Roger Traynor

A Collection of Essays by the Honorable Roger J. Traynor, Chief Justice of the California Supreme Court (1940-1970)

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Some Open Questions on the Work of State Appellate Courts
Law and Social Change in a Democratic Society
No Magic Words Could Do It Justice
La Rude Vita, La Dolce Giustizia
Better Days in Court for a New Day's Problems
The Unguarded Affairs of the Semikempt Mistress
The Courts: Interweavers in the Reformation of Law
Some Not So Lost Causes of Action
Statutes Revolving in Common-Law Orbits
Blasted Are the Meek, When Bullies Are Blessed
Transatlantic Reflections on Leeways and Limits of Appellate Courts

III. Developing the Law
The Ways and Meanings of Defective Products and Strict Liability
The Devils of Due Process in Criminal Detection, Detention, and Trial
War and Peace in the Conflict of Laws

IV. Bibliography
Afterword

THE TRAYNOR READER

Introduction by G. Edward White *
This collection of Chief Justice Roger Traynor's essays makes two attractive offers to the reader: an exposure to one of the distinguished judges in twentieth-century American history and an opportunity to reflect about the nature and process of appellate judging. Others, as well as myself, have regularly remarked on Traynor's contributions to American law and jurisprudence;1 it seems pointless to detail those observations in a book whose purpose is to allow Traynor to speak for himself. There are, however, several features of Traynor's approach to judging that one can see revealed in the essays, a few of which are worth comment.

The years of Traynor's tenure on the Supreme Court of California, 1940 to 1970, were years of unprecedented growth and change in the state and the nation. In addition, they were years in which the idea of affirmative government, embodied in political slogans such as the New Deal, the Fair Deal, the New Frontier, and the Great Society, increasingly dominated American life. The thirty years of Traynor's service not only witnessed massive changes in demographics and technology, but witnessed growing momentum for the proposition that government whether at the state or national levels, whether through its executive, legislative, or judicial branches-should be a principal agent of response to the changes. When Traynor first assumed the office of judge in 1940, the idea of affirmative government was well launched; by 1970, when he retired from the Supreme Court of California, it had crested. His entire judicial career was spent in an intellectual environment that assumed that the increased presence of government in American life was a necessary and beneficial phenomenon. One can find this assumption explicitly stated on several occasions in his writings.

The social and intellectual context of Traynor's tenure ensured that the principal jurisprudential challenge faced by Traynor and his peers would be the challenge of activism. The term "activism," when associated with judging, has recently acquired a pejorative flavor, suggesting hubristic or megalomaniacal judicial behavior. The term had no such meaning during the years of Traynor's tenure. Activism for Traynor merely meant a sense that, for a variety of reasons, judicial performance of a given task, as opposed to the performance of that task by a jury or a legislative or an administrative body, furthered the values of rationality, competence, or disinterestedness. It also meant a desire to have some unit of government make an affirmative response to social problems. A major question for Traynor was how, in a world where government was expected to respond to, and to help shape, the course of rapid social and economic change in American society, the judiciary could contribute to that response. The speeches suggest that three dimensions of the activist challenge were especially significant for Traynor. One was the problem of the obsolete precedent; a second was the relationship between courts and legislatures in a world of affirmative government; a third was the relationship between judicial activism and the conventional view that judicial decisions should avoid being "result-oriented."

I

In "Law and Social Change in a Democratic Society," "The Courts: Interweavers in the Reformation of Law," and "Some Not So Lost Causes of Action," one can see Traynor wrestling with the presence of "a wooden or hazy concept in the law that hampered a perennial question for solutions to intractable questions." He refers to "rule[s] [that have] lost touch with reality and should be abandoned or reformulated to meet new conditions and new moral value,"2 and to "the diseased anachronisms, the toadstool formula, the scrub of pompous phrases."3 "Who among us," he asks, "has not known a precedent that should never have been born?" Yet the "notion persists that the overruling of ill-conceived, or moribund, or obsolete precedents somehow menaces the stability of the law.4

In addressing the problem of the obsolete precedent, Traynor repeatedly resorts to the metaphor of "clearing brush in a forest." Precedents are likened to trees: obscure or obsolete ones block out light, bar the path of progress, entangle travelers in their doctrinal undergrowth. On the other hand, sound precedents grow, provide guidance to the traveler, and nurture the soil. The judge's task is to prune carefully, removing the "diseased" wood and underbrush without cutting all the trees down. The metaphor is in some respects an obvious one, but it suits Traynor's purpose: brush clearing is a purposeful, rational activity that advances "progress" without doing violence to established structures. Such a description approximates Traynor's ideal of appellate judging. When a judge encounters a precedent that seems irrational, given the conditions or the assumptions of contemporary society, Traynor advises considering "pruning it" (limiting the obsolete or unjust features of its application) or, if necessary, chopping it down (overruling it) to make way for a "healthier" approach.

How does one know when a precedent has reached the stage of obsolescence? Here Traynor draws on his career in two related worlds, the world of the legal scholar and the world of the judge. From 1930 to 1940 and from 1970 to his death Traynor was a law professor; his judicial opinions are notable for their reliance on academic sources.5 Academics, Traynor feels, "have the freedom as well as the nurturing intellectual environment to differentiate the good growth from rubbish."6 A major purpose of scholarly commentary is to see the forest despite the trees; to articulate the policy grounds on which precedents exist and the social principles they purport to embody. Such an articulation can also reveal the irrelevance or injustice of policies and principles formulated in another era. Scholarly analysis thus draws a judge's attention to the basic reasons for obsolescence. It is then the judge's turn to apply the scholarly insights to his own work.

