House Arrest

Now I know what it’s like. I am under house arrest. Yes, I know I am not the only one. But I have a probation officer. Her name is Barbara. She is tough and monitors my every move. It’s not a picnic. Her rationale: She loves me. It’s mutual. Imagine the many defendants on probation with probation officers who don’t love them. But I keep busy. I have gained expertise in cleaning toilets. I also assist changing sheets and dusting. But despite my herculean efforts, my probation officer never seems satisfied. Take cleaning toilets for example. I think I am good at it. My probation officer is stingy with praise, but encouraging, if you would call a long exhale with eyes looking upward encouraging. Once I went out without first checking with my probation officer. We need not go into the details of the violation hearing. After the plea of guilty with an explanation, the probation officer was on Amazon checking out ankle bracelets. Question: Is anyone reading this column during this crisis period of the pandemic crisis period? Doesn’t matter. I am still writing it. What else do I have to do? Plenty. The Second District Court of Appeal is open electronically. Staff and justices are in touch with one another via email. Research continues and so do writ conferences. In addition to my constructive duties at home, I, like so many others, am reaching out to friends with whom I have lost recent contact. I called my old (well, we both are old) law school classmate Joel Wallock. We reminisced about our experiences in law school so many years ago, 1960 to 1963. Yikes! I still remember the first day in class at what was then called Boalt Hall in Berkeley. Dean William Prosser, the famous Prosser on Torts, greeted the new class with these encouraging words, “Look to the right; look to the left. One of those persons will not be here next semester.” I looked to the right and then to the left and went into shock. I was sitting on the aisle. Speaking of shock, reminiscing with my classmate and friend Joel brought back memories, some of which I would like to forget. Example: My tax professor who knew the tax code and regulations by heart. The first day of the second semester he asked a question relating to a problem we had touched on during the remaining minutes of the last day of the tax class of the previous semester. That previous class had been taught by a different professor who displayed a rare quality I greatly admire: mercy. Several weeks had passed before the second semester began. I know you are way ahead of me. The tax class assembled for the first day of the second semester. I don’t have to tell you that the first question the tax virtuoso professor asked related to the problem briefly discussed at the end of the previous semester. The classmate who was first in his class and later clerked for five Supreme Court justices in five countries and rewrote the constitutions of seven emerging nations, taught at 17 law schools, and rewrote the Restatement of Law on six different subjects did not know the answer to the question. I do not remember the problem. How could I? One must understand the problem to remember it. But I do remember the professor’s interrogatory following his statement of the problem. “How would you resolve this conundrum… Mr. Gilbert?” The sighs of relief of my classmates reverberated throughout the classroom like the sighs of souls in Dante’s purgatory who were spared the descent into the inferno. What followed was not pretty. My cat, now deceased, was more compassionate with a mouse he once caught and “played” with until the coup de grace. My feeble attempts to rescue the poor mouse were as futile as my attempts to parry with the relentless questions of my tax professor. Robert Burns, who penned the poignant “To a Mouse, On Turning Her Up in Her Nest with the Plough,” would understand. This lying-in-wait ritual continued until mid-semester when my savant tax professor hit me with an extremely complicated corporate tax problem. I nailed it. I responded with alacrity and insight to his hypotheticals that required nuanced responses. He complimented me. Dante’s Paradiso shined its heavenly light upon me. The nods of approval throughout the classroom subsided as my classmates realized I would be spared for the remainder of the semester. One of them would be next. I gained a valuable insight from this experience which I pass on to you: studying pays off. Interesting that 40 years later this incident stays in my mind. My initial failure is far more interesting than a success story. Maybe that explains why Dante’s Inferno is so much more interesting than his Paradiso. But traumatic experiences spawn creativity. My role as sparring partner with my tax professor must have been the motivation to write a piece for an underground newspaper in Berkeley. I think it was called “Slate.” The piece I wrote was a parody of Kafka’s Metamorphosis. The paper titled the article “Student Bugged While Taking Exam.” I wrote under the ingenious pseudonym Arturo Gilberto to hide my identity. The disenchantment over my experience in tax class may have contributed to my decision not to attend my law school graduation. It turned out that the faculty graduation speaker was my tax professor. And his topic was a refutation of my article. Enough past reflections. Now I will get back to reading The Plague by Albert Camus. Hope this provided a respite from other concerns. As I mentioned earlier, our courts are functioning as best they can and appellate courts are functioning electronically. We are deciding cases. When this crisis ends, and it will end, the way we conduct business will change dramatically. And we will reestablish the in-person intimacy we need with other people. I urge you to take all precautions to protect your health and safety and to continue to work and be productive to the extent that is possible. To quote the Second District’s fearless and calm Administrative Presiding Justice Elwood Lui, “This is a time, not for paralysis, but for effort and ingenuity.” P.S. I do not have to ask who is our most revered lawyer, editor, and composer. Today is our dear Selma Smith’s 101st birthday. This is the day that the number of years she has graced the world with her presence exceeds by one the number of compositions she has composed. Barbara and I sang Happy Birthday to her over the phone. We traded several quips. We love you, Selma. Happy Birthday.