Twelve prose poems by Roger J. Traynor (with a nod to Charles Baudelaire).

• Author: Eisenberg, Jon B.

The year 1869 brought something new to the world of literature: the prose poems of the French poet Charles Baudelaire, consisting of fifty pieces of very short prose he wrote during his last dozen years of life. They were published under the title Petits Poemes en Prose, two years after Baudelaire died at the age of forty-six. (1) Most weighed in at a page or two; a few were just single paragraphs.

A hundred years later, I discovered Baudelaire's prose poems as a teenager, shortly after publication of a then-new English translation. (2) According to the translator's introduction to that volume, Baudelaire used prose poetry as "a medium that enabled him to illustrate a moral insight as briefly and as vividly as possible," (3) for "it could make a point, without too much argument or elaboration, and it could render a poetic state of mind in images akin to Baudelaire's verse." (4) That description of Baudelaire's prose poems seemed just right to me.

A decade after first reading Baudelaire, I took a law school class taught by Roger J. Traynor. (5) Even then, fresh to the profession, I knew that Traynor was a great judge. Only recently, however, as I chanced upon one of his many law review articles and then undertook a journey through nearly all of them, have I come to realize that Traynor was also a great prose poet--a Charles Baudelaire of the law.

Would Traynor have been surprised by the comparison? I doubt it. Read this about judicial lawmaking, penned a year after he retired from the bench:

Amid so much conflict, the fiction that a court does not make law is now about as hallowed as a decayed and fallen tree. True, a court does not make law on a massive scale, as legislatures do. Nonetheless it makes law on a limited basis whenever it enunciates a new rule, or reconstructs an old one in revisionist terms, or merely extends an old rule about some dobbin to a novel Pegasus. Unlike Moliere's bourgeois gentilhomme, who was astonished to learn that his customary language indeed made prose, a modern judge is quite aware that his customary language indeed makes law. (6) And compare it to my favorite of Baudelaire's prose poems:

THE PORT A port is a delightful place of rest for a soul weary of life's battles. The vastness of the sky, the mobile architecture of the clouds, the changing colouration of the sea, the twinkling of the lights, are a prism marvellously fit to amuse the eyes without ever tiring them. The slender shapes of the ships with their complicated rigging, to which the surge lends harmonious oscillations, serve to sustain within the soul the taste for rhythm and beauty. Also, and above all, for the man who no longer possesses either curiosity or ambition, there is a kind of mysterious and aristocratic pleasure in contemplating, while lying on the belvedere or resting his elbows on the jetty-head, all these movements of men who are leaving and men who are returning, of those who still have the strength to will, the desire to travel or enrich themselves. (7) Surely Traynor realized that his customary prose made literature as well as law. He could, like Baudelaire, succinctly illustrate a moral insight in images akin to verse. That's prose poetry, and we can see the poems in his prose if we but mine the gems and set them as the poetic jewels that they are: (8)

THE VECTOR Errors are the insects in the world of law, traveling through it in swarms, often unnoticed in their endless procession. Many are plainly harmless; some appear ominously harmful. Some, for all the benign appearance of their spindly traces, mark the way for a plague of...