Judges, rather than scholars, have actual cases to decide. Scholarly criticism of precedents may be useful, but it has no direct legal significance; a judge, on the other hand, has the power to change the common law. Once scholars have alerted a judge to the underlying bases of a precedent, the judge is provided with a vehicle for subjecting the precedent to searching analysis. Such analysis might suggest that since the principles or policies behind the precedent are no longer regarded as significant, the precedent should be abandoned. But the judge's task is not only to subject precedents to critical analysis but to describe how they should be reformulated or what is to replace them. Scholarly guidance only takes the judge so far: eventually "a judge's troubled quest for the rational outcome of a hard case involves . . . professional skill . . . legal reasoning, and legal imagination."7

In his own career Traynor regularly "pruned" or abandoned obsolete precedents when he felt their purposes had been served. Two of the three essays dealing primarily with substantive law, "The Ways and Meanings of Defective Products and Strict Liability," and "War and Peace in the Conflicts of Laws," survey developments in areas in which Traynor significantly changed the common law of California. His landmark defective products opinion, Escola v. Coca Cola Bottling Company,"8 fused warranty theory with the idea of strict liability for "abnormally dangerous" substances to create the principle that a manufacturer of a "defective" product which injures another is strictly liable for injuries that can be traced to the product's defectiveness. Escola was less of an "overruling" than an abandonment of the "privity" qualification for injured consumers, who previously could only have proceeded in warranty against persons in direct contractual relations with them. But Escola was to reorient the treatment of defective products cases: by the 1960s, Traynor's approach had become adopted by numerous jurisdictions and the Restatement of Torts, and today consumers injured by "defective" products sue manufacturers directly in tort in most jurisdictions.

Escola was representative of Traynor's approach to "intractable" legal problems in that his analysis was informed by his awareness of academic scholarship, in particular William Prosser's analysis of strict liability for defective products in the 1941 edition of his Torts treatise.9 In the area of conflict of laws as well Traynor's innovations were grounded on a familiarity with academic literature. As he puts it in "War and Peace": "When there is no clearing, [the judge] must chop his way through, however clumsily, and hope that scholars will speed their reinforcements." 10 Traynor's early California conflicts decisions, such as Grant v. McAuliffe11 and Emery v. Emery,12 demonstrated his frustration with the "mechanical concepts" and the "rigid rules" of the first Restatement of Conflicts. "I had to find my own bearings in that dismal scene," Traynor writes, "praying for a minimum of trial and error." Eventually "I came to rely most heavily on Professor Brainard Currie's interest analysis, with some modification and amplification."13

Interest analysis, which searches for the policy behind a law of forum state, reserving choice of law questions for those situations when the forum state cannot be said to have an interest in applying its policy, was employed by Traynor in two of his later decisions, Bernkrant v. Fowler14 and Reich v. Purcell.15 Those decisions embody an approach that is now dominant in California, many other jurisdictions, and the second Restatement of Conflicts. Notwithstanding Traynor's acknowledged debt to Brainard Currie, he had himself employed interest analysis in conflicts cases as early as 1942, in his dissenting opinion in Ohio ex rel. Squire v. Porter.16 Curiously, Traynor temporarily abandoned that approach three years later,17 only to revive it in the 1950s. Writing of his attitude towards conflicts cases in the 1940s, Traynor suggested that "scholars . . . may speculate that time had wearied a still junior judge. Thereafter, confronting still heavier calendars, I grew younger . . . ."18


II

The obsolete precedent may thus have given Traynor some concern as a judge, making him more of a pruner than a lumberjack, but it did not keep him from actively clearing the forest. Nor was the proliferation of statutory law that occurred during Traynor's tenure a bar to activism; the presence of statutes only increased the challenge. By the time Traynor took office in 1940, a tradition of judicial deference to statutes had become well established. Visible judges such as Holmes, Brandeis, Learned Hand, Frankfurter, and Stone had been associated with a theory of deference to the legislature in constitutional areas, and the theory seemed even more compelling in common-law cases in which no constitutional issues were raised.

Traynor was not fully persuaded by this theory of deference, and sought to expose its limitations. "There has been too much idle disputation," he said in 1961, "as to whether [the judiciary] or [the legislature] is the primary or ultimate or most social or most appropriately gowned source of law." He found the idea that "judicial lawmaking must now atrophy because statutory lawmaking is growing apace" to be derived by "curious reasoning." He reminded enthusiasts for statutory lawmaking that "even the most carefully drafted and comprehensive statutes of one generation decline into the antiquated texts of the next."19 In the main, Traynor continued to regard "the major responsibility for law making in the basic common law subjects"20 as remaining with the courts.

