The Octopus and the literary canon of American legal education

Men — motes in the sunshine — perished, were shot down in the very noon of life, hearts were broken, little children started in life lamentably handicapped; young girls were brought to a life of shame; old women died in the heart of life for lack of food. In that little, isolated group of human insects, misery, death, and anguish spun like a wheel of fire.

But the Wheat Remained. Untouched, unassailable, undefiled, that mighty world-force, that nourisher of nations, wrapped in Nirvanic calm, indifferent to the human swarm, gigantic, resistless, moved onward in its appointed grooves. Through the welter of blood at the irrigation ditch, through the sham charity and shallow philanthropy of famine relief committees, the great harvest of Los Muertos rolled like a flood from the Sierras to the Himalayas to feed thousands of starving scarecrows on the barren plains of India.

Falseness dies; injustice and oppression in the end of everything fade and vanish away. Greed, cruelty, selfishness, and inhumanity are short-lived; the individual suffers, but the race goes on. Annixter dies, but in a far distant corner of the world a thousand lives are saved. The larger view always and through all shams, all wickednesses, discovers the Truth that will, in the end, prevail, and all things, surely, inevitably, resistlessly work together for good.

— Frank Norris, The Octopus (1901)

The Octopus

What is the literary canon of American legal education? What classic books can inform law students and lawyers about the values of our profession?

In the September 2007 issue of the Louisville Bar Association's Bar Briefs, I argued that the literary canon of American legal education should include Robert Penn Warren's All the King's Men. Warren's classic, I contended, helps prepare law students for the "the convulsion of the world," fully aware of the interconnected world and of the lawful responsibility of time.

Great GatsbyThis past weekend, Alabama law professor Al Brophy, in a guest stint at the Legal History Blog, and I both addressed the literary revival of F. Scott Fitzgerald's The Great Gatsby. I argued that Gatsby should inform contemporary immigration law and policy. Al Brophy treated the revival of Gatsby as a good occasion to ask an even broader question: "what other literature is out there waiting to be discovered, particularly what other literature is out there waiting to tell us something about jurisprudence[?]"

Al answered his own question by suggesting three nineteenth-century American works: Catharine Sedgwick's Clarence, James Fenimore Cooper's trilogy on the anti-rent movement, and Nathaniel Beverly Tucker's George Balcombe. For my part, I have nominated yet another candidate for inclusion in legal education's literary canon: Frank Norris, The Octopus (1901).

OctopusNorris wrote his "Story of California" as part one of an unfinished "Epic of Wheat." The Octopus was based on the Mussel Slough Tragedy of 1880, a bloody conflict between ranchers and the Southern Pacific Railroad. Farmers in the San Joaquin Valley had leased land from the railroad at $2.50 to $5 per acre, in the hope of eventually purchasing the land outright. When the railroad offered the land for sale at prices adjusted for improvements (made, for the most part, by the farmers themselves), fighting broke out.

I've used The Octopus in agricultural law and in regulated industries. The agricultural application should be self-explanatory. As for regulated industries, The Octopus provides (remarkably enough) what may be American literature's most complete description of classic cost-of-service ratemaking. I always told my students that a page of Norris was worth a volume of Chen: The Death of the Regulatory Compact: Adjusting Prices and Expectations in the Law of Regulated Industries, 67 Ohio State L.J. 1265 (2006).

I am curious to discover what books all of us in the UofL Law School community would enshrine in the literary canon of legal education. I hope to return to this subject soon here at The Cardinal Lawyer, ideally with a reading list suitable for use in a classroom or by a book club.