It is always a pleasure to recall you, even in your last but still undiminished days. Last time I saw you, you were hooked up to various tubes and electronic monitors, but your mind -- oh, your mind! -- was as graceful, your words as succinct, your manner as judicious, your spirit as luminous as ever, maybe more so. As if you were packing up, getting ready to leave, clearing your docket of anything extraneous, and preparing to make a clean break from this life, leaving your affairs in their usual order.
You were listening to my small talk, pausing before each response, as was always your way, before responding in whole sentences -- whole precise, brief paragraphs without a needless word. You replied to my every comment, just on a level one step higher. Just enough to raise the level of the conversation without losing me. Your ears were attuned to my every word while your eyes followed the ball game on the television at the foot of your hospital bed.
"Do you like baseball?" you asked. Is a bluebird blue?
"Have you ever come across a paper called 'The Common Law Origins of the Infield Fly Rule'?" you wanted to know. No, I hadn't.
"In that case," you said, "I'll see that you get a copy." You did. It turned out to be the best explanation this baseball fan had yet encountered of how the common law develops in response to each challenge. And why it is superior to the kind of codified law -- see the Napoleonic Code -- that begins to grow archaic from the moment it's adopted. Because it's too rigid to reflect the ever-flow of time and events, the flux and change that must mark the course of human events.
Put it this way: Ever pass a stop sign rising at a lonely intersection out in the country where it would take an act of imagination to picture any traffic at all? It's a safe bet that some ghastly accident occurred there. It's the same with the common law. It reflects the process of challenge and response in the real world, not an abstract legal one. The common law endures because it changes as judges interpret it, adapting to each real need in an all too real world. It reflects things as they are, usually hurtling toward us at a high rate of speed.
You aren't just missed, absent friend. But remembered and consulted in memory. ("What would Richard Arnold have to say?") Not since Learned Hand had an American jurist been described as "the greatest judge never to have sat on the Supreme Court of the United States."
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