To adopt this view, in a world in which statutes proliferated, required some ingenuity. Traynor articulates his theory of the relationship between judicial and statutory lawmaking in several of the essays, notably "The Unguarded Affairs of the Semikempt Mistress" and "Statutes Revolving in Common-Law Orbits." The theory is sufficiently sophisticated to resist easy encapsulation, but its bare outlines are as follows.21 Both legislative lawmaking and judicial lawmaking are in a continual state of change, and the relationship between the two types of lawmaking is symbiotic rather than competitive. Legislatures pass statutes whose applicability to specific situations is uncertain; courts undertake the applications; legislatures revise the courts if they find a specific application offensive. Alternatively, statutes can supply, by analogy, common-law rules. When a case is not governed by a statute, Traynor notes in "Statutes Revolving in Common-Law Orbits," a court is "free to copy an appropriate model in a statute."22 In a case raising the question of the responsibility of guardians for the administration of testamentary gifts, Traynor analogized to provisions of the California Probate Code establishing procedures for the administration of testamentary gifts by executors. The Code was silent on guardians; Traynor created a common-law rule patterned on its treatment of executors.23

Traynor's partnership theory of legislative-judicial relations led him to reject some traditional maxims of statutory interpretation. He criticized a literal reading of statutes, urging that courts go beyond the express words to consider legislative purpose and context. He suggested that legislative silence need not invariably be taken as acceptable of existing common-law rules; it can also mean "ignorance or indifference." And he protested against the view that "policy" matters are peculiarly the provence of the legislature. Policy considerations are as "appropriate and even . . . basic" to judging as to legislating.24

In short, the presence of statutory lawmaking neither deterred Traynor from his own innovative efforts nor provoked him to adopt a competitive stance toward legislation. He recognized the "leeways" left by statutes: The necessity for broad statutory language to be interpreted in concrete situations; the opportunities for judicial creativity in the interpretations; the eventual emergence of a "common law" of statutes. For several of Traynor's contemporaries the presence of a legislature presented an opportunity to avoid difficult decisions or to resist change; for Traynor the legislative presence only spurred him to action. He rejected "the protestations of those who would have us believe that judicial rules and statutory rules . . . spring from separate covertures"; the "real problem" for him was "not whether judges should make use of statutes, but how they can make optimum use of them."25

III

In his efforts to modify or to abandon obsolete precedents and to make ingenious use of statutory language, Traynor was guided by an ideal, which he once described as "a legal process as rational in all its ramifications as it has traditionally been in the courts."26 "La Rude Vita, La Dolce Giustizia," "Better Days in Court for a New Day's Problems," and "Statutes Revolving in Common-Law Orbits" address the theme of rationality in judging, as does Traynor's substantive essay on criminal procedure, "The Devils of Due Process in Criminal Detection, Detention and Trial." Traynor's devotion to the ideal of rationality raises the problem of result-orientation in judging, a problem that devolves from the elitist status of the judiciary in a democratic society.

Result-orientation, according to one line of criticism, is to be deplored in judging because there is no effective political check on American judges. Possessed of life tenure or virtually assured of reelection, invested with dignity and mystery by their office and their language, making decisions that affect many people but are understood by relatively few, judges, this line of argument runs, are "free" to impose their biases on the rest of us without much accountability. Given the powers and freedoms of judges, judicial result-orientation is deplorable in a democracy. A judge ought to be "impartial," "disinterested," and objective."

To some extent Traynor accepted this line of criticism, although he found that disinterestedness and objectivity were not incompatible with result-orientation. For Traynor rationality was the link between the ideal of the dispassionate judge and the reality that every judicial decision was "result-oriented" in that it reached a judgment for one side rather than another. In most "hard" cases, the kinds of cases that are considered by appellate courts, "competing considerations are of such closely matched strength as to create a dilemma." A judge needs to "arrive at a decision one way or the other"; how can the judge "avoid being arbitrary?" And a decision "will not be saved from being arbitrary merely because [the judge] is disinterested."27

Here rationality comes into play. The judge who is "intellectually interested in a rational outcome" cannot "remain disoriented forever, his mind suspended between alternative possible solutions." Rather, he "can strive to deepen his inquiry and his reflection enough to arrive at least at a value judgment as to what the law ought to be and to spell out why." The value judgment may have been intuitive, but it needs to be "spelled out." In the course of explication the judge's "interest in a rational outcome" becomes channeled "into an interest in a particular result." Result-orientation is thus "no more than the final step toward reasoned judgment."28 The original motivations of a judge ("biases") are of no consequence if the judge takes the time and effort to reason his judgments through. The significance of a result becomes indistinguishable from the reasons given in connection with it. If the reasons are vulnerable to at tack, so is the result. Rationality thus not only serves to explicate result orientation, it justifies it. The "primary internal characteristic of the judicial process," Traynor says in "Statutes Revolving in Common-Law Orbits," is "that it is a rational one."29

The author of this introduction is tempted to drop the role of an expositor at this point and to question, as I have on previous occasions, Traynor's faith in rationality as an "ideal for the legal process" or even as a moving force in the universe.30 But whether or not one shares Traynor's sanguinity about the capacity of judges or other humans to behave rationally, he makes a coherent and plausible case for the significance of rationality in judging. One cannot, as a judge, simply "write up" one's feelings. If one grounds a decision on one's basest prejudices or one's wildest enthusiasms, one does a disservice to an office whose occupants are expected to behave "impartially," however elusive that standard may be in application. One of the justifications for giving some humans the power to make decisions affecting the lives of others is that expectation of impartiality. The expectation serves as a constraint on judicial decision-making, forcing judges to justify decisions in language whose purpose is to assure others that the decisions are not idiosyncratic or "biased."

