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Twelve prose poems by Roger J. Traynor (with a nod to Charles Baudelaire).

The year 1869 brought something new to the world of literature: the prose poems of the French poet Charles Baudelaire, consisting of fifty pieces of very short prose he wrote during his last dozen years of life. They were published under the title Petits Poemes en Prose, two years after Baudelaire died at the age of forty-six. (1) Most weighed in at a page or two; a few were just single paragraphs.

A hundred years later, I discovered Baudelaire's prose poems as a teenager, shortly after publication of a then-new English translation. (2) According to the translator's introduction to that volume, Baudelaire used prose poetry as "a medium that enabled him to illustrate a moral insight as briefly and as vividly as possible," (3) for "it could make a point, without too much argument or elaboration, and it could render a poetic state of mind in images akin to Baudelaire's verse." (4) That description of Baudelaire's prose poems seemed just right to me.

A decade after first reading Baudelaire, I took a law school class taught by Roger J. Traynor. (5) Even then, fresh to the profession, I knew that Traynor was a great judge. Only recently, however, as I chanced upon one of his many law review articles and then undertook a journey through nearly all of them, have I come to realize that Traynor was also a great prose poet--a Charles Baudelaire of the law.

Would Traynor have been surprised by the comparison? I doubt it. Read this about judicial lawmaking, penned a year after he retired from the bench:
 Amid so much conflict, the fiction that a court does not
 make law is now about as hallowed as a decayed and fallen
 tree. True, a court does not make law on a massive scale, as
 legislatures do. Nonetheless it makes law on a limited basis
 whenever it enunciates a new rule, or reconstructs an old
 one in revisionist terms, or merely extends an old rule about
 some dobbin to a novel Pegasus. Unlike Moliere's
 bourgeois gentilhomme, who was astonished to learn that
 his customary language indeed made prose, a modern judge
 is quite aware that his customary language indeed makes
 law. (6)

And compare it to my favorite of Baudelaire's prose poems:

 A port is a delightful place of rest for a soul weary of life's
 battles. The vastness of the sky, the mobile architecture of
 the clouds, the changing colouration of the sea, the
 twinkling of the lights, are a prism marvellously fit to
 amuse the eyes without ever tiring them. The slender
 shapes of the ships with their complicated rigging, to which
 the surge lends harmonious oscillations, serve to sustain
 within the soul the taste for rhythm and beauty. Also, and
 above all, for the man who no longer possesses either
 curiosity or ambition, there is a kind of mysterious and
 aristocratic pleasure in contemplating, while lying on the
 belvedere or resting his elbows on the jetty-head, all these
 movements of men who are leaving and men who are
 returning, of those who still have the strength to will, the
 desire to travel or enrich themselves. (7)

Surely Traynor realized that his customary prose made literature as well as law. He could, like Baudelaire, succinctly illustrate a moral insight in images akin to verse. That's prose poetry, and we can see the poems in his prose if we but mine the gems and set them as the poetic jewels that they are: (8)


 Errors are the insects in the world of law, traveling through
 it in swarms, often unnoticed in their endless procession.
 Many are plainly harmless; some appear ominously
 harmful. Some, for all the benign appearance of their
 spindly traces, mark the way for a plague of followers that
 deplete trials of fairness. (9)

Justice is subverted when judges excuse unfairness as harmless error.

 The newspapers tell you well enough that this society of
 ours is changing. A new fiction has sprung up to record our
 visions of what lies beyond. We look out to space
 wondering what new tricks of reality science will play upon
 our vision. We have new machine slaves, docile monsters
 to help us break the barriers to unknown worlds. It is
 unsettling that they develop their own protistan cleverness
 to multiply our wants and our dissatisfactions.

 Technology is the speech du jour. Men huddle around their
 fires to speak of its wonders and to ask whether they have
 learned to live longer and more splendidly, the better to
 destroy one another. The question is basic. It is for the law
 to answer whether man, who has come so far in science, is
 ready for obligations that will make him something more
 than an animal that preys brutally or skillfully upon its own
 kind. (10)

Technological advances sometimes just make things worse.

