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1
i

Digital Justice
ii
iii

Digital Justice
Technology and the Internet of Disputes

E T H A N K AT S H

O R N A R A B I N O V I C H -​E I N Y

Foreword by
R i c h a rd S u s s k i n d

1
Digital Justice. Ethan Katsh and Orna Rabinovich-​Einy.
© Ethan Katsh and Orna Rabinovich-Einy 2017. Published 2017 by Oxford University Press.
iv

1
Oxford University Press is a department of the University of Oxford. It furthers the University’s objective
of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered
trademark of Oxford University Press in the UK and certain other countries.

Published in the United States of America by Oxford University Press

198 Madison Avenue, New York, NY 10016, United States of America.

© Ethan Katsh and Orna Rabinovich-Einy 2017

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or
transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press,
or as expressly permitted by law, by license, or under terms agreed with the appropriate reproduction rights
organization. Inquiries concerning reproduction outside the scope of the above should be sent to the Rights
Department, Oxford University Press, at the address above.

You must not circulate this work in any other form

and you must impose this same condition on any acquirer.

Library of Congress Cataloging-​in-​Publication Data

Names: Katsh, M. Ethan, author. | Rabinovich-Einy, Orna, author.
Title: Digital justice : technology and the internet of disputes / Ethan Katsh and
Orna Rabinovich-Einy ; foreword by Richard Susskind.
Description: New York : Oxford University Press, 2017. | Includes bibliographical
references and index.
Identifiers: LCCN 2016051090 | ISBN 9780190464585 ((hardback) : alk. paper) |
ISBN 9780190675677 ((pbk.) : alk. paper)
Subjects: LCSH: Law—Data processing. | Information technology—Law and
legislation. | Technology and law. | Internet—Law and legislation. |
Computer networks—Law and legislation. | Torts.
Classification: LCC K564.C6 .K38 2017 | DDC 347/.0902854678—dc23 LC record available at
https://lccn.loc.gov/2016051090

9 8 7 6 5 4 3 2 1

Paperback printed by WebCom, Inc., Canada

Hardback printed by Bridgeport National Bindery, Inc., United States of America

Note to Readers
This publication is designed to provide accurate and authoritative information in regard to the subject matter
covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the
time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal,
accounting, or other professional services. If legal advice or other expert assistance is required, the services
of a competent professional person should be sought. Also, to confirm that the information has not been
affected or changed by recent developments, traditional legal research techniques should be used, including
checking primary sources where appropriate.

(Based on the Declaration of Principles jointly adopted by a Committee of the

American Bar Association and a Committee of Publishers and Associations.)

You may order this or any other Oxford University Press publication
by visiting the Oxford University Press website at www.oup.com.
v

To Bev

To my parents, Efrat and Itamar Rabinovich

vi
vii

CONTENTS

Acknowledgments xi
Foreword by Richard Susskind xiii

Introduction 1

“CO N F L I CT A S A G R O W T H I N D U ST RY ”: H O W M A N Y D I S P U T E S
ARE THERE? 4

What Is New? 6
The Growth of Online Disputes 8
Proliferation of Disputes in the 1990s 10
The Blurring of Online-​Offline Boundaries 11

W H Y T R A D I T I O N A L D I S P U T E R E S O LU T I O N D O E S N ’ T W O R K F O R
T H E D I G I TA L E R A 14

ONLINE DISPUTE PREVENTION 17

PA RT I ■  ONLINE DISPUTE RESOLUTION AND ACCESS

TO JUSTICE

CHAPTER 1. Online Dispute Resolution and Prevention:

