Bilk, who had been his main opponent, notes that the Judge's work

“ ‘exemplif[ied] the highest ideals of our great American judicial system without fear of failure’ ” (465).

The ability to utilize legal memory, as exemplified in the documents Gaddis creates, in a fair, equitable, predictable, or orderly manner is at best called into question.

At worst, it is the result of judge’s own notions of right and wrong, attempts at self-gain, and the desire to avoid embarrassment and protect family history. Given the final outcome of some of these decisions in which judgments are rendered essentially moot when other suits serve to negate the benefits of decisions, when lengthy proceedings extend beyond the point at which decisions are useful to the parties at hand, or when lawyers’ fees take their toll—some of the outcomes of decisions noted in Frolic, even those decisions arguable beneficial become part of an ultimately chaotic future.

102 III

If, as seems to be the case, Gaddis employs legal precedent as the most predictable, orderly form of relevant information, attempts to utilize information in the public and personal realms seem futile by comparison. In the public memory, precedent seems short-lived, if it is utilized at all. Public reaction as seen through the media is represented as one based on short-term, rather than long-term memory; precedent further removed from the last major reported events seems nonexistent. From television reports, we see a public that, with news of the dog’s imprisonment within the sculpture’s jaws,

“has taken Spot to its heart,” with “Free Spot! T shirts” and marchers for rights that are only tangentially related to Spot’s imprisonment (animal rights, right-to-life groups) in full force (48). With news of Judge Crease’s inflammatory comments, the public’s view is reflected by the burning of Judge Crease’s “black robed effigy” and Senator Bilk’s statement that “we have an answer for that, call it impeachment” (295). As noted, Judge

Crease’s later Opinion in which he mollifies both religious parties brings a change of heart to Bilk and the constituency he represents, as though the Senator and the public have forgotten the apparently contradictory values represented previously. In a seemingly endless regression of amnesia, we also see the ultra-conservative, Bible-belt

Bilk embracing Gay Rights groups when it is revealed that he spent a night with a transvestite, and the public apparently responds favorably without asking questions about the change of heart.

It is important to note that we see the public memory and its responses through the media and are left to wonder whether the sentiments reflected are representative of the public as a whole or are more representative of a media in search of attention for

103 itself. We see a media careless in its memory, calling Oscar “Oswald” and misstating

Judge Crease's history. We also see the selective use of memory when helpful to support a certain slant on an issue. After articles and news stories inferring a jurist out of control, articles surface about the Civil War experiences purportedly relating to Oscar’s grandfather—“They’ve dug around in their musty old newspaper morgues down there . . . come up with these yellowed clippings” notes Oscar, “digging up anything they can, anything to try to make the whole family sound mad”(109)—and insinuating that the purported madness of the past has affected Judge Crease’s decision-making: “PAST

COMES TO LIFE IN SYRK DECISION, ECCENTRIC JURIST SPARKED HOMES

COURT” (109). The power of such information is not taken lightly by the characters.

The Judge’s continued controversial sound bites are noted by Harry as akin to fuel for a fire: “you don’t feed the fire, you don’t lose your temper and hand them a headline like this last one. DAMN THE PUBLIC’S RIGHT TO KNOW, SAYS JUDGE. Not the way to get seated on the higher court” (241). The characters recognize that use of remembered events by the media is short-lived and potentially inaccurate but also powerful and can lead to unexpected and unwanted results.

Besides the chaos that can result from inaccuracies, the ubiquitous nature of the media and public information in general and the surreal result of different kinds of coverage lead to a portrait of a chaotic, depressing life that purports to represent the

“real” world while at the same time confounding our (the characters and readers) understanding of it. The various memories held by the media at large are at odds with each other, never coming to terms with the memories as a whole. Television programming is ubiquitous, and juxtaposes metaphorical nature shows that show life and

104 death struggles of insects with commercials. for gastric discomfort immediately after news programs reporting carnage incurred in ongoing wars. Fact and fiction, time and causation blur, as when Oscar sees yet another report of his father’s figure being burned in effigy and it is in the midst of confusion regarding its replay that Oscar is finally told

by a family member that his father has died (463-64). When Oscar asks, “while staring

fixedly at a new itch fighting shampoo” (464) how they knew of his father’s death,