 I know how grateful the courts are when they look to the
 scholar's work and find an illuminating insight--not merely
 a flat line of paper cutouts lacking that heimliche
 Perspective of which Durer wrote--but an imaginative
 synthesis of the motley precedents that endlessly grow up
 around them in the wilderness they tread. What
 immeasurable help they give us when they go beyond a
 pedestrian catalogue and work at the hard task of clearing
 away deadwood that the sunlight may penetrate and
 enlighten the way for justice. Surely it can advance more
 rationally if it is not blind. Who but the scholars have the
 freedom as well as the nurturing intellectual environment to
 differentiate the good growth from the rubbish and to mark
 for rejection the diseased anachronism, the toadstool
 formula, the scrub of pompous phrases? (11)

Scholars help judges by making order from the chaos of the common law.

 It is a homely possession, this constitution, a part of our
 everyday lives. The judges whose job it is to apply it must
 carry liberty in their hearts even when other men have
 ceased to. Who is to say that liberty is dead in the hearts of
 men who are silent? Liberty is not lost suddenly,
 catastrophically; it is lost imperceptibly, by erosion. Who is
 to say it is irretrievably lost until it has died in the hearts of
 those whose job it was to care that it lived in the hearts of

 The responsibility is not an easy one in a day when we
 must reconcile national security and personal liberty. But it
 is a ceaseless one now to see that we do not destroy the
 very values we purport to protect. It is a joint concern of
 judges and people--not people in a symbolic mass--but
 individuals. (12)

In times of war, the judiciary is liberty's best, and sometimes only, hope.

 In an age of transition from the values of many small
 worlds to the inchoate values of one small world, the
 dramatic arts that edit life are shifting from wooden to
 wormwooden formula. Yesterday's vogue featured mobs at
 large or glass-eyed duos deadlocked in dim dialogue as
 night falls. Today's vogue features casually paired
 sleepyheads who mutter instant philosophies to the four
 walls as day breaks. What the old slices of life had was
 monotony. What the new slices of life have is monotony
 espresso. (13)

The tedium of a brave new world is still boring.

 In modern laws, trouvez la femme. She has not been easy to
 find as a person in her own right. We need not look back
 very far to note how scarce she was even in relatively
 modern law, how phantom an existence she eked out on the
 isles of man. Who today would condemn his mother or
 sister, let alone his wife or daughter, to banishment in the
 world of Blackstone? In that nineteenth-century world, he
 scarcely noticed a phantom until she emerged briefly from
 the shadows to walk down the aisle and become wedded to
 the idea that she had no life of her own. Blackstone made it
 plain that "the husband and wife [became] one person in
 law," and then made it plainer that the wife was not the one.
 He found eminently right magic words for this blunt
 fiction: "the very being or legal existence of the woman
 [was] suspended during the marriage...." Any woman
 who did not stick to her knitting as she mastered the art of
 not living soon learned to mend her ways. There were
 abundant legal rules to keep her in order as the zero in
 oneness. (14)

The law has never been kind to the second sex.

 At one time the dominant leaders were those who bullied
 the meek into viewing with alarm any and all changes on
 the fragile spaceship we occupy for a lifetime. I have not
 listened meekly in earlier years to such contemporaries,
 who were going to pot on the status quo. Neither have I
 been listening meekly in recent years to their direct
 decedents, who are going to poppy-seed on non-negotiable
 demands. The new bullies and the old, motivated by a
 common craving for lordliness, have a hard headstart on the
 meek. The new aspirants to power have improved on the
 rituals of blunt old kings. They have popularized fraternal
 handgrips and chants of power for the people, taking
 shrewd advantage of the meek who yearn for bit parts as
 campfollowers. As crowd scenes grow larger, the leaders
 become haloed.

