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Judges and Judiciary

Jul. 12, 2021

How to drive James Joyce nuts

Just think if James Joyce were writing his magnum opus “Finnegans Wake” today on a computer, auto correct would drive him over the edge.

2nd Appellate District, Division 6

Arthur Gilbert

Presiding Justice, 2nd District Court of Appeal, Division 6

UC Berkeley School of Law, 1963

Arthur's previous columns are available on gilbertsubmits.blogspot.com.

UNDER SUBMISSION

Just think if James Joyce were writing his magnum opus "Finnegans Wake" today on a computer, auto correct would drive him over the edge. I began reading "Finnegans Wake" 50 years ago. I am still working on the first paragraph. I am doing the same trying to figure out the recent changes in the sentencing law. An English literature professor friend of mine taught a course on James Joyce. He seemed normal, most of the time. For years he and a special group of friends from all walks of life met once a week to decipher, or should I say to try to decipher, sentence by sentence the meaning of "Finnegans Wake." Not sure whether they got beyond the first page.

My colleagues and I are doing the same with the recent legislation designed to reduce previous draconian sentencing rules. I might include in the mix many judicial opinions on the subject, including my own. But getting back to James Joyce, his novel "Ulysses" was a piece of cake in comparison. And that was tough going. Years ago I wrote about the courageous Judge John M. Woolsey who wrote the opinion finding Ulysses not to be obscene. See United States v. One Book called "Ulysses", 5 F.Supp. 182 (S.D.N.Y. 1933). Wonder what the fuddy-duddies of the 1930s would say about today's novels. Does anyone read the classics anymore? I mean the classics like "Middlemarch," "War and Peace," "The Idiot" (not my autobiography).

I have argued that if one is willing to take the time to devote to works of literature, and other topics in the humanities, "they" (the new grammar drives me nuts) are more likely to be professionally successful. But is that true? As far as I can determine, Judge Woolsey did not major in English literature. He is reported to have read "Ulysses" several times and written several drafts of his well-reasoned opinion, praised by literary critics. It proves a judge or lawyer, or anyone else for that matter, can be highly qualified in all aspects of (their) profession without studying literature. Perhaps the test is in the effort and commitment. To prove the point, here are just two paragraphs that Judge Woolsey wrote in his celebrated opinion:

"Joyce has attempted -- it seems to me, with astonishing success -- to show how the screen of consciousness with its ever-shifting kaleidoscopic impressions carries, as it were on a plastic palimpsest, not only what is in the focus of each man's observation of the actual things about him, but also in a penumbral zone residua of past impressions, some recent and some drawn up by association from the domain of the subconscious. He shows how each of these impressions affects the life and behavior of the character which he is describing.

"What he seeks to get is not unlike the result of a double or, if that is possible, a multiple exposure on a cinema film which would give a clear foreground with a background visible but somewhat blurred and out of focus in varying degrees."

Not bad for a guy who was not a lit major. I note a Joycean influence. Mmm, now I am wondering if he would have written such imaginative prose if he had been a lit major. But further research on Judge Woolsey led me to discover he had a half-sister, Gamel Woolsey, who was a well-known and talented poet, translator and novelist. And guess what? She wrote a racy novel "One Way of Love" that was almost published in 1931 but suppressed. And Judge Woolsey wrote his famous opinion that became the preface for "Ulysses" in 1933. Could it be that after reading the lascivious novel by his half-sister, Judge Woolsey was influenced by a faint prurient interest? Who am I to say?

No one could predict how Judge Woolsey would rule. Certainty? Certainty is an unattainable ideal like Plato's "Forms." So don't look to the legal profession for certainty. To prove the point, I take the liberty of quoting from one of my own opinions concerning the range in good-faith settlements. In North County Contractor's Assn. v. Touchstone Ins. Services, 27 Cal. App. 4th 1085, 1090 (1994):

"That 'reasonable range' is about as close to certainty as the elusive good faith settlement can come. A conscientious judge's search for certainty can sometimes end in disappointment because in some cases certainty is more a phantom than a reality.

"As Oliver Wendell Holmes explained: 'The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding.' Holmes, "The Path of the Law, 10 Harv. L. Rev. 457, 465-66 (1897).

"When confronted with motions for good faith settlements, judges should reflect on Holmes's insight, and not yearn for the unreal goal of mathematical certainty. Because the application of [California Code of Civil Procedure] section 877.6 requires an educated guess as to what may occur should the case go to trial, all that can be expected is an estimate, not a definitive conclusion. That estimate requires that the trial judge inquire into a number of relevant factors, which are: the amount offered in settlement in relation to plaintiff's potential recovery; the settlor's proportionate liability; the lack of wrongful conduct; insurance policy limits; the settlor's financial condition; and the allocation of settlement proceeds among the plaintiffs. [Citation.] A judge charting the boundaries of good faith of necessity must avoid a rigid application of the factors set forth in Tech-Bilt [(1985) 38 Cal.3d 488, 499]. The judge should make an educated guess whether the settlement approximates the settling defendant's apportionment of liability and is not grossly disproportionate to the settlor's fair share of anticipated damages. (See Abbott Ford, Inc. v. Superior Court [1987] 43 Cal.3d 858, 873-875.)."

You see, there is the answer. Choices in life and the law are based on educated guesses. Does a broad-based education in the humanities lead to a more educated educated-guess? Ask Judge Woolsey. 

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