Christina tells him she read the details in the paper. Oscar argues: “It was not in the paper! I read the paper and it was not in the paper!” (464), as if not being reported could make the discovery any less real. As if staring at the anti-itch shampoo can change what’s reported to the mundane instead of the enormously consequential. What was public becomes private, what was trumped-up tragedy becomes real. What events are remembered, to what use they are put, and how they are linked or not to other events is unpredictable and forms a view of the world, real or not, that characters see as a reflection of their lives.

Lurking within the legal and public uses of memory is the personal—what each agent or actor utilizes in regard to his or her own personal set of experiences and events.

In Frolic, characters often appear both highly influenced by past experiences and, almost shockingly, not influenced at all. Attempts are made by characters to attribute an understanding of present behaviors to past events, whether it’s Christina’s excuses about her friend Trish whose marriage and past experiences with law suits make her the suit- happy litigant she is in the present, or Oscar’s girlfriend Lily’s overly-controlling father and the men in her life who we see as potentially causative of her willingness to be the catalyst of a fatal car accident. The attributions of the way in which past memories might

105 affect the present psychology of a character are most pronounced with Oscar. We are

reminded repeatedly, through Oscar’s descriptions and especially through Christina, of

Oscar's childhood and his relationship with his family to explain his solitariness ("I used to play all the time I didn't need other boys" (267)), his frugality ("That egg he wouldn't

eat at breakfast when he was what, seven? and she puts it in front of him again at lunch?

Roast chicken for dinner and he's still sitting there gritting his teeth against that egg it

went on for two days" (45)), his desire for money ("What do you expect me to do!

Burrow in the cushions for change that fell out of [father's] pockets?" (317)), and his need

to write and produce his play first for his grandfather("really the first friend he ever had"

(47)) and then for his father, whom Christina describes as "all he was afraid of" (13).

One incident described by Christina as “heartbreaking” is repeated as one that "filled

[him] with terror" and "should have been a warning that you could never please Father"

(267-68). This incident is held out by Christina such that she sees him later as that same

"little boy down there by the pond" whose father "never let Oscar forget" that he

shouldn't have stripped the bark from the birch tree his father later had cut down (397).

Even more mundane memories are recounted; Oscar's present-day desire for an aquarium

is described by Christina as being "like that ant farm you sent off for when you were

seven and we had them all over the house" (320) and urinating off the veranda is seen as

a mirror of the past: how he "used to try to write his name on the snow" (569).

While it's tempting to attribute such childhood incidents to the temperament of

Oscar as an adult, it also raises the same question Christina remembers Oscar shouting

after he faced the eggs for two days: "which came first! the chicken or the egg!" (45).

Oscar may also have been a boy the other children didn't want to play with and a son

106 from whom the father became estranged because of the son's native personality and his constant, and irritating, desire to please. It's also not unlikely that the person we are getting a look at is Christina rather than Oscar; we may be learning more about

Christina's proclivity to attribute blame to someone or something other than the immediate actor or event, or about her own projected disappointment in her father who is never noted as having recognized his step-daughter. Much like relying on legal precedent, the characters purportedly rely on instances of past behavior to justify current behavior, although the connection, or what and about whom such rationale reveal, may be just as questionable.

Characters also seem unaccountably to forget recent past events or recent

"holdings" that they've made about themselves or others. Christina explodes at her father's law clerk for being insensitive to the family’s needs when, although she is first told of her father’s death from her husband Harry (who presumably learned of it from news reports), she has to discover the details surrounding the death in the newspaper.