 It seems therefore timely to advance the thesis, validated
 more by experience than booklearning, that bullies adept at
 riding good causes threaten to ride them to destruction
 unless we raise voices of reason effectively against them.
 Blasted are the meek, when bullies are blessed. (15)

Stand up to strident ideologues of every stripe.

 New questions did not unduly disturb the prim tenor of
 lawbooks in old English or French or Latin. In our own
 time, when exploding knowledge is a daily phenomenon,
 new questions are calling forth endless volumes of answers
 in an expanding modern language of law. Still, there is little
 drama in that evolution to compare with such electrifying
 wonders as have evolved from yesteryear's dated super
 dreadnoughts to yesterday's dated super warheads to
 today's unmanned super celluloid noughtheads who beam
 their derring-do by satellite everywhere from central cities
 to remote villages. There is little drama in the common law
 to compare with anything brutish spellbinders can do to
 rally crowds with loudspeakers of tom-toms or buzz-words
 or to stupify a populace with swift executions of justice.
 Savages are now splendidly equipped to out-perform any
 unwary domesticated beings among whom they dwell.

 How will the common law survive amid a medley of
 primitive and sophisticated sorcerers skilled in sinister uses
 of magic words or technology? The explosion of
 knowledge need not culminate in strongholds of lawless
 force or folly if there are enough people determined to live
 by rational laws. At least the appellate courts can set an
 example of reasoned judgments so lucid as to command the
 respect even of savages. May we still believe, as an act of
 faith, that it is within the power of judicial reasoning to
 ward off evil spells that would cast out enlightenment in the
 not quite bright Age of Knowledge. (16)

Beware of highwaymen on the information superhighway.

 The multinationalism that engenders conflict of laws is a
 fait accompli. Such conflict does not necessarily signify
 everlasting wars. Each and all can survive with flying
 colours amid the flying missiles, if they work out a rational
 pax in bello, or what the Romans might call peaceful coexistence.
 It would be rash to say that easy does it, or that
 EEC does it, or that the mists will lift if we meet on a
 summit. Certainly no one from the Far West of the United
 States is going to rush on to an Old World summit where no
 guardian angels tread. (17)

In the conflict of laws, as elsewhere, we can work it out.

 For the most part the lonely judges wander the badlands
 resignedly, discouraged at their extent but deterred by work
 or temperament from calling for true amici curiae to come
 see for themselves the rough areas. We need not linger on
 the obvious pleasantry that any court could do with a few
 friends, centered as it is between lawyers convinced that it
 never read their briefs and commentators convinced that it
 read them all wrong. Though its isolation is rendered less
 than splendid by plainsongs of grumbling and arias of
 scholarly agony, a well-tempered court can still hear the
 counterpoint of genial declarations that the court must have
 read the briefs, else how did declarants win, and an
 occasional discreetly approving warble from the reserved
 section of scholarly judge-watchers that it has soundly
 resolved the issues, broken only by a querulous note that
 the court need not have gone so far as it did to redress the
 Sliding Rule Against Ambiguities. (18)

The thoughtful appellate judge is a lonely hunter.

 The reasoning judge makes haste slowly. Unlike the
 legislator, whose lawmaking knows no bounds, the judge
 stays close to his house of the law. He invariably takes
 precedent as his starting point; he is constrained to arrive at
 a decision in the context of ancestral judicial experience:
 the given decisions, or lacking these, the given dicta, or
 lacking these, the given clues. Even if his search of the past
 yields nothing, so that he confronts a truly unprecedented
 case, he still arrives at a decision in the context of judicial
 reasoning with recognizable ties to the past; by its kinship
 thereto it not only establishes the unprecedented case as a
 precedent for the future, but integrates it in the often
 rewoven but always unbroken line with the past. The
 greatest judges of the common law have proceeded in this
 way, moving not by fits and starts, but at the pace of the
 tortoise that steadily advances though it carries the past on
 its back. (19)

Be patient with judges; they'll likely get there eventually.

