The Try-Works



2800 North Central Avenue, Suite 840
Phoenix, Arizona 85004

I call this section The Try-Works because I’ll try here to capture some fleeting notions from time to time, and try to hang on long enough to render them into words. I might have called it Musings or Notions — or Ephemera for that matter, for only the ephemeral may be found here. But I borrowed my title instead from Melville (see, thinking that the old customs officer, if he could roam the docks today, might take some amusement from the notion that a reader could press a button, launch on cyberseas, and instantly take up conversation with Ishmael on the Pequod in The Try-Works chapter of his great work. (I should acknowledge, though, lest some reader feel compelled to point it out, that the function of a try-works was to render blubber. There is risk in any pun.)


Whose Words These Are I Think I Know

In late November 1962, Robert Frost came to Dartmouth College to read, or as he put it, say his poems to our freshman class. Many of us had memorized and recited Stopping By Woods on a Snowy Evening and The Road Not Taken in high school. Some of us the year before had watched on television as the wind-buffeted old poet recited The Gift Outright in the January chill of the Kennedy Inauguration. And by November 1962 all of us had learned we had one thing in common with our speaker; he too had entered Dartmouth as a freshman, though in a different century, and though he’d left before the year was out. “I have a special fondness for this college,” he told us; “it’s the first institution I ran away from.”  He won our hearts with that.

He was an old man, 88, and had an old man’s reedy crackling in his voice. But as he said his poems in his vernacular way, making conversation of their metric lines, his voice took force and held us and carried us through the fading afternoon. Between readings, he’d stop from time to time to talk about a poem, sometimes pointedly, sometimes with whimsy. After reading Stopping by Woods on a Snowy Evening, he teased us about the interpretive techniques we might be learning, “People have made that out to be a death poem,” he said. “They’re all doing that to poems. I do that too when I’m provoked or mad…. Or when I’m up to something.”  At such moments, as we laughed along with him, we saw a boy’s face flash out from his aged one and could imagine the freckles that had given way to liver spots and the dark unruly hair that now was snow.

Two months later Robert Frost was dead.  We were the last class he said his poems to, the last to laugh with him and wonder at him, and many of us have told of it with pride and gratitude in the years since.


Frost did not always discount the interpretation of poetry. He was an artful man who elsewhere wrote, “Poetry provides the one permissible way of saying one thing and meaning another.” But on the day he met with us, Frost added, “Sometimes you write a poem and you know it’s straight goods and they can’t do anything to it.” He called such poems “foolproof” and said “you just have to take them as they are.” I’d put The Self-Seeker in that category ( It is a poem I assigned to my law students every year that I taught Torts, and it is surely the only work by a major poet about the settlement of a workplace injury case.

The poem takes place in a New Hampshire or Vermont mill town in a boarding house at the bedside of a mill-worker whose legs and feet are severely injured. He was snagged and pulled to harm by an erratic leather conveyor belt at the mill. He does not yet know if he will walk again, though it is certain that, if so, he will be severely hobbled. He awaits a company lawyer coming up from Boston to have him sign a settlement for $500. His friend Willis arrives unwanted to talk him out of settling for so slight a sum. The injured one (unnamed in the poem) is or tries to be philosophical; Willis is angry. Much of the poem is their dialogue. Here is part of it (the injured one speaks first):

“Everything goes the same without me there.
You can hear the small buzz saws whine, the big saw
Caterwaul to the hills around the village
As they both bite the wood. It’s all our music.
One ought as a good villager to like it.
No doubt it has a sort of prosperous sound,
And it’s our life.”
“Yes, when it’s not our death.
“You make that sound as if it wasn’t so
With everything. What we live by we die by.”

Soon the lawyer arrives, and Willis brings him upstairs along with the fourth character in the poem:

A little barefoot girl who in the noise
Of heavy footsteps in the old frame house,
And baritone importance of the lawyer,
Stood for a while unnoticed with her hands
Shyly behind her.

The girl Anne has found two Rams Horn orchids and brought them for the injured one’s inspection. He is an expert on the wildflowers of the region; his pleasure was to roam the hills collecting specimens for a monograph that he will now not finish – “your flowers, man,” Willis implores him, “you’re selling out your flowers,” – and he has taught the child to seek and gather rare flowers and still leave enough for seed. The two discuss what she has found, what she has left undisturbed, and what else she has seen in the woods. Eventually the lawyer puts a stop to it:

The lawyer wore a watch the case of which
Was cunningly devised to make a noise
Like a small pistol when he snapped it shut
At such a time as this. He snapped it now.
“Well, Anne, go, dearie. Our affair will wait.
The lawyer man is thinking of his train.