Despite her exasperation at not knowing, she withholds the information about his father's death from Oscar and it is not until that night, after meals are eaten, shopping done, and

Harry has come out to the house that Oscar hears the news from his girlfriend after seeing the report noted previously as featuring his father. Similarly, Christina anguishes over her father's decision to be cremated: "always coldblooded right to the end ordering up this cremation without even a fare-thee-well?" (487), but when her husband Harry dies, we overhear a phone conversation in which Christina justifies to Harry's sisters her decision to cremate his body immediately. We also understand from Christina's comments that the sisters have been forced to discover details concerning Harry's death

107 through an obituary (524-25). Even more chillingly, although Oscar has been

preoccupied with thoughts of his father throughout Frolic, he blithely watches the

blockbuster Red, White and Blue on television the night he finds out about his father's

death, as though he’s forgotten about the loss already. Christina, professing her love for

Harry, nonetheless fails to explain his death to her brother and focuses entirely on finding

out whether she will receive the life insurance policy Harry has told her will be hers.

And although Harry seems to be a careful and conscientious husband and lawyer, that

statement will also prove false when it’s made clear that he has “forgotten” to provide

adequately for Christina in his will.

While precedents within the law, media, and the public psyche are utilized in

Frolic in bizarre and chaotic manners, such precedents nonetheless seem to be considered

by those utilizing them to be a reliable and predictable process of establishing order.

However, the artist’s job is noted as being different; for the artist to eschew precedent is expected. "Isn't that what the artist is finally all about?" questions Oscar in considering the role of art and the artist. "Where it's all laws, and laws, and everything's laws and he's done something nobody's told him to" (399)—where he diverges on a frolic of his own, calling upon no master's laws to direct his behavior, as the legal phrase is explained.

Tension exists, however, between the expectation for an artist to produce novel work and

the realization that influence—or the manifestation in a work of the memory of others’

work—is ever-present.

108 Frolic abounds with instances of literary and artistic work which asks the question

of how much an artistic work can “remember” of another’s and still maintain its novelty; the most obvious examples is the subject matter of Oscar’s lawsuit regarding his play.

The copyright infringement suit Oscar brings against Erebus is predicated on film director Kiester's unfair use of Oscar's play in turning the Civil War incident of brother fighting brother—purportedly based on Oscar’s own grandfather and uncle—into a blockbuster movie being marketed for its sex and violence, elements not exaggerated in

Oscar’s play. Oscar's play, in turn, is based on numerous sources, primarily family lore and public documents relating to the incident, George Fitzhugh's ideas of wage slaves

(107), and Socrates' ideas of justice and order with sections lifted from Plato's Republic

(112). Judge Bone, moreover, identifies "unattributed views of Albert Camus on total

justice and of Rousseau on absolute freedom" (402) within Oscar's play and even the title

is an admitted allusion to Shakespeare's Othello (193). The legal proceedings center

around how the conscious or unconscious memory of others’ work and its incorporation within a purportedly new creation, can be used in a sufficiently novel way so that the entire enterprise is considered novel in ordering, arrangement, and conception. The

specter is raised, however, as to what if any work can be truly without “borrowing” from

other sources.

Many real literary and artistic works referred to in Frolic are also noted as having

borrowed material: Shakespeare's plays as being based on Holinshed's Chronicles and

Plutarch (216), Plato's ideas on Aeschylus (224); even more broad quotations are noted as when Judge Crease identifies "beauty synonymous with truth" being expressed in

Donatello's David, and "the very essence of the sublime" in the Milos Aphrodite (34).

109 The author of Frolic itself utilizes and integrates other works his creation. Characters quote parts of literature as when Oscar and Mr. Basie quote lines from Yeats (about which Oscar says, "Well, we share something then don't we Mister Basie, no small thing either" (88)), Christina and Oscar refer to Frost's "Fire and Ice," and Attorney Madhar Pai shares literary allusions with Oscar regarding his play, art, and religion. Unattributed references include countless poetic nods, including those to Shakespeare, ("That time of year? . . . when yellow leaves or none, or few he could have told them" (324)), Stevie

Smith ("he's thrown you both ends of the rope up there on the bridge waving goodbye while you're not waving you're drowning" (500)), and Longfellow, in the many references to "Hiawatha" that seem central to understanding the dynamics between Oscar and his father.

