June 2021 Criminal Waste of Space – A Twenty-First Century Allegory

by Justice William W. Bedsworth

By the time you get to my age, you have accumulated a hope chest full of admissions against interest. You hope they won’t come up because you know they’re admissible under Evidence Code section 1230. One of mine is that I was an English major in college.1

In my defense, it looked then like the choice was between baseball, bridge, and Judy Collins for four years . . . or majoring in something else and actually studying for four years. It wasn’t a decision I struggled with.2

In fact, I can remember the exact moment I became an English major. It was the moment I got back my first college history test with a “C+” on it. I had enough of a grasp of the rubrics of academia to be confident that C-pluses were not the stuff of brilliant college careers. I can still remember thinking, “Well, that pretty much decides it: I’m an English major.” I walked out of the classroom, across campus, into the registrar’s office. Changed my major then and there.

Majoring in English was a lot like my high school summer job umpiring baseball games. I couldn’t believe I got paid for watching baseball games,3 and I couldn’t believe I’d get credit for English courses. I would have read those books for free.

Well . . . some of 'em I would have read for free. You couldn’t pay me enough to read Chaucer or Emily Dickinson. And Joyce seemed a lot like The Doors: interesting but incomprehensible.

Fortunately, my tastes are catholic4 enough that there wasn’t much I didn’t like. Except allegories. I hated allegories.

You probably don’t even remember allegories if you majored in anything useful. Allegories are extended metaphors: Long, tediously overdrawn and studiously clever tales presumably designed to convey a moral or meaning buried far beneath the surface of the fable.5

If you didn’t like Edmund Spenser’s Faerie Queene or John Bunyan’s Pilgrim’s Progress, you don’t like allegories. A critic named Erich Auerbach earned my undying admiration when he wrote—I remember the quote to this day—“every kind of serious realism was in danger of being choked to death by the vines of allegory.”

I was a “serious realism” man. I chose Jack London and Stephen Crane and Frank Norris. Twain and Lewis and Steinbeck. No allegories.

Allegories were synonymous with work in my lexicon. Anytime we had to read an allegory, I knew we’d be required to figure the damn thing out and explain it in 1,000 words or more. I knew that was work.

I thought I was done with allegories when I graduated. And I would have assumed they had gone the way of the passenger pigeon by now. I would have thought a global pandemic would have killed allegories deader than Raid kills ants.

I was wrong. Proof that allegories live on is provided by no less authoritative an entity than the Western Pack Burro ASS-ociation.6

These people run pack burro races. Mostly in Colorado. Fourteen this year, but the big ones—the Triple Crown of Pack Burro Racing—are held in Leadville, Fairplay, and Buena Vista. If you arrange to be in Creede, Colorado on June 12, you can witness the next one.

Pack burro racing has inexplicably failed to break through to the mass appeal heights of turkey-bowling or cornhole. I mean, I own a pretty good map of Colorado, and Leadville, Fairplay, Buena Vista, and Creede show up in print so small even ESPN3 couldn’t find them.

Needless to say, I began reading the article in Snow Country magazine about “The Triple Crown of Burro Racing” without any apprehension that it might be allegorical. After all, description of contests in which someone is proclaimed the “Last Ass Over the Pass” does not lend itself to much in the way of literary device.

That’s probably why the similarity between burro racing, described as “a combination of a footrace and a wrestling match” and the trial of a lawsuit eluded me at first. I just wasn’t looking for it.

And since I didn’t immediately realize that burro racing was an allegory for lawsuits, the similarity between the description of one of the sport’s foremost practitioners as a bike mechanic/ski technician who “lives in a phoneless cabin at 9,860 feet, which he reaches on snowshoes,” and former Supreme Court Justice David Souter escaped me.

Then, however, I hit this sentence and knew without a doubt what was going on: “On a boulder-strewn course at altitudes above 10,000 feet, the human runner must lead and cajole a jackass carrying 33 pounds of mining gear up and down for as much as 30 miles.”

That is as clearly an allegorical reference for a trial as any sentence I’ve ever seen. Read that sentence again and tell me if it doesn’t sound like every trial you’ve ever put on. And if you ever tried a case before me, you even know who the metaphorical jackass is.

It gets better, according to one Tom Sobal, who’s like the Babe Ruth of this sport, “The hardest part of burro racing is keeping the animal motivated.” Does that or does it not, sum up your relationship with the bench?

As someone who has both carried the thirty-three pounds of mining gear and also someone who has tried to cajole mining gear carriers up boulder-strewn paths, I can identify—indeed, I can empathize—with the guy trying to keep the jackass moving up the mountain. No matter how stupid, obstinate, or confused the poor judge . . . er, jackass . . . gets, you’ve got to keep it moving. You can’t shoot it or you’re disqualified.

On the other hand, my heart goes out to the poor jackass who—to the extent its limited equine brain is capable of linear thought—is trying to figure out why in hell you insist on going thirty miles over treacherous, high-altitude trails to Leadville, Colorado, for crying out loud. The jackass has been to Leadville, knows better than ever to go again, and also knows you’ve picked the wrong damn road, Stupid.

The jackass is also more than a little bemused by the fact it’s been loaded with thirty-three pounds of mining gear while you, the putative user of the mining gear, are clad in running shorts, tennis shoes, and a cute little singlet that says, “Jackpot Damages Race, 2021.” Even a jackass can figure out that your knowledge of “mining” is something less than encyclopedic.

And as long as we’re speaking allegorically, let me give you a tip here, folks. According to Snow Country magazine, “High-tech burro racers feed their animals specially formulated race-horse grain mixtures and electrolyte supplements.”

Trust me, folks. The burro knows.

I can assure you I have read many briefs I was readily able to identify as “specially formulated race-horse grain mixtures and electrolyte supplements.” And I knew immediately that at least one of the burro racers was going to try to lead me down the path to Leadville again.

Come to think of it, I guess I owe Dr. Carothers, my old English mentor still another apology.7 Turns out he somehow intuited my life’s work. Turns out there was a reason for studying allegories other than the perpetration of Eighth Amendment violations upon unsuspecting college sophomores: they enabled me to understand lawyers and pack-burro racers.

Well . . . they enabled me to understand pack-burro racers.



(1) I believe the case law talks about statements “so contrary to the best interest of the speaker that no rational person would make them unless they were true.”

(2) Traditionalists will insist a paragraph in which you confess to being an English major should not include a sentence that ends with a preposition. Suffice it to say that English comp is riddled with conventions it would be well-advised to do away with.

(3) Indeed, it took me twenty-five years to find another job where I could get paid for watching the contest and occasionally yelling “safe” or “out.”

(4) Small “c.”

(5) Come to think of it, they’re a lot like my columns.

(6) That is not a typo. That is their name. Their slogan is “Haulin’ Ass in the 21st

(7) And finally one that isn’t accompanied by a request for more time on the assignment.


William W. Bedsworth is an Associate Justice of the California Court of Appeal. He writes this column to get it out of his system. A Criminal Waste of Space won Best Column in California in 2018 from the California Newspaper Publishers Association (CNPA). And look for his latest book, Lawyers, Gubs, and Monkeys, through Amazon, Barnes and Noble, and Vandeplas Publishing. He can be contacted at william.bedsworth@jud.ca.gov.