Given this expectation that judges, in exchange for their arbitrary power, will not act arbitrarily, there is much to be said for rationality as an ideal for opinion-writing. Opinions are the means by which judges convince the rest of us that they are not behaving arbitrarily; the more "rational" those opinions seem, the more they may be likely to meet this burden of persuasion. This, I take it, is the principal sense in which Traynor uses the term "rational." Philosophically, that usage begs some questions, since one can begin with an "irrational" premise and then logically derive results from it, investing one's discourse with the kind of coherence that one finds in the syllogisms of the Mad Hatter. What is "rational" may be what we make it to be; rationality may be nothing more than an effort to persuade others to accept one's inarticulate premises. Still, one can see how a search to persuade others might well lead a judge to examine his own premises and to try to fashion arguments for why others should accept them. It does no injustice to the common meaning of rationality to call this exercise in persuasion a search for "a rational outcome." Traynor was well aware that the rationality of one generation will probably not be that of another; that awareness keeps his dedication to "a rational ideal for the legal process" in proper perspective.

There is much more in this collection than the preceding summary has gleaned. For reasons previously alluded to, judging is a profession whose practitioners take care that their personalities and values do not intrude too heavily on their work product. It is rare when one gets a glimpse of the theory of judging that lies behind a judge's efforts; rarer still when a judge has a theory that is sufficiently integrated to set forth in print. With this collection of writings, Traynor follows a tradition of articulate twentieth century judges, personified by Cardozo in The Nature of the Judicial Process, who have talked about their theoretical approach to their job. One might wish that more judges would attempt such efforts, but few, one suspects, would meet the standards set by Roger Traynor in this volume.

* John B. Minor Professor of Law and Professor of History, University of Virginia.
1. Three law review symposia on Traynor are especially useful: 13 Stan. L. Rev. 717 (1961), 53 CALIF. L. REV. 5 (1965), and 44 S. CAL. L. REV. 876 (1971). 1 have chapters on Traynor in THE AMERICAN JUDICIAL TRADITION 292-316 (1976) and TORT LAW IN AMERICA 180-219 (1980).
2. Law and Social Change in a Democratic Society, page 37.
3. Law and Social Change in a Democratic Society, page 38.
4. The Courts: interweaves in the Reformation of Law, page 126.
5. For specifics, see THE AMERICAN JUDICIAL TRADITION, supra note 1, at 304-13.
6. Law and Social Change in a Democratic Society, page 38.
7. La Rude Vita, La DoIce Giustizia; or Hard Cases Can Make Good Law, page 80.
8. 24 Cal. 2d 453, 463, 150 P.2d 436, 440 (1944) (Traynor, J., concurring).
9. For more detail see G. WHITE, TORT LAW IN AMERICA, supra note 1, at 197-200.
10. War and Peace in the Conflict of Laws, page 264.
11. 41 Cal. 2d 859, 264 P.2d 944 (1953).
12. 45 Cal. 2d 421, 289 P.2d 218 (1955).
13. War and Peace in the Conflict of Laws, page 265.
14. 55 Cal. 2d 588, 360 P.2d 906, 12 Cal. Rptr. 266 (1961).
15. 67 Cal. 2d 551, 432 P.2d 737, 63 Cal. Rptr. 31 (1967).
16. 21 Cal. 2d 45, 129 P.2d 691 (1942).
17. Estate of Lund, 26 Cal. 2d 472, 159 P.2d 643 (1945).
18. War and Peace in the Conflict of Laws, page 284.
19. No Magic Words Could Do It Justice, pages 50-52.
20. No Magic Words Could Do It Justice, page 52.
21. 1 have drawn here from some of the material in pp. 304-05 of THE AMERICAN JUDICIAL TRADITION, supra note 1.
22. Statutes Revolving in Common-Law Orbits, page 179.
23. In re Estate of Mason, 62 Cal. 2d 213, 397 P.2d 1005, 42 Cal. Rptr. 13 (1965).
24. Traynor, Reasoning in a Circle of Law, 56 VA. L. REV. 739, 749 (1970).
25. Statutes Revolving in Common-Law Orbits, page 180.
26. Statutes Revolving in Common-Law Orbits, page 181.
27. La Rude Vita, La Dolce Giustizia: or Hard Cases Can Make Good Law, page 79.
28. La Rude Vita, La Dolce Giustizia: or Hard Cases Can Make Good Law, page 79 n. 16.
29. Statutes Revolving in Common-Law Orbits, page 156 n.1 (quoting Breitel, The Lawmakers, 65 Colum. L. Rev. 749, 772 (1965)).
30. See G. WHITE, THE AMERICAN JUDICIAL TRADITION, supra note 1, at 296-97, 300- 314-16; G. WHITE, TORT LAW IN AMERICA, supra note 1, at 208-10.

The Traynor Reader Foreword *
Eminent scholars have acclaimed Roger J. Traynor as one of the greatest judges in the history of the United States.1 He was also one of the most beloved as an unpretentious man with unlimited kindness and respect for others. His death at 83, on the 14th of May 1983 at his Berkeley home, saddened friends throughout the world. The Memorial Room at the Hastings Law Library, established in his honor as a center for new scholarship, is replete with memorabilia from the Traynor home evincing these friendships and documenting his career.

We at Hastings College of the Law, where he became a revered teacher in his post-retirement years, are particularly proud that among the many honors that came to him, including the American Bar Association's Gold Medal in 1967, a number attest to his close association with the University of California. He received an LL.D. at Berkeley in 1958, the University of California Law School Association Citation in 1961, and the California Alumni Association Citation in 1974. He served on the Advisory Council of U.C. Berkeley's School of Business Administration from 1957 to 1967, and was a member of the Berkeley Fellows group from its inception in 1968.