Why did I ask my Torts students to read this poem each year? In part, perhaps, because I hoped they might linger for a moment over Frost’s mastery of verse and line. The poem is so conversational one might almost read it as a short story without noticing its meter. Yet a strict meter is there. Much of it, including the passage of the lawyer and his watch, is in iambic pentameter, 10 beats to the line. Elsewhere Frost heightens the narrative effect by permitting himself some 11-beat lines. “I’d as soon write free verse,” he once remarked, “as play tennis with the net down.” Much as lawyers who seek to be creative in their legal writing must, Robert Frost sought the freedom of his art within constraints of form.

More concretely, I assigned the poem because it captured a cruel moment in Tort history, before the adoption of workers’ compensation laws, when industrial accident victims had to sue their employers in order to recover damages, yet were generally barred from any recovery under a doctrine that deemed them to have assumed the risk, by accepting employment, of any dangerous conditions of the workplace and the job. Frost published The Self-Seeker in the collection North of Boston in 1914, just as states around the country were beginning to improve the lot of industrial accident victims by enacting workers’ compensation laws. (New Hampshire adopted its workers’ compensation act in 1911, Vermont in 1915).

Still more concretely, I assigned the poem because, unlike most of the Torts cases that we read in class, it conveyed intangible elements of the victim’s loss that are so vital to the presentation of a damage case. The injured one would be denied his one great pleasure—to walk the hills for wildflowers—for some 40 more years of life. Willis knew, and the reader knows, the force of that great element of his loss. I also assigned the poem because it shows so economically yet memorably how we lawyers can be seen by others. “The baritone importance of the lawyer” is a line I hoped my students might take to mind.

And finally I suppose I assigned it because I’m still under a spell the old poet cast on a long-past November afternoon. And, too, because The Self-Seeker is the “straight goods.” See for yourself; read it; the link above will take you there.


One last Frost story: Some years ago, one of our sons entered a poetry contest sponsored by his school district; he was then in second grade. Students of all grades submitted poems that they had written; and school by school and grade by grade, first, second, and third place winners were chosen, others were selected for honorable mention, and all of the selected poems were assembled into booklets sent home to the students and their families. Our son was among the winners for his school and grade, which delighted him and pleased his parents; and when we received our booklet, I thumbed through it to see what other students had written. Some of the poems were bright and cheery; some were disturbing windows into troubled lives. But one poem, submitted by a fifth grader, particularly caught my eye. It began:

I have wished a bird would fly away
And not sing by my house all day.

The poem was Robert Frost’s A Minor Bird, though of course not credited as such. You can find it at I don’t know whether Frost, who published his first book of poems at 39 and won four Pulitzer Prizes in the years that followed, ever entered a poetry contest in his student days. But A Minor Bird achieved only minor success–a second place ribbon–for his surrogate in Phoenix Elementary School District #1. I like to think, though, that Frost would have chuckled at this outcome. After all, it was he who wrote, “Forgive, O Lord, my little jokes on Thee, and I’ll forgive Thy great big joke on me.”



When I open an illustrated novel—a treat from time gone by—I do as I have always done: I scan the illustrations from front to back to see what characters await me. When I roamed the stacks of the Cornelia Young Public Library as a young reader in Daytona Beach, the drawings whet my appetite for the tale. Through them I found my way into The Count of Monte Cristo, The Connecticut Yankee in King Arthur’s Court, David Copperfield, and other favorites of those years.

I retain some fondness for David Copperfield, for it was the first big book I loved. When I read it at 11 or 12, I was so caught up in the long arc of the story and so taken with its characters that, when their story ended, unwilling to leave them, I turned from the last page to the first and read it through all over again.

The Dickens enchantment lingered, and in the mid-70s during a visit with my parents, who by then had relocated to Pittsburgh, I asked the owner of a used-book store in Squirrel Hill to keep an eye out for a complete Dickens set. Toba, who loved her trade, soon found a set in good condition and called my parents, who bought it as a 30th birthday present for me.

The set was published in 1900 by Peter Fenelon Collier & Son. Its 30 volumes are bound in faded red cloth, and the bindings are lettered in gold. The pages of many were uncut when I got them, and some volumes are uncut still. Copious pen and ink-wash drawings by unnamed artists capture the eccentricities of Dickens’s characters and the drama (or melodrama) of his tales.