A Historical Overview 25
T H E H I STO RY O F O N L I N E D I S P U T E S 25

The Early Years 25

More Users, More Disputes 29

T H E E VO LU T I O N O F T H E F I E L D O F O D R : F R O M “O N L I N E A D R”
TO O D R 33

From Tools to Systems 34

ODR Systems Design: The Dispute Resolution and Prevention
Triangle 37
viii

viii   Contents

CHAPTER 2. Access to Digital Justice 39

ACCE S S TO J U ST I CE I N T H E P R E-​D I G I TA L E R A 40

T H E T H R E E WAV E S O F T H E ACCE S S TO J U ST I CE M OV E M E N T 42

I M P R OV I N G ACCE S S TO J U ST I CE T H R O U G H O D R 45

O N L I N E D I S P U T E R E S O LU T I O N 46

ONLINE DISPUTE PREVENTION 51

PA RT I I ■  BETWEEN DIGITAL INJUSTICE AND DIGITAL

JUSTICE

CHAPTER 3. E-​commerce and the Internet of Money 57

T H E O R I G I N S O F E- ​C O M M E R CE D I S P U T E S 58

Resolving Disputes 62
Preventing Disputes 66
Another Story and Lesson 75

CO N CLU S I O N 79

CHAPTER 4. The Internet of On-​Demand Healthcare 81

G E N E R AT I N G D I S P U T E S 82

R E S O LV I N G D I S P U T E S 97

PREVENTION OF MEDICAL ERROR S AND PREVENTION OF

CO N F L I CT 103

CO N CLU S I O N 107

CHAPTER 5. The Challenge of Social and Anti-​Social Media 109

I N T R O D U CT I O N 110

CO N F L I CT A S A G R O W T H I N D U ST RY 113

D I S P U T E R E S O LU T I O N A S A G R O W T H I N D U ST RY 116

CO N F L I CT P R E V E N T I O N 125

CO N CLU S I O N 130

CHAPTER 6. Labor and the Network of Work 131

T ECH N O L O G Y A N D T H E N E W W O R K P L ACE 133

G E N E R AT I O N O F D I G I TA L D I S P U T E S I N T H E N E W W O R K P L ACE 136

D I S P U T E R E S O LU T I O N I N T H E D I G I TA L W O R K P L ACE 139

D I S P U T E P R E V E N T I O N I N T H E D I G I TA L W O R K P L ACE 146

CO N CLU S I O N 148
╇ ix

Contentsâ•…â•…ix

CHAPTER 7.╇ODR in Courts and Other Public Institutions╅ 149

G E N E R AT I N G D I S P U T E S : N E W E X P ECTAT I O N S BY CI T I Z E N S,
N E W O B L I G AT I O N S O F P U B L I C I N ST I T U T I O N S â•… 150
D I S P U T E R E S O LU T I O N BY P U B L I C I N ST I T U T I O N S : A F O CU S O N
CO U RTS â•… 154

Technology as Case Managementâ•… 155

E-╉government and Use of Technology by Courts╅ 156
Technology as a Means for Transforming “Access to Justice”â•… 156

O N L I N E D I S P U T E R E S O LU T I O N I N CO U RTS â•… 158

Early ODR Initiativesâ•… 158
Recent ODR Initiativesâ•… 159
D I S P U T E P R E V E N T I O N BY CO U RTS A N D P U B L I C
I N ST I T U T I O N S â•… 165

CO N CLU S I O N â•… 167

Conclusion: The Present and Future of Digital Justice and the

“Moving Frontier of Injustice”â•… 171
L O O K I N G F O RWA R D â•… 171
T H E R O L E O F L AW A N D CO U RTS â•… 174
A D D R E S S I N G T H E D I G I TA L J U ST I CE G A P â•… 177

Notesâ•… 181
Bibliographyâ•… 219
Indexâ•… 237
x
xi

ACKNOWLEDGMENTS

We are most grateful to the community of international Fellows of the National

Center for Technology and Dispute Resolution (NCTDR), whose in-​person
and online conversations have contributed greatly to many of the ideas put for-
ward in this book. They include Jeffrey Aresty (United States), David Bilinsky
(Canada), Pablo Cortés (Great Britain), Benjamin Davis (United States), Dave
deBronkart (United States), Alberto Elisavetsky (Argentina), Frank Fowlie
(Canada), Sanjana Hattutowa (Sri Lanka), Ayo Kusamotu (Nigeria), David
Larson (United States), Anyu (Andy) Lee (China), Zbynek Loebl (Czech
Republic), Ian Macduff (New Zealand), Chittu Nagarajan (India), Ijeoma
Ononogbu (Nigeria/​Great Britain), Chris Peterson (United States), Daniel
Rainey (United States), Vikki Rogers (United States), Fernando Esteban de
la Rosa (Spain) Graham Ross (Great Britain), Colin Rule (United States),
Irene Sigismondi (Italy), Gabriela Szlak (Latin America), Jin Ho Verdonschot
(Netherlands), Aura Esther Vilalta (Spain), Mohamed S. Abdel Wahab (Egypt),
and, most important, Co-​director Leah Wing.
We are particularly thankful to those who read the whole manuscript or one or
more chapters. These include Sagit Mor, Niva Elkin-​Koren, Faina Milman-​Sivan,
Tal Zarsky, Arianne Renan-​Barzilay, Yair Sagy, Talia Fisher, Michael Birnhack,
Assaf Jacob, Itai Brun, and Chris Peterson. We received feedback from attend-
ees at the Colloquium on Law, Society & Technology at the Haifa Law Faculty,
the Law and Information Technology Workshop at the Tel Aviv University
Law Faculty, the Works in Progress in ADR conference hosted at Cardozo Law
School, and presentations made at the International Online Dispute Resolution
conferences hosted at The Hague Institute for Innovations in Law (HiiL), the
University of International Business and Economics in Beijing, and Hastings,
Stanford, Pace, and University of Montreal Law Schools. Many thanks to the
following who granted us the opportunity for interviews: Shannon Salter and
Darin Thompson, Maurits Barendrecht, J. J. Prescott, M.J. Cartwright, Colin
xii