His life spanned most of this century. He was born on the 12th of February 1900 in Park City, Utah, a mountain mining town of diversified nationalities and beliefs that became for him a microcosm of the many worlds he read about in the school library. He grieved over human misery or folly; he rejoiced at whatever engendered happiness or wisdom; the soaring mountains that gave hope for the depressing mines they enclosed. His responsiveness to the conditions around him provided a sense of responsibility that encompassed the will to work well with others. He recalled a vision of teamwork in a childhood incident:

One memorable day, when it was my task to extricate a horse mired in mountain mud, I settled for imagining an ally who would appear just that once to help. Alone, one needed fanatic determination to coax and maneuver a horse bogged down on all fours into rising again four square. With a rescue team it would be less of a struggle to make the powerless fallen coordinates stand united again in horsepower.2

With the encouragement of perceptive teachers, Roger Traynor enrolled in U.C. Berkeley in 1919 and before long he received the Willard D. Thompson Scholarship for students from Utah. He earned his B.A. with a virtually straight A record. By 1927 he had achieved the supposedly impossible: simultaneously a teacher of political science and the editor-in-chief of the California Law Review, he received a Ph.D. in political science and his J.D. from Boalt Hall.

He then undertook groundbreaking articles on taxation. In 1933 he and Madeleine, just married, took a semester's leave from the University to go to Sacramento. There his articles became the basis for major changes in California and other states' taxation. His life thereafter was hardly cloistered. He amplified his teaching and writing by serving as a consultant for the California State Board of Equalization (1932-40) and the U.S. Department of the Treasury (1937-40), and as Deputy Attorney General of California (January-July 1940) at the behest of then Attorney General Earl Warren. While establishing his reputation as a recognized tax expert, he became the devoted father of three sons.

In 1940 he was unexpectedly appointed a Justice of the California Supreme Court, serving in that capacity until 1964, when he became Chief Justice until his retirement in 1970. His judicial opinions became jurisprudential models for casebooks in every field. As Professor Harry Kalven commented:

Roger Traynor is a law professor's judge. His opinions are concise; he raises all the issues; his writing is lucid and to the point. His citations are knowledgeable, economical, and literate.... A hallmark of his judging is a patient craftsmanlike working out of things within the frame of reference he has been given by the existing law.3

In a 1983 eulogy, Judge Walter V. Schaefer of the Illinois Supreme Court wrote that the Traynor opinions and essays "ranged across tit whole spectrum of the law ... [H]e was an acknowledged leader in every field he touched." He added that the opinions:

showed that he had squarely faced the problems of the case, cut through the fictions, and tendered his solution. His style was one of modest mastery, stemming from a knowledge of the roots of the legal doctrines and a lively sense of the relevance of those doctrines to present conditions.4

Professor Karl Llewellyn, noting the Traynor essay on Some Open Questions on the Work of State Appellate Courts, preferred it even to the Cardozo essays: "Judge Traynor got down further, and in a stubborn, lovely fashion, more closely to tomorrow's cases . . . ."5

Commentators have frequently quoted his epigrams. In the March 1965 California Law Review dedicated to his "Twenty-Five Years of Judicial Creativity," each commentator begins with a Traynor quotation, for example:

One hesitates to plead for reforms in the name of common sense... for we belong to a profession that prides itself on not throwing chaos lightly to the winds.6

At 70, Chief Justice Traynor set an example of voluntary retirement, despite pleas that he continue the job he did so well. Offers promptly poured in from law offices and law schools. He spent the first spring of his winter years at the University of Virginia, returning in the fall to Hastings. Thereafter he spent an academic year at the University of Utah (1971-72). During these two years he served as chairman of the ABA Committee that drafted a new Code of Judicial Conduct. He spent the academic year 1974-1975 at Cambridge University where he held the Sir Arthur Goodhart Visiting Professorship.

Across the decade his primary base was Hastings, though he also lectured at law schools and judicial conferences throughout the country and continued his active membership on the Council of the American Law Institute.

At 80 Chief Justice Traynor wrote his last essay, for a conference in England-Transatlantic Reflections on Leeways and Limits of Appellate Courts.7 A worsening arthritic hip impelled surgical replacement in 1981. He confronted subsequent cancer so bravely that few visitors apprehended the imminence of death.

On his desk there remain manuscripts from young scholars who wrote that the Traynor opinions inspired their work. There is many a letter echoing one of the nation's foremost legal scholars who had addressed his most recent treatise to the Chief Justice with these words:

I often think of you when I try to write about such problems: part of
my thinking process is to ask myself: "What would Roger Traynor say about this?"

Roger Traynor's voice is stilled now: or is it? Somewhere in the world, in the centuries beyond his, someone confronting an age-old problem in new guise will be remembering:

"This is what Roger said . . . ."

* We are indebted to the editors of the California Monthly for permission to reprint substantial excerpts from Professor Dan Henke's tribute to Roger Traynor in its June-July 1983 issue.