The suggestion is strong that creating art without reference to another work— being truly and totally on a frolic of one’s own—would be an impossibility. Legally, in fact, old ideas used again are not surprising to courts and are not a legal concern. It is the too-close duplication of the expression of those ideas that are the concern. In fact, in considering what would be a totally original idea, the court resorts to almost fantastical suppositions: "if by some magic a man who had never known it were to compose anew

Keat's Ode on a Grecian Urn, he would be an "author," and if he copyrighted it, others might not copy that poem, though they might of course copy Keats's" (412). One problem, of course, is in believing that a man "had never known" Keats's poem. If it were exactly the same, what jury would believe that he hadn't seen the poem? How could

"the author" prove the presence of factors other than reading "Ode on a Grecian Urn?"

But even more, it calls into question methods of creation and our subtle appreciation for

110 using memories of not only other’s artistic work, but using our own experiences as part of our creations. How, then, could two individuals share not only references (especially when separated by such time and space as a modern day writer would be from Keats), but personal experiences such that the creation could be exactly the same? Our appreciation for this having to be either fraud or magic calls upon our understanding of the use of memory and borrowing in artistic creation such that it is not the question of whether or not anything has been borrowed, but clearly how much and in what way. Frolic itself reminds us of that—despite the plethora of allusions, the reader would be hard pressed to consider this anything but a novel novel, and find it hard to conceptualize what a novel could look like without any referentiality outside itself.

In fact, art that does not borrow at all is considered by one of the characters in

Frolic to be not art at all. According to Judge Crease in his decision in the Szyrk case, there is a danger in having an artistic endeavor be merely self-referential. He excoriates the idea that art can or should be non-referential. "[I]n having become self referential art is in itself theory without which it has no more substance than Sir Arthur Eddington's famous step 'on a swarm of flies'" (34). Art critics, Judge Crease continues, who would claim precedent for the sculpture in "slope, tangent acceleration, force, energy and similar abstract extravagancies serv[e] only a corresponding self referential confrontation of language with language and thereby, in reducing language itself to theory, render[] it a mere plaything" (34-35). Art, therefore, according to Judge Crease, cannot by definition be so self-referential as to not hearken to anything outside itself.

Creative precedent, therefore, is accepted as part of the product and, unlike the other expressions of precedent, clear causal connections are not necessary to our

111 understanding that such precedents are operative, are acceptable whatever their origin, and are expected unless the precedents are too clear. If we don’t expect true originality then, what do we expect of artists? Despite any illusions of creating something from nothing and sending artists off on frolics of their own, we realize they won't really be alone; they are expected to recombine their precedents so that the end result appears original—a product, it could be argued, of being open to chance combinations of prior information.

Gaddis has made a point of showing us, in Frolic, the many foibles to which man is err. He does this especially in our willingness to depend on the idea that we can use the past rigorously and predictably to control present and anticipate future behaviors.

When asked in an interview as to what the goal of literary workmanship can be in our times, Gaddis noted what was present in his first three novels which seems equally apparent in Frolic:

I constantly try to call attention to what my mother had told me once

at some paranoid moment of mine: “You must always remember that

there is much more stupidity than there is malice in the world.” . . . .

This is what we must—if we can’t teach it, which we can’t—at least

call attention to. (Abádi-Nagy 86)

Calling attention to our “stupidity” in thinking that we can reliably create a reality from material that is, ultimately, subjective and shifting, is perhaps all Gaddis can do in

112 this novel. But he does seem to attempt to go beyond only presenting a mirror at which

we can see our shortcomings. In emphasizing the difference between the creative arena,

where chance is expected, honored, and appreciated, and the other arenas—law, the

media, personal behaviors—where chance is something to be eschewed and about which

to be concerned, we see the chance for a life that may be just as unpredictable but easier

to live within. Without the illusion of something to depend on, the result is "panic at

living in a meaningless universe" (375). Only those brave souls who can accept living

without this crutch and can ride the unpredictable tide, like the character Mr. Basie, "a free spirit" who "freed himself of these illusion of absolutes" and "had the courage to live in a contingent universe, to accept a relative world" seem, paradoxically, to act in a deliberate and effective manner (377-78). To paraphrase the quote of an anti- foundationalist, Stanley Fish, perhaps what the apparent confusion “is unable to give

[us]—knowledge, goals, purposes, strategies—is what [we] already have” (Fish 355).