xii   Acknowledgments

Rule, and Zbynek Loebl; and for ongoing advice from Carrie Menkel-​Meadow,
Nancy Welsh, Michal Alberstein and Moti Mironi, all of whose input was signif-
icant in the development of our thinking on novel justice systems.
Our research efforts have benefited from assistance provided by Daniel
Rainey and Harry Hoglander of the National Mediation Board, Jeff Aresty of
the Internet Bar Organization and Peacetones, Prashila Dullabh of NORC,
Jodi Daniels and her colleagues at the Office of National Coordinator of the
U.S. Department of Health and Human Services, Norm Sondheimer, Lee
Osterweil and Lori Grant, our colleagues at the University of Massachusetts
on several National Science Foundation grants, opportunities provided by the
Fulbright Program and the United States–​Israel Educational Foundation, and
the universities of Haifa and Massachusetts. We appreciate our association with
Karim Benyekhlef, Fabien Gélinas, and the University of Montreal Law School
Cyberjustice Project, the opportunity to observe firsthand the ODR inter-
net start-​ups Modria, Youstice, and SquareTrade, and the HiiL Rechtwijzer and
British Columbia Civil Resolution Tribunal projects. We are most grateful to the
faculty, fellows, and staff of the Berkman Klein Center for Internet and Society at
Harvard University for a year spent as a Research Affiliate in 2014–​2015.
Special gratitude to Nico Pfund, Alex Flach and Alden Domizio at Oxford
University Press for their support and encouragement and to Irene Natan, Justin
Rostoff, Hanne Tidman-​Winarsky, and Rachel Ran for the research and editorial
assistance they provided. Our gratitude to Richard Susskind for his intellectual
support as well as for contributing the Foreward to this book. Lastly, our appre-
ciation of our families, Beverly, Rebecca, Gabriel, Gideon, Jordan, Abby, Sarah,
and Ari and Uri, Ella, Roy, Ido, and Iris for inspiring us.
xiii

FOREWORD

Modern court systems in both civil and common law jurisdictions can be traced
directly to bodies that came into being roughly one thousand years ago. While
much has changed in the intervening millennium, many of today’s court pro-
cesses and sometimes even the buildings themselves have not been altered
greatly since the nineteenth century.
It is an uncomfortable truth that court systems around the world are creak-
ing—they are too costly and slow, and they are unintelligible for the great
majority of non-lawyers. More, these paper-based institutions appear increas-
ingly outmoded in a society in which so much daily activity is enabled by the
internet and advanced technology. Conceived in the Dark Ages and reformed
in the nineteenth century, these court systems became unfit for many purposes
in the late twentieth century. Now they seem destined, if unchanged, to be inap-
propriate for most disputes of the twenty-first. While it was seditious to make
such allegations in the 1980s, many policymakers, judges, and lawyers around
the world are now alive to the shortcomings of our courts. And there seems to
be a growing worldwide appetite for comprehensive overhaul.
There have, of course, been calls for reform in the past. For decades now, sup-
porters of ADR (alternative dispute resolution) have promoted non-court-based
methods for resolving disputes, such as mediation, conciliation, and early neu-
tral evaluation. But ADR has delivered mixed results and its long-term impact
looks unlikely to be fundamental. In contrast, those who advocate ODR (online
dispute resolution) look set to have greater traction. Indeed, there are signs that
work in this field will reshape tomorrow’s court systems.
It is timely, therefore, that Digital Justice, by Ethan Katsh and Orna
Rabinovich-Einy, now appears on our shelves and tablets. The authors are ide-
ally placed to have taken on the job of writing what is an accessible and yet defin-
itive account of ODR. Ethan is an all-time star in the world of academic legal
technology, and an undoubted pioneer in ODR. In joining forces with Orna, an
xiv

xiv   Foreword

authority on both ADR and ODR, they make a formidable team. They are also
mensches—it is gratifying when nice people produce outstanding books.
In the words of the authors, the book shows “not only how technology
generates disputes of all types—some serious, some just annoying—but how
technology can be employed to resolve and prevent them.” The first part of the
book focuses on the history and development of online dispute resolution (it is
remarkable, as they observe, that the first ODR conference was held as long ago
as 1996), while the second highlights five areas that are argued to be in particu-
lar need of ODR—e-commerce, healthcare, social media, employment, and the
courts. They conclude that online dispute resolution and prevention activities
can be extended to enhance access to justice, both online and offline.
Crucial insights are peppered across the pages. The authors show, for exam-
ple, why traditional dispute resolution and ADR do not work in the digital era.
They place great emphasis on processes that help prevent disputes as well as
resolve them. They note that disputes arise in 3–5 percent of online transactions,
totaling over seven hundred million e-commerce disputes in 2015 alone. They
anticipate a future in which increasingly capable machines will use large bodies
of data to enable or suggest solutions to parties and, more distantly, when human
intervention in disputes will be substituted by algorithms.
Digital Justice comes to us at a pivotal moment in the evolution of court sys-
tems. Not long ago, ODR was the preoccupation of but a small group of vision-
aries and academics. In many countries, debate about online courts is suddenly
in the mainstream. For England and Wales, to take one example, the U.K. gov-
ernment has recently confirmed that the modernization and digitization of our
courts will be financially supported to the tune of more than £700 million. Much
of this investment is to be in online courts. And the senior judiciary is highly
supportive.
Nonetheless, in the broader context of the history of law, the spirit of ODR
remains bold. Judges without courtrooms, justice without lawyers, court as a
service and not a place—these are radical aspirations. It is no surprise, then, that
ODR has its detractors. Tellingly, many of the naysayers are lawyers who raise
objections in the name of justice and in the interests of their clients. ODR, it is
claimed, will deliver a second-class form of justice for those of limited means;
it will not provide a fair trial; it will alienate the digitally deprived; it is driven
by an unhealthy preoccupation with cost reduction; and it is really an attempt
to exclude lawyers. These are important challenges, but they are advanced too
often by lawyers who have not taken the time to road test the technology and
study its actual impact so far. All critics should read this book. Many of their
understandable fears will be allayed.
Meanwhile, we should be wary of wholesale rejection of ODR. Claims of
inaccess to justice, it transpires, are often smoke screens for self-preservation
xv

Foreword  xv

on the part of lawyers (consciously or unconsciously). Nostalgically, they han-

ker after the Rolls Royce service that today’s finest court systems can doubtless
deliver. But that is a service that is now affordable only for a very few, and every-
one else is left to walk. We need an accessible and reasonably priced system for
all, and I have found a no more promising option for that future than that offered
by various types of ODR. Lawyers should surely be the pioneers in upgrading
justice rather than standing in the way of processes that, as Ethan and Orna so
compellingly show, are great improvements on what we have today.
I wish this work the very great success that it deserves.