1. Schwartz, Judicial Ten: America's Greatest Judges, 1979 S. ILL. U.L.J. 405-47.

2. Traynor, In Honor of Walter V Schaefer, 74 NW. U.L. REV. 682, 684 (1979).

3. Kalven, Torts: The Quest for Appropriate Standards, 53 CALIF. L. REV. 189, 189-90, 191 (1965).

4. Schaefer, A Judge's Judge, 71 CALIF. L. REV. 1050, 1051 (1983).

5. K. Llewellen, The Common Law Tradition: Deciding Appeals 197 n.194 (1960) (citation omitted).

6. Traynor, Comment on the Courts and Lawmaking, in Legal Institutions Today and Tomorrow 48, 56 (M. Paulsen ed. 1959), quoted in Armstrong, Family Law: Order out of Chaos, Law: Order out of Chaos, Law: Order out of Chaos, Law: Order out of Chaos, 53 CALIF. L. REV. 121 (1965).

7. 1980 UTAH L. REV. 255, reprinted supra page 193.

THE TRAYNOR READER
Biographical Note
Many Worlds Times You*

It is common knowledge that the endless plots of stories and plays in every language are but variations on a few timeless themes. For baccalaureate addresses there is only one theme, and it is barren of plot. It deals not with the emotions that can take such novel and dramatic turns in the struggle of living, but with a peaceful ceremonial interlude that lends itself to reflection on the luxury of learning.

In such an interlude it would be presumptuous of any speaker to suppose that by virtue of mere seniority his words can reach deep into the private visions of graduates. The voices you are hearing now are yours rather than those of others, and one can imagine how variously you are envisaging your recent academic tour of duty. Depending on the visionary, the luxury of learning may appear as one of the continuing necessities of life, or solely as a useful means of self-promotion, or simply as useful stuff for exterior decoration, or as no more than expendable baggage to be discarded the moment one clutches his diploma.

As one who received his early education in Utah and therefore has some claim to being at home with you today, I would break in on your own reflections only to set forth why I align myself with those of you who envisage learning as a continuing necessity of life. Perhaps that is as good a way as any of paying my respects to you and my native state.

It was not far from here that I first became aware of this view of learning, a view that was to remain with me during the succeeding years as the experience of each year amplified or revised or displaced whatever learning had gone before. A child growing up in the mountains of Utah in the early part of this century could readily come to envisage learning as a necessity of life, for his everyday lessons in the schoolroom served as indispensable companions across the wild country that he roamed on the longest possible route to and from school.

There is no better way to begin one's learning than by wasting hours at a time exploring the Wasatch Range. As the wild maples turned color and the chokecherry trees took on the skeletal look of winter, one relearned each year that snow was knife-cold as well as beautiful. At the same time a child would notice that the sagebrush and the scrub oaks changed little enough to give reassurance of the coming spring. Years later these vagabond observations would give familiar meaning to Heraclitus, who had been saying only yesterday or was it some centuries earlier, that everything is forever changing and permanence is but an illusion. Of course, whispered the child to the student he had now be come. Anyone who ever lived in the Wasatch Mountains knew that by heart.

The rocky range cradled a mountain town of wooden houses, bearing the name Park City, though it was much more than a park and much less than a city. It was a lively town, where the news of the day spread quickly, though hardly a telephone had yet intruded to improve its circulation. It resounded by day with the rumble of wagons laden with ore from the great mines and met evening with candlelight and coal oil lamps and here and there an electric light. It was not freer than any other place from provincialism and prejudice and sudden gusts of crowd hysteria, but it managed to accommodate the heterogeneous speech and ways and beliefs of people who had come from all over the world to call it home. I heard English in many accents, eloquent phrases and coarse bits of speech, when I left Rossi Hill in the morning and climbed down to school from Mill Road to Swede Alley, over the China Creek bridge, and then across Main Street, with many a detour along the way.

I came to learn that the Canterbury Tales we read in school could as well have been tales of any century in any section of England or Paris or the Vienna Woods or Hong Kong or Chicago or Park City. I came much later to understand that the richness of an environment in formative years depends less on geography, whatever its impersonal influence in nurturing or blighting one's aspirations, than on occasional people such as the noble teachers who give to children alive with wonder the learning to sustain that wonder throughout their lives. From such teachers a responsive child might gain also the motivation to pursue learning into areas as difficult to traverse as the mountains that defy men to intrude upon their forbidding lands.

One recalls people in the landscape much more clearly than landmarks, the real people and the people in books. I remember little except four walls about the public school buildings in Park City. What stays in the memory of first days in school is the wonder that so many books should be so freely available. Across the long years of childhood I came to understand that the luxury of books had become a necessity, if only to yield some insight into the tumult and conflict of what we are wont to describe with unconscious irony as everyday living.

Time increases its speed as one emerges from childhood, and later memories encompass swift transitions from the booklore of Park City to the immense libraries of a university and then to the fine print of law books. Those books transported a law student back to the circuit-riding country judges of a little island west of the then Western world and east of the worlds yet to be explored, and compelled him to speculate on the analogies between then and now and also on the worlds of difference. Again the mind saw people more clearly in the landscape than the landmarks. John and John's son and Mary and their sometimes quarrelsome neighbors stood out unforgettably in the hazy countryside. Preoccupied a law student had to be with working out logical solutions to perplexing problems of metes and bounds. Even so, his mind would be stirred by the judges of long ago who came to life in perorations of logic infused with prescience enough to articulate in restrained and foresighted language, and neither too soon nor too late, legal concepts and rules that took account of the customs that had evolved from continuing imperceptible changes in human relations.

It would come to more than one such student in law, as in other fields, that the once luxury, now necessity of learning that was enriching his life might enrich it the more in proportion to how generously he used it beyond the mechanical demands of a job and without thought of personal enrichment. There would be nothing paradoxical in such a course for anyone who envisaged enrichment in terms not of acquisition but of fulfillment. It would be reward enough that the gift of learning increased itself as one spent it imaginatively and without stint in whatever working role one undertook once school days were over.

