Practical Benefits of Literature in Law, and Their Limits
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Mississippi College Law Review Volume 35 Issue 1 Vol. 35 Iss. 1 Article 8 2017 Practical Benefits of Literature in Law, and their Limits James L. Robertson Follow this and additional works at: https://dc.law.mc.edu/lawreview Part of the Law Commons Custom Citation 35 Miss. C. L. Rev. 266 (2016-2017) This Article is brought to you for free and open access by MC Law Digital Commons. It has been accepted for inclusion in Mississippi College Law Review by an authorized editor of MC Law Digital Commons. For more information, please contact [email protected]. PRACTICAL BENEFITS OF LITERATURE IN LAW, AND THEIR LIMITS James L. Robertson* My literature is confined to the effort to make it in the form of judicial decisions, and I occasionally manage to slip a phrase past the negative vigilance of my brethren. - 0. W. Holmes to Lewis Einstein (1914) I. INTRODUCTION AND OVERVIEW The job description for a good judge should include "the wisdom of Solomon, the patience of Job and the humanity of Shakespeare." 2 Many do not always understand the humanity component. At best we sense it least, but this is like not sensing how our lives would be lacking if all music had ended with Mozart, if we never had Beethoven's odd number symphonies, Wagner or the great Russians among whom only Tchaikovsky is appreciated appropriately. Or if baseball had remained in the Dead Ball Era, so that we celebrated only the glories of Cy Young and Ty Cobb and Honus Wagner. Or if we had nothing beyond Newtonian physics with which to understand and explore the natural world, or could see only what Galileo could see of the wonders of the Universe. Or if to light our way through the social, political and economic phases of life, all we had were what Plato and Aristotle and Thucydides taught, and the practices of the Romans who followed. If I am right in these, that we do not appreciate-much less engage appropriately-the humanity component of good legal practice, what follows may help. A few years back, Justice Evelyn Keyes of Texas argued 3 that one can never become "a great judge without a thorough grounding in what the humanities, including literature, as well as the law itself, really do have to teach 4 us." She closed with a more elaborate version of the same provocative point, viz., with such a grounding "he has at least the possibility of becoming a great judge, which, without these attributes, he can never be." 5 The more modest "a very good judge" might taste better. That aside, I am taken with the positive * B. A., University of Mississippi, 1962; J. D., Harvard University, 1965; Justice, Supreme Court of Mississippi, 1983-1992. For reviewing parts of prior drafts and their comments and encouragement, thanks to David J. Greenberg, Michael Greenwald, E. Grady Jolly, Evelyn Keyes, Stephanie Middleton, Linda A. Thompson, and Margaret V. Turano. For research assistance, thanks to Jason Andrew Kamp, Candice Rucker, and J. Lott Warren; also, thanks to James Russell Dumas, Ethan Samsel, and the editorial board of the MC Law Review for their editing and proofing of the Article. Without hesitation or qualification, all screw ups are my responsibility. 1. Letter from Oliver Wendell Holmes, Jr. to Lewis Einstein (Apr. 17, 1914) in THE HOLMES- EINSTEIN LETTERS: CORRESPONDENCE OF MR. JUSTICE HOLMES AND LEWIS EINSTEIN, 1903-1935, 89 (James Bishop Peabody ed. 1964). 2. Cheek v. Ricker, 431 So.2d 1139, 1143 (Miss. 1983) (Robertson, J., in a prior life). 3. Evelyn Keyes, The Literary Judge: The Judge as Novelist and Critic, 44 HOUSTON L. REV. 679 (2007). Justice Keyes sits on the Texas Court of Appeals, First District. 4. Id. at 680. 5. Id. at 701. 266 PRA TICAL BENEFITS OF LITERATURE IN LAW 267 points made. The law most assuredly is a dimension of the humanities. It has arisen from human experience and governs human behavior. Law creates opportunities. Its end is a society in a continuous process of becoming and in which we should want to live. Keyes also notes the other side of the coin, "[O]nly a morally literate and humanistically informed people can maintain a free society against the dehumanizing forces of totalitarian ideology and destructiveness that constantly assail it, for only then will they know what is at stake." 6 "Ay, there's the rub." 7 Today I point to instances where judges (including yours truly, in a prior life) have turned to the humanities, particularly literature, to enrich the message of their adjudications. I focus on four cases, and the strategies by which each was adjudged. Almost ninety years ago, a night watchman drowned in the Savannah River trying to save his dog, and the question was how the court should see his widow's claim for workers' compensation death benefits.8 The Supreme Court of Georgia did something special. The other three are from Mississippi. One was about hunters headlighting and slaughtering deer at night and out of season, and how we should understand and punish their misdemeanant behavior. 