Professor Richard Susskind

President, Society for Computers and Law
IT Adviser to the Lord Chief Justice of England and Wales
xvi
12

12   Digital Justice

the perils of cyberspace by, essentially, not entering it. In recent years, living
offline entirely without either a data presence or an online identity has become
less of a realistic option. The distinction that used to be made between the “vir-
tual world” and the “real world” is losing meaning—​and not just because it is
increasingly necessary to have internet access in order to participate in all kinds
of personal and business activities. Internet service providers, once the means
of access to develop a digital persona, are now only one of many entry points to
cyberspace. One simply cannot prevent data about oneself from migrating into
cyberspace. This occurs whenever a card is swiped to make a purchase; a phone
is turned on and used to make a call; a movie is streamed; a Smart Grid51 device
sends data about electrical usage in the home to the local utility; a picture is
posted on Facebook; or when just about anything with a barcode or some other
similar code is bought or sold.
Machines are constantly sending information about us to other machines
whether or not we have intentionally placed this information in cyberspace, and
this will only continue to grow at a belief-​defying rate. In what is now called the
“Internet of Things,”

more and more inanimate objects start to develop data and intelligence
as they connect to each other, [and] a network of autonomous inter-
actions will emerge. In the future, our devices will be able to manage,
analyze, report, predict, forecast, and more—​while humans experience
their days more intelligently and efficiently. We are experiencing a shift
from a world of inanimate objects and reactive devices to a world where
data, intelligence, and computing power are distributed, ubiquitous,
and networked. We’re seeing a variety of market forces—​from sensor,
data capture, and a computing processor—​empower this world for con-
sumers and organizations alike. Who will deliver the content for and
based on these interactions? Who will manage the data that arises?52

And how, one might ask, will we manage the disputes that arise out of what will
also be labeled the “Internet of Disputes”?53
In the not at all distant future, there will be very few activities—​perhaps none—​
that can be thought of as occurring purely offline. Sensors with communications
capabilities and data capture opportunities can be added to almost any object or
activity. Even animals aren’t off limits: in one recent experiment, cows transmitted
data to their owners about when they were in heat.54 We can even expect to see
our clothing, which we currently think of as quite passive, start sending messages
and collecting data about our health, our movement, and our activity, along with
Fitbits, watches, and all the other items we might wear. Simply entering a space is
often enough; walking through an airport generates an ocean of data about you
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But we dare not go hence till the labor appointed is done.

To each man is given a marble to carve for the wall,

A stone that is needed to heighten the beauty of all;
And only his soul has the magic to give it a grace,
And only his hands have the cunning to put it in place.

We are given one hour to parley and struggle with Fate,

Our wild hearts filled with the dream, our brains with the high debate.
It is given to look on life once, and once only to die:
One testing, and then at a sign we go out of this sky.

And the task that is given to each man no other can do;
So the work is awaiting: it has waited through ages for you.
And now you appear; and the Hushed Ones are turning their gaze
To see what you do with your chance in the chamber of days.

THE LAND OF HEART’S REGRET

W. T. P.
[This exquisite threnody was written by the “gardener poet” of
California, Samuel J. Alexander, of San Mateo. The local
geographical references will be understood only by those familiar
with the country, but the cry of the bereaved heart and life will find
immediate response from the universal heart. As a poem of deep,
tender emotion, its study and rendition orally will be more than well
repaid.]

Dawn on the hill tops flushes red

In the Day’s embrace, and her blush is spread
A benediction above the dead.
Dawn, and I stand again with Dawn
On the jeweled turf of Cypress Lawn.
Grief led my feet, by Reverence shod,
Into the presence of the God,
The gentle God, Who, compassionate,
Welcome’s Life’s Beggars within His gate.
So I went soft shod, with eyes grown dim,
Through His House Beautiful with Him.
And with hushed heart I sought and found
A Grave more dear than the graves around.

Did I think to find thee shut in and hid

In a man-made box, ’neath a man-made lid?
Thou, from the sunlight hidden away,
Who wert dew of the dawn and flame of day!
Thou fettered by Silence? Why, thy voice
Called up the Dawn and bade Day rejoice.
Thou circled by shadows? Why, thine eyes
Were forest pools beneath starry skies.
And Day might have claimed, to illume his crown,
Their starlight tangled in deeps of brown.
With what reluctance, and with what dread,
I, who loved thee living, have sought thee dead.
And all unwilling, my feet were drawn
By a will compelling that led them on.
I have come to seek thee; the way was long,
For the years between us rose high and strong.
I have come to seek thee, who held thee dear,
But I may not find thee, who art not here.