At this juncture it is likely that your own voices are in a clamor of questions and competing answers about more urgent concerns. It probably matters much more to you right now to decide how you will keep your place in the world, if you get the one you want, than to hear the conventional batch of laurel berry speech that locates you provisionally at a place called the threshold or the crossroads. At the threshold you are told to advance upon a world described much like an oyster; at the crossroads there is merely a question of which fork to use.

Such simple illusions may delight the aging who propagate them; but they underestimate the capacity of the young for reality. You know well enough, and I would not tell you otherwise, that there are no dramatic thresholds to the world of work, no suddenly visible crossroads with large signs as to where walk the people with white sombreros and where go those with black ones. Even if you were to picture yourself at such stage settings as others do, you would learn quickly that the world accords you no permanent welcome because of your diploma. In expediting your way to work it has its immediate use. It is no more than a temporary certificate of inoculation against ignorance, however, and when it becomes obsolete you will have to earn the privilege it transiently conferred by developing your own resistance against ignorance.

As a realistic lawyer I can summon no impressive evidence to support an assumption that most graduates independently develop such resistance to justify their book learning. No one dares be optimistic on that score who has lived through years when formally educated men not only joined in book burning but instigated it. Throughout the world are great centers of learning whose alumni committed treason against them. Nevertheless on such propitious days as this one, we can join in the hope that there will be at least enough graduates everywhere to count against the traitors and to stand committed to the luxury of education as a lifelong necessity.

I use the language of commitment deliberately as a key to what I understand to be the role of a responsible person within or beyond his prescribed employment. He need not be formally educated, but his responsibilities in his employment are likely to be the greater if he is, and it is fair to posit corresponding responsibilities in the wider context of his communities, large or small. Man's spans of life and leisure are steadily lengthening and his freely disposable income in the main grows larger. He can survive now even if he falls short or wide of the fittest, and survive with time and a little money to spare. It is not too much to ask that he survive as a civilized man. As television and radio acquaint him with all the worlds he once knew only on a globe, his worldliness increases at least enough so that he can see his own province in a new light. Bostonians can no longer identify themselves with the hub of the universe once they have learned how many other hubs there are. New Yorkers are no longer identified with Wall Street, when like streets back up to Wall. If Chicago is still the hog-butcher of the world, it is also a city that knows and fosters the arts as only a great city can. In the South, Atlanta is not the identical twin of Birmingham, and there are worlds within worlds in New Orleans and Nashville and Durham. Texas has been called Dallas, but who can be sure it is not San Antonio? Mobile westerners roam the earth, carrying guidebooks or blueprints in their hip pockets, while home on the range the bulldozers roam and the cranes and the planes fly high. Alaska, Hawaii, come into view, connoting old worlds as well as new states. The fixed idea, the narrow squint, prove unbecoming to people who have fifty stars in their eyes.

Given all the remarkable worlds that have opened up to us, we should have done well in keeping alive the sense of wonder that makes childhood memorable and that can insure a rich continuing education to the adult. We might well characterize as an educated adult the one who keeps that sense of wonder but has quit himself so far as is humanly possible of a child's heedless savagery. It would be pleasant to say that such adults are legion or even that an assured number of them are emerging from centers of learning to temper the adult savagery that is a horrifying excess, unredeemed by an innocence, of the wildlife of a child. The painful facts of recent history do not afford such assurance. It is learning that has served to turn man's natural cunning to the most fiendish purposes. There is no time in history when people have had it so good and so bad, largely because of learning.

One cannot charge its debasement to the centers of learning, for in this country students in the main are not only given countless opportunities for first-class education, but are able to call their minds and their souls their own. One cannot charge the debasement to their subsequent working environment, for in the main they have substantial opportunities to bring the influence of their education upon it, and when they do not the failure is theirs.

There can be no denial of personal responsibility in a country that has given meaning to personal dignity. Nevertheless we may not be able to reach with mere words of reason the grotesque failures who continue savage despite their education. When perchance they are given power, one cannot expect that they will relinquish the glory of using it if they are incapable of knowing any other. Nor can we expect to reach many of the merely slothful, whose diplomas see them safely to a job where they live happily or unhappily forever after, dead to all the worlds around them and beyond much hope of quickening.

So long as there is a society affluent enough and a land spacious enough to tolerate the excesses of the savage and the sloth's dismal waste of education, you who stand ready to use your education responsibly confront a responsibility that is more than life-size. You will be recurringly reminded that even as learning becomes for you a lifelong necessity, you in turn are a necessity to learning if it is to civilize and not debase our society. There will be people like you everywhere in the world, but you will have to match yourselves against savages often more powerful than you, and the sloths will do nothing to help you. You will have to steel yourselves against the sardonic possibility that they may even dissemble themselves with trappings of education; they may have irrevocable certificates that they have been inspected and passed by some reputable institution of learning. If they are of savage temper, they are as bellicose in what might be called their recurring fevers of alumnity as in what they are themselves given to calling their bastions and bulwarks. If they are cast in the mold of the sloth, they are as dreary in their alumnity as in the sidelines of what they call their detached bystandership.