A purported review of The Red, White and Blue may be haunted by Gaddis's wish

for the novel itself:

In other hands, [it] might have offered [an opportunity to explore implications of] . . .

man against himself, of self delusion and self betrayal, of the very expediency at the

expense of principle we see blindly laying waste to our hopes and our future today, of the

urgings of destiny, and the unswerving punctuality of chance (54)

It is only in the last phrase that an otherwise negative view of life is viewed more

positively. Justice, order, and a move away from chaos may be possible if we are able to

113 accept the role of chance in building upon the experiences in all arenas of life, not just the creative sphere.

In an interview with Malcolm Bradbury, Gaddis described life using two metaphors involving cars. One was that of a car being driven down a hill, in the dark, without breaks, by a seven-year-old. The other was an incident he'd heard on the news in which two boys were driving a car—both so small only one could work the pedals while the other handled the steering wheel, and neither knew what the other was doing. By chance, without worrying about what they have done in the past or what prior experiences should control, they may connect in a way that allows them to work together to bring the car under control. It is only with the naïve optimism that they'll negotiate the terrain safely can they achieve that end.

Such a scene is reminiscent of the way in which Frolic closes. Having been steeped in the seriousness of Christina and Oscar throughout the novel, where typical activities are reading newspapers and grocery shopping, the reader is confronted with an atypical final scene. A number of times throughout the novel, the reader is reminded that one salient memory of Christina’s childhood was when Oscar would "jump out from behind doors . . . grabbing [her] and tickling [her] till [she] screamed" (13). The last scene shows us Christina's reaction to Oscar's sudden bursting out from behind a door, tickling her so she couldn't breathe (586). It could be that Oscar has finally gone mad from the pressures of an unpredictable universe. More likely, however, we are left with a glimpse of the alternative: how acceptance of, and indulgence in, the chance encounter, the unexpected memory, may be the final positive hope.

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WORKS CITED

A.B.C.N.Y. Report of Special Committee on Impartial Medical Testimony, Report 5

(1950): 199-200 (1950)

Abádi-Nagy, Zoltán. “The Art of Fiction CI: William Gaddis.” Paris Review 105 (Winter

1987): 54-89

Black's Law Dictionary, 4th ed. Ed. Henry Campbell Black. St. Paul, Minn: West Pub

Co, 1968.

Bradbury, Malcolm. Writers in Conversation 13: William Gaddis. Interview. London:

Institute of Contemporary Arts, 1986. Videocassette from the Rowland

Collection, Northbrook, Ill.

California, Corwin v. Los Angeles Newspaper Ser. Bur., Inc., 4 Cal.3d 842. 1971.

Cardozo, Benjamin N. The Nature of the Judicial Process. New Haven: Yale U P,

1921.

Estate of Lances, 216 Cal. 397. 1932.

Fish, Stanley. Doing What Comes Naturally: Change, Rhetoric, and the Practice of

Theory in Literary and Legal Studies. Durham, SC: Duke U P, 1989.

Gaddis, William. A Frolic of His Own. New York: Poseidon P, 1994.

Knight, Christopher J. "A Frolic of His Own: Whose Law? Whose Justice?" Hints and

Guesses: William Gaddis's Fiction of Longing. Madison, WI: U of Wisc P,

1997.

115 Mensch, Elizabeth. "The History of Mainstream Legal Thought," The Politics of Law:

A Progressive Critique, 3rd ed. Ed. David Kairys. New York: Basic Books,

1998.

Nunez v. Superior Oil Co. 572 F. 2d 1119 (5th Cir.). 1978

Planned Parenthood v. Casey. 120 L Ed 2d 674. 1992.

Prosser, William L. Law of Torts, 4th ed. St. Paul, Minn: West Pub Co, 1971.

Segal, Jeffrey A. and Harold J. Spaeth. "The Influence of Stare Decisis on the Votes of

the United States Supreme Court Justices," American Journal of Political Science,

40. 4 (1996): 971-1003.