Life was a song; and sun and moon

Wove all color into the tune.
Life was a jewel; we laughed and pressed
The glowing ruby against our breast.
Life was a bubble; we tossed it high,
Up to the rainbow that spanned our sky.
Life was a magic mantle, wove
By fairy hands, in a charmèd grove,
Wherewith we wrapped ourselves around
In wide, free spaces, where God is found.
Life was a torrent, that overflowed
San Bruno’s mountains and Mission Road;
Canyons, gashed in a mountain wall,
With the wound healed over by chapparal;
Mist-clad hollows, and gusty plains,
Curbed by the wind with galling reins.
Colma, cradled green hills between;
Belmont, tossed upon waves of green;
Woodside mountains and Alma’s woods,
La Honda’s Altar of Solitudes;
World’s Edge hills, where the road goes down
In a tangle of curves to Spanishtown;
Ocean View and San Pedro beach,
These are the heart’s red throbs of speech.
These are the holy names that stand
Guide Posts of God into Holy Land.
And these are the Calvary Stations, set
On my way through The Land of Heart’s Regret.

Life no longer imperious calls

With a silver trumpet from golden walls.
My ears grow dull and my eyes grow dim,
He wearies of me, as I of him.
I will rise; I will go my ways and pass
From that I am unto that I was.
I will drug my senses and drown my soul
Where the incense clouds from the altar roll,
In the golden shrine, with the golden key,
Where dwells our Lady of Memory.
Though new grief grow with the old heart hurt,
Here shall I see thee as thou wert.
Still companion on lonely hill,
In forest solitude, comrade still.

And Memory led me by the hand

From God’s Field, back into Holy Land,
Lit by the wonderful afterglow
Of a day that withered long ago.
And the gum trees moved their lips and spoke
In the alien language of the oak.
And there grew up tall before my eyes
Pillared redwoods, that prop the skies.
And we stood again where the lilies stand,
Torches, lighting a twilight land;
Lamps of the forest, flashing red,
While the darkness gathered overhead.
For, robed in her purple, the Night came down,
Weaving the starlight into her gown;
And the moon arose, like a bubble, blown
By the children playing about Christ’s Throne;
And the iridescent gem was set
As an opal in her coronet.
And our souls flashed up above the night,
And clung together and made one light.
And the brook swept by, and as it went
Sang us the song of heart’s content.
And our campfire set its smoke unfurled
A flag on the roof of the fair, green world.
Now, La Honda’s sacred solitudes
Vainly call me from hills and woods;
These for me shall remain untrod,
Sacred to Memory and to God.
But these and thee I shall not forget
Till Grief wed Joy and divorce Regret.
And by all that was and by all that is,
And for all that we were, I ask thee this,
Friend of my Past, grow not too high,
That I may reach unto thee, even I,
When, with eyes grown clearer, I see thine eyes
As the Dawn of Remembered Days arise,
Or as Stars of Home, in the alien skies.

VENGEANCE IS THINE
By S. J. Alexander

Vengeance is Mine, saith the Lord;

But there cometh the Hour and the Man,
And the tangled red knots of His Plan
Cry out for the Hand on His Sword.

And these are the Words that He saith,

And the Will of the Words of His Mouth,
To the men of His Lands of the South
In the Halls of His City of Death:

“I am slow to repay,” saith the Lord:

“My Patience and Mercy endure;
But the day of My Vengeance is sure,
And This is My Will and My Word:

“Ye shall draw My Sword out from its sheath;

Ye shall strike at the bosom of Guilt;
Ye shall stab the red blade to its hilt
In the black heart that lieth beneath.

“With My Name on your lips ye shall draw;

And the Name which your lips may not speak
Ye shall bear in your soul, as ye wreak
The ultimate end of My Law.

“My Anger encompassed them still

When they took the Black Vow, nothing loath;
My Oath rose up over their oath,
And broke it and bent to My Will.

“I have waited, withheld and withstood,

But I weary of all,” saith the Lord,
“And the Cup of My Anger, long stored,
Ye shall spill on the Spillers of Blood.”

TO A FEBRUARY BUTTERFLY
By S. J. Alexander
Rainbow that flasheth by,
Flower that flieth,
Sunshine from summer sky,
Jewel that dieth;

Winter still lingers near,

Ruthlessly cruel,
Why hast thou entered here,
Flower and jewel?

Out of what tropic sky,

Camest thou, gleaming,
Thrilled with a purpose high,
Psyche-like dreaming?

Now, in thy poverty

Dost thou inherit
Orchids of memory,
Palms of the spirit.

Wings of the butterfly,

Soul of the Poet,
Drenched from a dripping sky,
Scorned from below it;

Broke on Fate’s torture wheel,

Shattered asunder,
We, who are wingèd, feel
God’s lightest thunder.

Soul of the butterfly,

Bravely wayfaring,
Teach me, that even I
Reach to thy daring.

Now with our wings unfurled

Go we together
Out of this sodden world,
 Into fair weather.