Amid a dubious pride of bastioneers who do not mind bellowing what they think or a flock of motorfaced bystanders who do mind having it known if perchance they do think, you who have a commitment to learning may more than once feel lonely. Your commitment denies you the revelry of flat assertions and prejudices as well as the stupor of the self who has censored himself. If it prompts you to raise dispassionate questions that rise above the language of dogma and hysteria, you are bound to disturb the revellers no less than the drugged, who then look upon you as a leper with a contagiously critical mind. If you mean what you ask, and what you ask is relevant, who knows how many exclamations will fall short of their marks, and how much social insecurity will follow. If only you would go away; if only there were some way of making you go away. There ought to be a law about people like you, an everlasting law, prohibiting you from venturing forth with the plague of inquiry or even from begging to differ.

There is not, though, and that is one of the wonderful things about our imperfect but free society. There are now, and there always have been, many safeguards of free inquiry. Whatever the pressures against diversity and the recurring forces mobilized against freedom of thought and speech, there have usually been enough people to count against the storm troopers in whatever guise they operate to distribute their sly appeals to the nameless fears of gaping, goggle-eyed bystanders.

Can we be sure that there always will be? Can we be content that at times there have been only just enough people to withstand local putsches against one group or another or against an individual who happens to vary from the concept of a mannequin American so dear to a storm trooper's mind? Can we feel easy about the too frequent putsches against learning itself? Is it without significance that humiliating oaths of fealty have been demanded of teachers on modest salaries, but not of corporate managers on large ones, nor of butchers and bakers and candlestick makers? People from all over the world are asking us these questions. When they have asked them of me, I have countered with others: Why do they expect so much more of our country than of any other? Than of their own? Why are we singled out to be judged by such severely high standards? The common explanation is one that unwittingly does us honor. We are no longer the infant democracy but the ancient one, with nearly two hundred years of practice in freedom to our credit. We have constantly reaffirmed our commitment to freedom with such eloquence that others envisage a Statue of Liberty in every village in the United States. The least village is held to that ideal. It is precisely because we have given such meaning to it and are so richly able to live up to it generously that any aberration looms abnormally large. It corrodes the hopes of others, who have still to gain comparable freedom, if we fall short of ours.

The implications of the demanding faith that others have in us are plain. Any breach of it becomes news of world-wide repercussions. It matters also to our own country that we guard against disparities between what we preach and what we practice. We cannot suffer attacks on the diversity that has been the very insurance of our freedom. One need have gone no farther than Park City to learn how many worlds could be contained within our own. It was a land of Bohunks and Micks and Krauts and Cousin Jacks. In these rude labels of identification that are part of our vivid speech there is nothing evil if they are free of vicious gloss, and I should count it a loss if we were to become so self-consciously mannered as to shut the windows of the parlor and the study to the language of the street. Such labels remain innocuous so long as we value diversity. When we do not, then with brutal swiftness they are used as stones by savages, while bystander sloths look on. A child in a mountain town of Utah would learn that lesson with horror as the villagers whose kindness he had known hurled stones through the windows of a Kraut. We are at war, they screamed; and a child could not begin to know what bleakness in their own lives could have caused them to seize upon such a pretext to turn so savagely against a neighbor. The nightmare that had happened persisted. It was a nightmare that sooner or later comes to every child in the world, the terrible knowledge of what adults are under the surface who have quit themselves of learning and reverted to aboriginal fears. It is a nightmare that rides everywhere, that rides even in the shadow of courts of law.

I aligned myself at the outset with those of you who today are making your private commitment to learning as a necessity of life. It is for you to answer the question of what such commitment involves in the many worlds that will be yours, assuming that there will be enough of you to assure an age that values exploration more than destruction.

There is really no hard and fast answer. There may be now and again a time when you deem it important to raise a placard and also your voice against a barrage of placards and loud voices, and if so I hope that you will have the courage of worthy convictions. I intend no denigration of the crusading spirit by a reminder that it can sometimes degenerate into theatrics. I have some misgivings about those who chronically resort to the drama of crusade and become addicted to starring roles. More than one good cause has been demeaned by swashbucklers or pretenders to martyrdom preoccupied with self-glorification. Too often their behavior indicates a quite unheroic aversion to the painstaking articulation of forceful reasoning and to the plain hard work that better serve to counteract the pervasive evil that is a condition of life.

Perhaps more than a few of you will be lucky enough to fulfil abundantly your commitment to learning within the confines of your work. We can ask little more of those with extraordinary gifts than that they use them to full capacity. We can ask little more of anyone whose job demands intense concentration or affords little leisure than that he do his job as well as he possibly can, without treason to whatever learning he has. Any of the worlds of work, times just one such worker, is beneficently multiplied.

On the average the prospects are that you will have more free time than your predecessors knew; there is even a possibility that you will have more than you bargained for. No one asks that you improve every one of your shining free hours. It appears inevitable, however, that to a far larger extent than your predecessors, you will find yourselves with some measure of involvement in worlds beyond those of your home and your job. It can thus reasonably be expected of you that you exercise at least a responsible vote on public issues, and if need be a responsible voice. The quality of your citizenship will reflect whatever qualities you develop in your everyday living. Experience is no great teacher unless you bring critical thinking to bear on it, and critical thinking is a tragic exercise in futility if you have not the courage to match it when put to the test.

Only a small fraction of people, even in this country, have had the privilege of such an education as yours. There are always some who betray it or who let it go for naught. Against their ignoble defection you could make your education count in the many worlds in which you live, the many worlds times you.
* This essay was presented orally as the Baccalaureate Address at the University of Utah on June 9, 1963.