 To say that a judge must plod rather than soar is not to call
 him pedestrian. It takes vision to recognize the junctures
 where markers can best help those who travel the long trails
 of the law. Such vision is essential in the occasional cases
 where a judge must choose between conflicting lines of
 precedent or, in an unprecedented case, between conflicting
 lines of policy. How now, brown cow, when here comes a
 white one? (20)

Rumination takes time!

Roger J. Traynor died twenty-five years ago. Let us remember him as, among other wonderful things, the Charles Baudelaire of appellate jurisprudence--for, as his wife once pointed out, "[w]ords were for him a sacred trust, to be used with the greatest care ... vault keys to ideas." (21)

(1.) To read the prose poems in their original French, consult, for example, Charles Baudelaire, Petits poemes en prose (Garnier Flammarion 1967).

(2.) Charles Baudelaire, Twenty Prose Poems (Michael Hamburger, trans., Jonathan Cape Ltd. 1968).

(3.) Id. at 1.

(4.) Id.

(5.) Already nine years retired from the California Supreme Court, Traynor died four years later in 1983.

(6.) Roger J. Traynor, Transatlantic Reflections on Leeways and Limits of Appellate Courts, 1980 Utah L. Rev. 255, 258-59.

(7.) Baudelaire, supra n. 3, at 65. Traynor's own last port was Hastings College of the Law, where he taught in his final years, and where I took his class.

(8.) I have added the titles and aphorisms accompanying Traynor's works.

(9.) Roger J. Traynor, Foreword, in The Riddle of Harmless Error (Ohio St. U. Press 1969).

(10.) Roger J. Traynor, Law and Social Change in a Democratic Society, 1956 U. Ill L. Forum 230, 230.

(11.) Id. at 233.

(12.) Id. at 241.

(13.) Roger J. Traynor, La Rude Vita, La Dolce Giustizia; or Hard Cases Can Make Good Law, 29 U. Chi. L. Rev. 223, 223 (1962).

(14.) Roger J. Traynor, Statutes' Revolving in Common-Law Orbits, 17 Cath. U. L. Rev. 401, 412 (1968) (footnote omitted).

(15.) Roger J. Traynor, Blasted Are the Meek, When Bullies Are Blessed, 75 Dick. L. Rev. 551, 552-53 (1971)

(16.) Traynor, supra n. 6, at 284-85 (footnote omitted).

(17.) Roger J. Traynor, War and Peace in the Conflict of Laws, 25 Intl. & Comp. L.Q. 121, 121 (1976).

(18.) Roger J. Traynor, Badlands in an Appellate Judge's Realm of Reason, 7 Utah L. Rev. 157, 157-58 (1960).

(19.) Roger J. Traynor, The Limits of Judicial Creativity, 29 Hastings L.J. 1025, 1031-32 (1978).

(20.) Id. at 1037.

(21.) Madeleine Traynor, typewritten note (June 9, 1985) (on file with Roger J. Traynor Ctr., Spec. Collections Dept., Library, U. of Cal. Hastings College of the L.). Madeleine was herself a writer, one whose work influenced that of her husband. See e.g. Open Ltr. from Roger J. Traynor, former C.J., Cal. S. Ct., to "Law Commentators or [O]ther Readers" (June 11, 1980) (on file with Roger J. Traynor Ctr., Spec. Collections Dept., Library, U. of Cal. Hastings College of the L.) (acknowledging Madeleine Traynor's "collaboration on the writing of the lectures, essays, and sketches" that Traynor "contributed to various legal publications" and describing her "imaginative turns of phrase" that "sharpened" his "perception of the next turn in analysis" and her "flashes of insight ... from her gifted way with words for even the most ponderous problems").

Jon B. Eisenberg, a partner in Eisenberg and Hancock, LLP, of Oakland, California, is a widely published author on appellate matters. An experienced appellate advocate, he also teaches appellate procedure at University of California Hastings College of the Law.
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Author:Eisenberg, Jon B.
Publication:Journal of Appellate Practice and Process
Date:Sep 22, 2007
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