A few weeks ago I was reading a play set in contemporary Pittsburgh when a passing mention of an old, closed bookstore brought the Squirrel Hill bookstore—now closed—to mind. My thoughts turned to my Dickens set—some years had passed since I’d last dipped into it—and to a mystery within it that haunts me from time to time.  Old books can hold surprises, not all of which were placed there by authors, illustrators, or publishers.

In one volume, for example, a bookmark nicely decorated with a raised, overflowing basket of violets urged me in violet print to “Use Mennen’s Violet Talcum Toilet Powder, Admitted To Be The Best.” On the back, alongside a drawing of a well-groomed gent whose handlebar mustache drooped toward his stiff upraised collar, Mennen’s touted its talcum as “entirely different from all toilet, infant and complexion powders in principle and purpose.  It is free from starch, rice or other irritants so common in ordinary powders and so dangerous to the beauty and health of the skin.” The powder could be had from any druggist or by mail for 25 cents.

Elsewhere, a yellowed scrap torn from a daily paper featured a full set of false uppers, gums and all, and guaranteed a 22k gold crown to anyone who brought $1.00 and the ad to Davis Dental Parlors the next week.  An adjoining advertiser assured men suffering loss of sexual power, “I care not who has treated you for this condition and failed, as I have taken hopeless cases whose very life had been drained out of them and restored to them all manly vigor and strength.”

My mystery bookmark, however, was not these but rather a proof strip of four photographs. Two young women sit together photographed from the waist up, both with dark hair swept into pompadours of the “Gibson Girl,” turn-of-the-century style. Both wear summer dresses of loose-cut, white fabric; one has a ruffled collar, the other a stiff, straight, pinned collar and a watch pin on her shoulder. In three photos, the women look directly at the camera, and in one of these, the woman with the watch holds a parasol behind their shoulders. In the fourth they are turned slightly toward each other and smile into each other’s eyes. I think of the women as sisters though a family resemblance is not strong. No writing tells their names.

I first came upon these mystery sisters in Bleak House some years back (a book lawyers should read). I no longer remember if I found the photo strip as I reached the page it marked or if it slipped out as I thumbed through illustrations at the start.  In either case, it startled me.  There they were as once they were but who? I could imagine them preparing for the photographer, selecting their dresses, pinning up their hair, pinning on the watch, laughing over the parasol as they undertook to capture that moment of their time.

What of it? Why dwell on it? Their photos may preserve a moment of past time, but not a moment of my time. And I have ample personal reminders how much of my time lies behind me. My parents are gone now. Within our family, almost all of their generation is gone.  The task of organizing my own family albums extends before me, the photos moving and painful to contemplate, and I face it only a little at a time. Little by little, people and places I remember succumb to time’s eraser.  (On a recent trip to Daytona, I discovered that the Cornelia Young Public Library is gone now, though the old building that housed it is historic and the town must find some use for it.)  Times change. The two women captured in a photo strip more than 100 years ago are nothing to me.

I suppose, though, that their very anonymity gives the photographs their power. (They are also easier to contemplate than the youthful photos of my own departed.) They once were something to someone and their photos belong in someone’s album, but whose? With no way to trace them—my Dickens bears no bookplate—I return them to the bleak house of a book where they have reposed for more than a century and may rest for decades more before another reader in another time turns a page and finds them and muses over the blankness of their page. There they are as once they were but who?

When we’ve wandered all our ways, said Raleigh, Time shuts up
The story of our days—Raleigh beheaded, his life like a book.

From the poem Book by Robert Pinsky, Selected Poems (Farrar Straus Giroux 2011)




Variations on a Theme by Hoagy

I had learned a lot that semester, but had another lesson still to learn. It was late fall 2002 and I was giving the last class of my first course of my first year teaching law. As I neared retiring from the bench, I’d been invited to teach at ASU. Eager to teach what I knew and reexamine what I thought I knew, I devised a seminar in statutory interpretation. “This course will be deeply theoretical,” I told my students, “but also intensely practical. We’ll study the range of theories of what judges should do when interpreting statutes, and we’ll examine the range of things that judges do do when interpreting statutes. As a thinker, you can adopt any theory of statutory interpretation that you please, but as a lawyer you’ll need to master a full range of interpretative techniques. Whether they fit your theory of interpretation or not, you’ll need to know and use whatever techniques can help you win your case at hand.”