THE GOD’S CUP

By S. J. Alexander

The Sun God gave his radiant Gift

In a clay cup, whose flaw and rift
With many a blur and many a stain
Cried out to him, and cried in vain,
For a fair vase of porcelain.
Men looked at it before they quaffed
The God’s wine in its depths, and laughed.
“The thing’s old-fashioned, quite antique,”
—The cup, in truth, was Attic Greek—
“A cup, one could not say a vase,
Made for base uses of the base.”
But if they pressed their lips to drink,
All heaven trembled on the brink
Like molten jewels, welling up
From the deep measure of the cup;
And in the glamor of the spell
God’s Silence became audible;
The soundless music of the spheres
Rang through the ringing in their ears.
They heard the hum of Attic bees
Upon Hymettus; and the seas
Rose up, white lipped, with dripping hair
To teach the secret of Despair;
Yet more. Their ravished vision saw
All Glory flash above the flaw
That men esteem as Nature’s law;
While Fancy, wiser, sees the Fates
Sit spinning at the Ivory Gates,
From whence Divine Illusion gives
The evanescent gift that lives.
So, swept on swelling waves of sound,
In seas of rapturous music drowned,
So, tossed from height to upper height
Of the God’s mountain peaks of light,
With trembling lip and gasping breath
They drank His Radiant Life and Death;
And deemed a jewel half divine
The cup that held the Sacred Wine.
The wine, in its too potent strength,
Ate through the fragile clay at length;
The cup fell broken to the ground;
The God laughed at the ruin ’round;
His wine was spilt on every side,
And men, men said, “The Poet Died.”

THE SONG OF THE BULLETS

By John Milton Scott

I cut the air and it sang to me

Like a serpent’s hiss with its fangèd kiss,
And the leaping leagues upsprang to me;
But I passed them all with the battle’s call,
As with maddening joy I scream, I screamed
The death which the wrathful warrior dreamed.
The mad red death which the warrior dreamed.

I sing! sing! sing! the wrathful warrior’s song.

Then ping! ping! ping! ’tis the wrathful warrior’s wrong.

I red in the heart of the foe,

Fulfilling the warrior’s woe.
But this I see before I go—
A beauty blackening battle’s show;
Pictures of home in heart and brain
That blot and blank in my war’s refrain.
Home among vines and green fields,
Cattle and horses and sheep,
Husband and wife in the joy of their life,
Children that play, children that pray,
On the bosom a babe and its lullabied sleep.

Sleep! sleep! sleep! my baby, sleep!

Christ is the shepherd of His sheep
And lambs like you to His heart he folds,
And safely holds, all safely holds.
Till the dark night dies in the arms of day,
When He kisses my lamb awake to play.
Sleep! sleep! sleep! my baby, sleep.

’Neath a Belgian sky sang this lullaby.

But why; why do the children cry,

As the husband true bids a brave good-by?
O why do the children and women weep
As the war-woes over their gladness creep?

O this red! red! red!

O this blood I have shed
When from rifles of warriors I leap;
And the pictures grow dim, and the pictures grow blank,
But the weeds on this field will grow poison and rank.
Siep! siep! siep!
The blood runs apace, and gone is the face
Of baby and wife,
Of love and of life
Siep! siep! siep!
When from rifles of warriors I leap.

This, this is why sweet children cry

And wives and mothers vainly weep.

II
I tear the air, and its fine silk rips
As my kill-song sings from the rifle’s lips,
I destroy air-joy which the glad birds sing
When in love and life the winds they wing;
Theirs is a song of love and life!
Mine is a snarl of hate and strife!
The mad red snarl of hate and strife.

I sing! sing! sing! the wrathful warrior’s song.

Then ping! ping! ping! ’tis the wrathful warrior’s wrong.

I red in the heart of the foe,

Fulfilling the warrior’s woe.
But this I see before I go—
A beauty blackening battle’s show;
Pictures of home in heart and brain
That blot and blank in my war’s refrain.

A school, a teacher and pupils bright,

Lessons and laughter and play,
Girls and boys in their school-day joys,
Maid and youth in their search for truth;
Then home in the shades of the rounded day.

Sleep! sleep! sleep! my baby, sleep!

Christ is the shepherd of His sheep,
And lambs like you to His heart he folds,
And safely holds, all safely holds,
Till the dark night dies in the arms of day,
When He kisses my lamb awake to play.
Sleep! sleep! sleep! my baby, sleep.

In the German tongue this sleep-song sung.

But why; why do the children cry,

As the husband true bids a brave good-by?
O why do the women and children weep
As the war-woes over their gladness creep?
 O this red! red! red!
O this blood I have shed
When from rifles of warriors I leap;
And the pictures grow dim, and the pictures grow blank,
But the weeds on this field will grow poison and rank.
Siep! siep! siep!
The blood runs apace, and gone is the face
Of baby and wife,
Of love and of life.
Siep! siep! siep!
When from rifles of warriors I leap.

This, this is why sweet children cry

And wives and mothers vainly weep.

III

I murder the peace of summer winds;

I startle the kine and make dogs whine;
I’m the fury of fight, I’m hell’s delight;
I’m the black of death with its stiffening breath;
I’m insanity’s shriek as I try to speak;
I am agony’s glare and its wild despair;
I’m the hiss elate of the warrior’s hate,
The mad, red hiss of the warrior’s hate.

I sing! sing! sing! the wrathful warrior’s song.

Then ping! ping! ping! ’tis the wrathful warrior’s wrong.

I red in the heart of the foe,

Fulfilling the warrior’s woe.
But this I see before I go—
A beauty blackening battle’s show;
Pictures of home in heart and brain
That blot and blank in my war’s refrain.

