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Law Practice

Nov. 5, 2018

Limitations of immortality

Over the years I have participated in so many panel discussions that I lost count. But the panel I was on last week made an impression … on me. I cannot speak for the audience.

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


Courtesy of Justice Gilbert.


Over the years I have participated in so many panel discussions that I lost count. But the panel I was on last week made an impression ... on me. I cannot speak for the audience. Not sure whether this is relevant, but the audience was a group of federal prosecutors. I spoke about People v. Zammora, 66 Cal. App. 2d 166 (1944), the case that grew out of the so-called Zoot Suit riots in Los Angeles during the 40s. The speaker who introduced me recited a short version of my biography, and then, after quickly calculating the math in her head, remarked that I had been a judge for 43 years. The audience broke into laughter. I said, "What's so funny?" And they laughed louder. And so did I. What else could I do? An age discrimination lawsuit was out of the question. During those few moments of hilarity, it occurred to me that at age 43 Mozart had been dead for 9 years. And the poet Shelley had been dead for 14 years. And I was the only one in the room who was alive when the Zammora case was decided.

By now the perceptive reader will have guessed that this column is about ... oh, I gave it away in the title. Of course the title is a sacrilegious parody of Wordsworth's immortal (sorry) poem "Intimations of Immortality from Recollections of Early Childhood." To boil it down to a simple analysis, the poem is about getting old and dying. Would get a "D" if I wrote that on an exam in an English lit class. Of course that assumes there is a university these days that teaches English literature. I left out the stuff about the soul and kids communing with nature and the divine, "Heaven lies about us in our infancy." It is when we get older that things begin to suck, I mean, get depressing. But through memory we can derive benefit from the glories of youth, like those hours of "splendor in the grass." Not sure that resonates with kids brought up in the Bronx.

Incidentally, there was a movie "Splendor in the Grass" in 1961 starring Natalie Wood and Warren Beatty. At that time I was also alive, in a manner of speaking, and saw the movie. The screenplay was by the noted playwright William Inge. At the end of the movie, after years of separation, Deanie (Wood) meets her now married high school love Bud (Beatty), who has a child. They exchange pleasantries, and realize they cannot go back to where they had once been. As she drives away with her friends, she recites to herself these lines from the poem: "Though nothing can bring back the hour/Of splendour in the grass, of glory in the flower/We will grieve not, rather find/Strength in what remains behind."

I recall something unusual that did not happen at the end of the film. It was common in those days for the words THE END to appear at the end of the movie. Not so with this film. The theme of the movie follows the theme of Wordsworth's poem. There really is no end. It's about immortality.

By the way, I am writing this column on Halloween night. On a superficial level, immortality and Halloween have something in common. I have turned off all the lights in the house. Don't want to be disturbed by the brats ringing the doorbell all night. That's what happens with grumpy older people trying to grasp the meaning of immortality, with mortality hovering overhead. It is haunting.

I am not sure what to make of immortality. Some argue that immortality enables artists to live on, you know like the cliché "The immortal Shakespeare." Sure I get it, but does Shakespeare? And judges achieving immortality is fanciful. You can analyze their opinions and rave or not rave about them, but the judges are not there to argue back. Come to think of it, even living judges are mostly constrained from defending their opinions to the public. They have to rely on law professors who more often than not are the critics.

Our model judges like Holmes and Cardozo are "immortal" only in a figurative sense. They live on in our minds. I am a great admirer of Justice Cardozo. But after rethinking the Palsgraf decision, I am convinced the dissent by Justice Andrews was right. Cardozo's recitation of the facts is vivid, and memorable, but the legal reasoning convoluted and unpersuasive. His "immortality" does not allow him to challenge my thesis, or develop a counter argument in another case.

In the past I looked for more tangible ways to achieve immortality. I have written columns about taking a cue from philosopher Jeremy Bentham who founded the University College in London. In his will he directed that his body be preserved and placed in a box called the Auto Icon. He was to be seated in his usual chair "in an attitude ... when engaged in thought in the course of time employed in writing." A professor I knew who taught at the university opened the Auto Icon and introduced me to Professor Bentham. Quite a genial fellow I must say. It is rumored that he is wheeled into sessions of the College Council.

Years ago I thought of doing the same with my body and attending writ and pre-oral argument conferences after my demise. But I have concluded that's too creepy, even if scientists could discover how they mummified Lady Dai, the best preserved mummy ever. I read that her skin is soft, and all her organs are intact. Her legs bend. She still has her own blood, type A, and she has her own hair and eyelashes. She lived during the Han Dynasty 206 BC.

Courtesy of Justice Gilbert.

Modern technology may have opened the door a little wider for me to achieve immortality without the presence of an embalmed corpse. I recently read about reviving dead singing stars digitally through a technique that produces a holographic image of the deceased celebrity. Deceased stars like Billie Holiday, Michael Jackson, and Roy Orbison are appearing in sold-out concerts. With this technique, I could preside during oral argument in perpetuity. Maybe even take off the day while I am alive.

But I have given up on these superficial quests for immortality. Why trouble oneself? Once you are gone, you are gone. Speculation about Bentham's desire for the Auto Icon ranged from a sense of self-importance, an attempt to explore questions about life and death, or, what I prefer, a practical joke.

Wordsworth, appropriately named, expressed in his poem that in later years as we look upon our youthful lives, we gain insights and joy in living with those memories. And intimations of immortality may ease the burdens and the unique uncertainty that accompanies us in later years. But we are alive, so let us concentrate on the living and what happens now.

If you have not voted yet, tomorrow is your opportunity to vote and spread the word to vote for the Supreme Court and Court of Appeal justices on the ballot. They are the reason California has such an outstanding judiciary. And they are the last safeguard of our liberties and rights as citizens. And that is not an intimation.


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