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July 8, 2006

The Next Novel

F
airly soon after In the Shadow of the Law was published, my editor started talking to me about the next novel. One of the things he was very interested in was a novel set in the Supreme Court. I felt uncomfortable with that idea because I didn't really see how I could write that kind of a book without people thinking that it was a roman a clef, and I wanted to avoid giving that impression out of respect for Justice Souter's privacy. (The Supreme Court clerkship aspects of In the Shadow of the Law are meant to be realistic in a generic sense, but whenever I had the opportunity to put in a detail about the Justice I tried to make it something that couldn't be construed as applying to Souter.) My editor's solution to this problem was to set the novel in the future, when everyone had retired. That struck me as an interesting idea, but a difficult one because then in addition to inventing nine new Justices, I would have to invent a new jurisprudence, because otherwise people might take the positions of my fictional Justices on contemporary issues and use them to map the fictional Court onto the real Court.

But then the obvious solution came to me--set the book in the past. This would avoid any confidentiality problems, and also give me the opportunity to pick an interesting case as a backdrop. After thinking about juicy Supreme Court cases for a while, I decided to use the Japanese Internment cases--Hirabayashi, Yasui, Korematsu, and Endo. I liked these for a couple of reasons. First, I thought they'd give an interesting opportunity to reflect on themes of contemporary relevance. And second, I thought they'd give a good context in which to explore how well-meaning people do regrettable things. One of the most interesting and enjoyable aspects of writing In the Shadow of the Law was trying to figure out how things looked from the bad guys' perspective--what their internal logic was like. The Japanese Internment cases, I figured, would give me a great set of characters to do that with, because many of the important figures--Hugo Black, Felix Frankfurter, Herbert Wechsler, Francis Biddle--are generally considered good guys in the larger narrative of American history. So exploring how they came to do the things they did is something I'm very much looking forward to. And the fact that this is my next fictional project is one of the reasons I'm so glad to be guest-blogging here on isthatlegal. I'm still in the early stages of my research, so any advice would be most welcome.

Posted by at July 8, 2006 5:01 PM

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Comments

Perhaps not enough time has passed for the effect you seek, as the Shadow of the Court's History is long. I saw a blog post recently [http://www.concurringopinions.com/archives/2006/06/green_on_hamdan_1.html] analyzing Justice Stevens opinon in Hamdan, pointing out that Stevens summarily dismissed the internment cases as discredited, thus vindicating the dissenting opinion of Justice Rutledge, for whom Stevens clerked 60 years ago.

Posted by: Bob VDV at July 9, 2006 10:07 PM

I wonder if you want to comment on your research and writing schedule for your fiction projects. Does it just get mixed in with your other articles and books or do you have a set time to work on these novels every day? Had you written any fiction besides the three "literary" novels before Shadow of the Law? How long do you think the research for the Japanese internment novel will take before you can start writing? How will you organize your research?

Posted by: DDS at July 10, 2006 10:50 AM

My research and writing for fiction doesn't follow any fixed schedule. Since I don't consider it academic work (and I'm pretty sure my school doesn't either) I do it in my free time, which is unpredictable in supply.

I'm still at a very early stage in the research--what I'm doing now is reading just about everything I can find on the context of the cases and the roles of the Justices and other lawyers I've identified as dramatis personae. I'm hoping that the structure of the story I want to tell will emerge out of this--I don't see it yet because a lot of what I want to talk about happens inside the Justice Department, and I'm not sure how to combine that with the Supreme Court.

Posted by: Kim at July 10, 2006 6:26 PM