A hammer and anvil and lowly cot,

Blossoms ashine and the fruitful vine,
The flying of sparks, the singing of larks
And the rapturing stir of the voice of her,
Outsinging the larks in her joys divine.

Sleep! sleep! sleep! my baby, sleep!

Christ is the shepherd of His sheep,
And lambs like you to His heart he folds,
And safely holds, all safely holds,
Till the dark night dies in the arms of day,
When He kisses my lamb awake to play.
Sleep! sleep! sleep! my baby, sleep.

In joy-hearted France sings this love’s romance.

But why; why do the children cry,

As the husband true bids a brave good-by?
O why do the children and women weep
As the war-woes over their gladness creep?

O this red! red! red!

O this blood I have shed
When from rifles of warriors I leap;
And the pictures grow dim, and the pictures grow blank,
But the weeds on this field will grow poison and rank.
Siep! siep! siep!
The blood runs apace, and gone is the face
Of baby and wife,
Of love and of life.
Siep! siep! siep!
When from rifles of warriors I leap.

This, this is why sweet children cry.

And wives and mothers vainly weep.

IV

I am rifle-sent, and the air is rent

In tatters and rags and stains;
I burn my path of the warrior’s wrath
Too hot to be cooled by rains;
I murder the song of the rapturing thrush
As I chant war’s wrath with its ripping rush.
The mad red wrath with its ripping rush.
His is a song of love and life,
Mine is a screech of hate and strife.

I sing! sing! sing! the wrathful warrior’s song.

Then ping! ping! ping! ’tis the wrathful warrior’s wrong.

I red in the heart of the foe,

Fulfilling the warrior’s woe.
But this I see before I go—
A beauty blackening battle’s show;
Pictures of home in heart and brain
That blot and blank in my war’s refrain.

A meadow alined by English lanes;

And Shelley’s lark is in the sky,
And Shakespeare’s sheep, in clover deep;
A house by the spring and a grapevine swing,
A mother’s song and a babe’s reply.

Sleep! sleep! sleep! my baby, sleep!

Christ is the shepherd of His sheep,
And lambs like you to His heart he folds,
And safely holds, all safely holds,
Till the dark night dies in the arms of day,
When He kisses my lamb awake to play.
Sleep! sleep! sleep! my baby, sleep.

Child hearts rejoice in this English voice.

But why; why do the children cry,

As the husband true bids a brave good-by?
O why do the children and women weep
As the war-woes over their gladness creep?
 O this red! red! red!
O this blood I have shed
When from rifles of warriors I leap;
And the pictures grow dim, and the pictures grow blank,
But the weeds on this field will grow poison and rank.
Siep! siep! siep!
The blood runs apace, and gone is the face
Of baby and wife,
Of love and of life.
Siep! siep! siep!
When from rifles of warriors I leap.

This, this is why sweet children cry

And wives and mothers vainly weep.

I’m a blighting swift, outflying storms,

I ruin and run as I shriek my fun;
With a screech of fear in the startled ear,
I crush the hope and distill the tear,
The tear of love, the hope of hearts;
I blight and blast with Destruction’s arts.
With the mad, red blight of Destruction’s arts.

I sing! sing! sing! the wrathful warrior’s song.

Then ping! ping! ping! ’tis the wrathful warrior’s wrong.

I red in the heart of the foe,

Fulfilling the warrior’s woe.
But this I see before I go—
A beauty blackening battle’s show;
Pictures of home in the heart and brain
That blot and blank in my war’s refrain.

The Danube blue, the Alsatian heights,

And a lover who sings to his maiden true,
The song and the kiss, the troth and its bliss,
Two hearts abeat in the love complete,
And the brown eyes marry the eyes of blue.

Sleep! sleep! sleep! my baby, sleep!

Christ is the shepherd of His sheep,
And lambs like you to His heart he folds,
And safely holds, all safely holds,
Till the dark night dies in the arms of day,
When He kisses my lamb awake to play.
Sleep! sleep! sleep! my baby, sleep.

An Austrian sings these rapturings.

But why; why do the children cry,

As the husband true bids a brave good-by?
O why do the children and women weep
As the war-woes over their gladness creep?

O this red! red! red!

O this blood I have shed
When from rifles of warriors I leap;
And the pictures grow dim, and the pictures grow blank,
But the weeds on this field will grow poison and rank.
Siep! siep! siep!
The blood runs apace, and gone is the face
Of baby and wife,
Of love and of life.
Siep! siep! siep!
When from rifles of warriors I leap.

This, this is why sweet children cry

And wives and mothers vainly weep.

VI

I cut the air with growls of wrath;

I am black woe’s bite as I bark and fight,
I’m the mad dog’s fang, and I lead the gang
As we wolf together on war’s red path;
We rend the flesh, and we wreck the mind;
We’re the war-wrath’s lust, and we’re wild and blind,—
The red wrath’s lust that is wild and blind.

I sing! sing! sing! the wrathful warrior’s song.

Then ping! ping! ping! ’tis the wrathful warrior’s wrong.

I red in the heart of the foe,

Fulfilling the warrior’s woe.
But this I see before I go—
A beauty blackening battle’s show;
Pictures of home in heart and brain
That blot and blank in my war’s refrain.