9 Then there was the litigational contretemps of a church-led effort to ban beer in a college town, its gratuitous consequences for unsuspecting long time area residents, and what insights should be brought to bear beyond the technical rules of public referenda. 10 Finally, there is a case about a cultural war over access to a fine fishing hole where not everyone with a license could go and fish.11 I will present the Georgia case first and in full. Then, I will walk through more familiar and lesser categories of legal resort to the humanities-and illustrations of each-well used and sometimes not so well used. At all levels good judges practice humanity by being good observers and good listeners, by being on guard lest they take themselves too seriously. Expect no panaceas. Some may see my case no stronger than the exchange between the Baptist and the Methodist familiar in my part of the world, viz., the Baptist: "How can you possibly believe in infant baptism?" The Methodist: 6. Id. at 699. Though I accept the general point, I'd want to know a little more about what lies within and without "totalitarian ideology and destructiveness." Id. I might add the dehumanizing forces of ordinariness and malaise and poverty, of religious intolerance within and without Christianity or Judaism, and of unawareness of wonders, missed times to dream. 7. WILLIAM SHAKESPEARE, HAMLET act 3, sc. 1, In. 65 in THE PLAYS AND SONNETS OF WILLIAM SHAKESPEARE (William G. Clarke and William A. Wright eds., 1952) (subsequent citations to Shakespeare are from this edition). 8. Montgomery v. Maryland Casualty Co., 151 S.E. 363 (Ga. 1930). See infra notes 12-36 and accompanying text. 9. Pharr v. State, 465 So. 2d 294 (Miss.1984). See infra notes 250-59 and accompanying text. 10. City of Clinton v. Smith, 493 So.2d 331 (Miss. 1986). See infra notes 260-74 and accompanying text. 11. Dycus v. Sillers, 557 So. 2d 486 (Miss. 1990). See infra notes 275-80 and accompanying text. I authored the controlling opinions in Pharr, City of Clinton, and Dycus. I remain of the view that a larger than ordinary, literature-based stratagem was useful in all three cases. The extent to which the stratagem may have been well executed or over time has succeeded is for others to judge, within the court of public opinion, and on a case by case basis. 268 MISSISSIPPI COLLEGE LAW REVIEW "Believe in it?!? Hell, I've seen it done!" My faith is that a fair number of those who peruse these pages may emerge with a better feeling about the law and adjudication and how they may be practiced, though it may be necessary to withdraw for a while from the get-and-spend world and the entertainment of your hand-held electronic device of choice. The pause that refreshes is the reflective pause. II. A JUDICIAL PAEAN TO "MAN'S BEST FRIEND" Montgomery v. Maryland Casualty Co., 12 is a workers' compensation case. A night watchman for a boat repair service along the Savannah River drowned in the river on his employers' premises, and his widow claimed workers' compensation death benefits. It seems the watchman regularly brought his dog to work. On the fateful night, the dog jumped or fell into the river. The watchman followed into the water to save the dog, but, as fate would have it, could not save himself. Without surprise, this was not a death covered under the compensation act. Many a court would have matter-of-factly brushed it off and affirmed the compensation commission's denial of benefits. Many a state supreme court would have denied certiorari after the court of appeals had affirmed. Justice Stirling Price Gilbert of the Supreme Court of Georgia did something wonderful, a paean to the dog and his contributions to the quality of our lives, as man's best friend and otherwise. In his autobiography, Gilbert tells of his childhood and of "my most loyal friend and companion, .. in courage and intelligence and indeed loyalty,... an aristocrat among animals."1 3 He had named his "bench-legged, rather long-bodied mongrel" appropriately: "Lion!" 1 4 How Montgomery came to be should be told in Gilbert's words. After I had become a Justice of the Supreme Court of Georgia, a case involving a dog fell to me for writing the decision. Immediately the memory of my dog Lion filled my mind. In fact, my heart was touched, for no man ever loses his regard for a loyal playmate, whether human or beast.