116 NOTES

1In a novel in which the word “Justice?” provides the opening line, it is interesting to note

Justice Benjamin Cardozo’s comment: “[a]dherence to precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed administration of justice” (Cardozo

34). When concepts of order permeate the work (“all [Oscar’s] looking for is some kind of order”

(11)) the majority opinion in Planned Parenthood v Casey should be noted in which it was stated that “no judicial system could do society’s work if it eyed each issue afresh in every case that raised it. . . . Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedents is, by definition, inescapable” (699-700)

Fair warning has also been given in support of stare decisis as noted in Otter Tail Power Co. v

Von Rank in which it was described as being “grounded on the theory that security and certainty required that accepted and established legal principle, under which rights may accrue, be recognized and followed” (Black's 1578). Justice, order, and predictability—what more can be desired?

2 Traditionally, courts are not to use summary judgment as a basis for which to “deprive a litigant of, or at all encroach upon, his right to a jury trial. Judges in giving its flexible provisions effect” are admonished to “do so with this essential limitation constantly in mind” as noted in

Nunez v. Superior Oil Co. (1123). In any case in which there are facts that could give rise to triable issues, therefore, “[t]he court may not pass upon the issue itself” (1123). Summary judgment is proper only if documents relating to the opponent of the one moving for summary judgment are “liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary judgment is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts.” (California, Corwin 851).

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3 It should be noted that Judgment N.O.V. is even more of a concern in its use than summary judgments. A directed verdict is to be granted “’only when, disregarding conflicting evidence and giving to the plaintiff’s evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantially to support a verdict in favor of the plaintiff if such a verdict were given.’” (Estate of Lances, 400). In other words, fiction must be employed in ignoring an entire set of facts and in blindly adhering to only one perspective regarding the other set of facts. Like summary judgment, judgment N.O.V. presupposes the preference for jury determination and finality in its determination where arguable issues are at stake. It is interesting to note, however, that at least one commentator has seen an essential paradox in determining which issues could reasonably be decided either way based on sufficient issues of fact and law. If an issue of fact can be decided either way, Professor Jerome Michael notes that it is to say about such a determination that the trier “cannot, by the exercise of reason, decide the question” and that, therefore, “the decision of an issue of fact in cases of closely balanced probabilities” must be “in the nature of things” an “emotional rather than a rational act.”

(A.B.C.N.Y., 199-200)

4 As noted by Segal and Spaeth, legal precedents may be adhered to by jurists but, when personal preference and precedent align, a reviewer cannot tell which was determinative. It is only when revealed preference veers from precedent that it is clear that other factors are involved—including factors based on legal reasoning—through it is unlikely we could ascertain what those factors include. Such factors potentially include the attitudes and moral values of the jurists. Such complaints about jurists go back before King Solomon, but the legal realists of the

1920’s–1940’s helped lend more credence to such concerns and argued that objective legal methodology didn’t exist and that, in fact, every act of interpretation was “a moral and political choice” (Mensch 34). As legal critic Elizabeth Mensch notes, “after realism, American legal

118 theorists had, as it were, eaten of the tree of the knowledge and there could be no return to the naïve confidence of the past” (36).

5 Assumption of the risk is generally considered a controversial and confusing term because of contrary ways in which courts have interpreted the factors required to invoke this defense (Prosser 439). Even the careful analysis of Justice Bone gives the casual legal scholar the impression that he is taking this confusion to heart and carefully considering whether assumption of the risk is the correct standard to use in this case. It is not clear, however, that he judged this point correctly. Assumption of the risk includes difficult considerations such as whether or not plaintiff has given consent to relieve the defendant of liability for any harm that might occur or voluntarily enters a relationship knowing that defendant won’t protect plaintiff from harm, whether plaintiff’s action itself is “voluntary,” and whether plaintiff tacitly or impliedly consented a situation plaintiff knows to be dangerous (Prosser 440). In a relationship of pastor/member of congregation in a religion seen as relatively conservative, it is unclear whether these aspects are sufficiently considered.

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