A bearded peasant and Tolstoy’s book,

Fulfilling the Christ’s great way of peace,
His neighbors, dear as the ripened year;
’Twas a neighbor’s girl with laugh and curl
Who mothered his flock of the sweet increase.

Sleep! sleep! sleep! my baby, sleep!

Christ is the shepherd of His sheep,
And lambs like you to His heart he folds,
And safely holds, all safely holds,
Till the dark night dies in the arms of day,
When He kisses my lamb awake to play.
Sleep! sleep! sleep! my baby, sleep.

Like a Russian dove croons this song of love.

But why; why do the children cry,

As the husband true bids a brave good-by?
O why do the children and women weep
As the war-woes over their gladness creep?

O this red! red! red!

O this blood I have shed
When from rifles of warriors I leap;
And the pictures grow dim, and the pictures grow blank,
But the weeds on this field will grow poison and rank.
Siep! siep! siep!
The blood runs apace, and gone is the face
Of baby and wife.
Of love and of life.
Siep! siep! siep!
When from rifles of warriors I leap.

This, this is why sweet children cry

And wives and mothers vainly weep.

VII

’Twas wild wrath-riot, ’twas riot of death,

This bacchanal black making war’s red wrack,
This blood debauch and delirium,
Love’s hand palsied, truth’s tongue dumb,—
Blotting brave brains of mothers’ refrains,
Voices of children, enchantments of home,
The-Cathedral-of-man’s earth-rounding dome
Which visioning together might well have wrought,
Out of the heart of brothering thought.

And now that our screaming wrath is done,

And our place in the sky is filled with birds
Whose songs seem the voice of the gracious sun,
Behind us the wrath and the ruin left,
We are bruised and broken in fields bereft
Of their gentle flocks and peaceful herds;
We know, we know in our black war-woe,
There’s not a grace of gain for it all,
There’s not a spear of grain from it all.

O woe are we in this rusted red,

And woe the hearts which we’ve pierced and bled;
No honor is here, no glory bright,
But shame that is deeper than speech can tell,
But shame that is blacker than pits of hell,
The shame of a night unblessed by light,
The shame of a brain with its murder stain,
And a heart in the grime of war’s red crime.

Woe! woe! woe, is the end of the path

That blackens and blights from war’s red wrath.
This, this is why sweet children cry
And wives and mothers vainly weep—
As the war-woes over their gladness creep.

—Copyright, 1914, by John Milton Scott, and used by the author’s

kind permission.
 CHAPTER XII
IMPERSONATION

By “impersonation” we mean the art of assuming for the time being

the rôle of some character in a story or a play. We “play the part,” we
assume the carriage, the gestures, the quality of voice belonging to
the character.
How do we acquire this art? First: We study the part carefully till
we are sure we understand it. Second: We visualize the scenes, and
live them over again in our own imagination. Third: We begin to
speak the lines. We try different inflections, different gestures which
suggest themselves to us through our own experiences and our
observation of characters in real life which are similar to those of the
character we are depicting. This careful observation of the
mannerisms and eccentricities of real people aids very materially in
interpretation. Finally: We decide on the gestures and inflections
which seem to us to most nearly interpret the part, and these we
practice over and over again until they become a part of our very
being, then we are ready to “play the part.”

PRACTICE SELECTION

Merchant of Venice
Enter old Gobbo, with a basket.
Gobbo.—Master young man, you, I pray you, which is the way to
master Jew’s?
Launcelot (Aside).—O heavens, this my true-begotten father! who,
being more than sand-blind, high-gravel-blind, knows me not: I will
try confusions with him.
Gobbo.—Master young gentleman, I pray you, which is the way to
master Jew’s?
 Launcelot.—Turn up on your right hand at the next turning, but, at
the next turning of all, on your left; marry, at the very next turning,
turn of no hand, but turn down indirectly to the Jew’s house.
Gobbo.—By God’s sonties, ’twill be a hard way to hit. Can you tell
me whether one Launcelot, that dwells with him, dwell with him or
no?
Launcelot.—Talk you of young Master Launcelot? (Aside.) Mark
me now; now will I raise the waters. Talk you of young Master
Launcelot?
Gobbo.—No Master, sir, but a poor man’s son: his father, though I
say’t, is an honest exceeding poor man, and, God be thank’d, well to
live.
Launcelot.—Well, let his father be what a will, we talk of young
Master Launcelot.
Gobbo.—Your worship’s friend, and Launcelot, sir.
Launcelot.—But, I pray you, ergo, old man, ergo, I beseech you,
talk you of young Master Launcelot?
Gobbo.—Of Launcelot, an’t please your mastership.
Launcelot.—Ergo, Master Launcelot. Talk not of Master Launcelot,
father; for the young gentleman—according to Fates, and Destinies,
and such odd saying, the Sisters Three, and such branches of
learning—is, indeed, deceas’d; or, as you would say in plain terms,
gone to heaven.
Gobbo.—Marry, God forbid! the boy was the very staff of my age,
my very prop.
Launcelot (Aside).—Do I look like a cudgel or a hovelpost, a staff
or a prop?—Do you know me, father?
Gobbo.—Alack the day, I know you not, young gentleman: but, I
pray you, tell me, is my boy—God rest his soul!—alive or dead?
Launcelot.—Do you not know me, father?
Gobbo.—Alack, sir, I am sand-blind; I know you not.