The semester had been rich in lessons — at least for me. The first had been offered by one of my sons near the start. “Dad,” he said in the gentle tone the knowing sometimes take with the clueless, “if you see that your students have their laptops open and are typing away, don’t assume they are tuned in and making notes of all you say.” This was sound advice. Two other lessons were that I had set an ambitious goal for a two-credit seminar (one two-hour session per week) and that the number of available credits might affect how much effort a student chose to put into a course. My course had no exam; grading depended almost entirely on a seminar paper; and I had set deadlines for both an encouraged first draft and an optional second draft, offering to make extensive comments and suggestions on any drafts my students submitted by those deadlines. To my surprise, not a single student took me up on the optional second draft, and a few skipped even the first draft, content to take their grading chances without seeking my preliminary draft review.

But now it was the last class, and with the final paper deadline approaching and exams pending in other courses, we were unlikely to squeeze more interpretative juice from the cases we’d been reading. A class treat seemed in order. And why not one that could illustrate an essential theme of the course — the fluidity of interpretation? A perfect ending, it seemed to me, would be to play four widely differing interpretations of a familiar song.

The song I chose was “Stardust.” Aside from being a personal favorite, it was listed by Guinness as the most recorded of all popular songs. I burned four versions onto a disc. The first was the most obscure; in the album “Two of a Mind,” the jazz saxophonists Paul Desmond (alto) and Gerry Mulligan (baritone), accompanied only by bass and drums, launched into a set of improvisations so distant from the melody that even one aware what they were playing had to strain through several choruses before hearing any familiar element of the song. Next was Clifford Brown’s version, a rich set of trumpet improvisations with the melody close enough to the surface that I expected some if not all of the class to recognize it. The third was Willie Nelson’s straight, unembellished vocal; at its first strains, everyone, I knew, would recognize what we’d been hearing. And last we’d hear “Stardust” as sung by its author, Hoagy Carmichael, accompanying himself on the piano. After this evocative finale, I’d remind the class of Karl Llewellyn’s dictum that the “quest” of statutory interpretation “is not properly for the sense originally intended by the statute, the sense sought originally to be put into it, but rather for the sense that can be quarried out of it.” (See Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to be Construed, 3 Vanderbilt Law Rev. 395, 400 (1950)). And on that high note, contemplating how much material an imaginative interpreter might find to quarry, we could exit, hopefully humming Hoagy’s tune.

The class did not go quite as expected. Not surprisingly, no one recognized the tune as Desmond and Mulligan jammed their way along its borders. “That was pretty obscure,” I acknowledged as we moved to the Clifford Brown version, “but some of you may recognize it now.” Wrong. No light dawned. And then I unleashed Willie … and again all stares stayed blank. No one in the class, it seemed, had ever heard that song before.

What to assume and what not to assume was an excellent final lesson, and one I had repeated chances to study through my years of teaching law.


Judicial Humor

In a recent published order, Judge Alex Kozinski rejected a complaint that a judge had engaged in misconduct by making jokes about a candidate for public office. “The mere fact that a statement takes the form of a joke,” Judge Kozinski wrote, “does not render it misconduct; humor is the pepper spray in the arsenal of persuasive literary ordnance: It is often surprising, disarming and, when delivered with precision, highly effective.” In Re Complaint of Judicial Misconduct, Order No. 10-90016, Judicial Council of the Ninth Circuit, Feb. 2. 2011.

Highly effective? Yes, sometimes. Timing and delivery certainly help. It also helps if the intended joke actually amounts to humor. As for disarming, well, perhaps, though the metaphor of pepper spray lends a connotation to “disarming” quite distinct from that of alleviating hostility with humor. (My grandmother, whose pinpoint delivery from a vast arsenal of Yiddish ordnance would have satisfied the Kozinski standard, once compared a member of our family to salt in the eyes and pepper in the nose. But the subject was not present to be disarmed.)

Humor is risky, however, especially for judges, who get to play to a captive audience. Years ago, when I had just been appointed to the bench, a friend who preceded me by a year told me two things I would quickly notice: “No one will want to have lunch with you, and everyone will laugh at your jokes.” The laughter is seductive. It leads some who are not funny to think they are. And it leads some who are sometimes funny to stretch for the laugh when they should not.

One morning, when I had been a trial judge for a year or so and had recently rotated to a family court assignment, I had taken the bench to hear a motion. Counsel were present with their clients, a middle-aged couple whose second marriage had turned to ash, and one of the lawyers had risen to pose a preliminary question, probably on a matter of scheduling. Of the exchange that followed, I remember only that he said something that suggested a play on words and I went for it, probably intending to be disarming. The lawyers had begun to reward me with the polite chuckle that is customary at such moments, when the wife said to her lawyer in a whisper I could hear 12 feet away, “Does he think this is funny!”

I didn’t want to have lunch with myself that day.