Abby, this draft is a substantial structural improvement over the prior draft concerning only the duty to rescue. It's clear about the idea it is pursuing, the proportion of the development to be given to each illustration, and how they should build the reader's understanding of your idea. I think the nature/nurture opening is not very productive for the idea overall, though it has some purpose in relation to the use of your sister's case as an illustration. But moving it might be a good editorial idea, if it needs to remain in at all.

Now we need to deal with some technical legal issues in your illustrations.

1) Retrospective imposition of a duty in cases which result in criminal liability surely raises due process problems, doesn't it? The court in Pope, or any court similarly situated, cannot hold the defendant criminally liable for a failure to intervene or call the police unless that duty has previously existed. This is the same general problem that the Supreme Court dealt with in 1816 in US v. Hudson and Goodman, when it held there are no federal common law criminal offenses.

2) Your discussion of Goodyear v. Brown is misleading. The Browns are attempting to sue in North Carolina a foreign subsidiary of Goodyear, which for these purposes is simply a company in Luxembourg, about an accident occurring in France that was possibly caused by a tire, which was manufactured, sold and used outside the US. Goodyear US is a separate party, and it doesn't contest jurisdiction, so reference to its resources is irrelevant. The North Carolina court says there are sufficient contacts with North Carolina because some of the tires manufactured by the Luxembourg company in Europe have turned up in North Carolina. That's the flexible, standards-based approach to 14th amendment personal-jurisdiction issues created by International Shoe. That's not under dispute either. Everyone agrees that North Carolina would have jurisdiction to adjudicate any dispute arising from the sale or performance of those tires. That would be jurisdiction arising from the contacts with the State. The North Carolina Court had to find that those tires sold into North Carolina were sufficient contacts not for specific jurisdiction over suits related to the contacts, but for general jurisdiction over all claims.

If the North Carolina court is correct on that conclusion, then anyone in the world can sue Goodyear SA Luxembourg, on any claims they may have about anything, in the North Carolina courts, without offending the Due Process Clause, because some of Goodyear SA Luxembourg's tires wound up in North Carolina. That would be an immense decision, with amazing global consequences, and it's got to be wrong. In technical terms, it's wrong because those tires that wound up in North Carolina despite being designed for the European, Turkish or Asian market, don't indicate sustained, "continuous and systematic" contacts that would reasonably cause the company to expect to be suable there.

From the point of view of the Browns, this may be substantive injustice. But to say that it's the result of too rule-like and too little standards-based reasoning doesn't make much sense.

3) The circumstances of a life such as Caroline's will affect how any prosecutor weighs the public interest in prosecuting her. That's a standards-based process. It would also affect how any sentencing authority free to make sentencing decisions would consider the consequences of a conviction. If your point is that mandatory minimums reduce the inherently standards-based problem of sentencing to arithmetic that causes constant injustice, you are strongly supported by judges throughout the US, who privately—and sometimes very publicly—make the same point. A very prosecution-minded but thoughtful federal judge of high integrity in our neighborhood, Judge John Gleeson of the EDNY, just recently sounded the alarm again.

But if standards-based flexible reasoning is appropriate in both charging and sentencing decisions, we come up once again against the question, is it equally appropriate in the decision on criminal liability? Strong reasons, of fairness to defendants above all, motivate us to make the criminal law as rule-focused as possible. If we are acting within the law's literal scope, we can count on the basic principle of fair warning to prevent the state of mind in which we've acted from dragging us within the scope of liability. Whether and what to charge is inherently a discretionary matter, and circumstances will always count in the prosecutor's decision, for many valid reasons. So with the post-conviction decision how to deal with the offender. But should motive determine liability, beyond the requirement of knowledge or intention in the offense? If so, why?

1. "it must account for this shortcoming by bending its formal rules to adapt to specific circumstances." - I think it would help to really spell out what you mean by "account for this shortcoming." Do you mean recognize the law's relative weakness and reflect rather than try to guide the reality of human behavior?
2. "Through individualized decision-making, the law can incorporate forces greater than itself." - same comment as above - I think really spelling out what "incorporate forces greater than itself" means would go a long way.
3. in your intro - "Flexible legal standards, rather than steadfast rules, will atone for its weakness as a form of social control, thereby resulting in more justice." It's hard to get too detailed in an intro because people don't have much context yet, but I think having this sentence state your thesis more directly will launch people into the paper with a very clear idea of what you are getting at through your examples.

Good paper! I am not sure whether I agree with your thesis (I think this question is tough, though I have been retreating quite a bit from the rigid formalism I embraced only recently), but I think you make your point well.

-- AlexKonik - 18 Jun 2012

Scale versus Ruler: Achieving Greater Justice through Malleable Legal Standards

Cohen’s asserts that “legal concepts are supernatural entities, that courts fashion doctrines that fail to square with morality or logic. Concededly, these rigid rules-"transcendental nonsense"-make sense in certain circumstances; yet in others, application of such rules leads to grossly unjust outcomes.

Duty to Rescue

The no-duty rule, excusing bystanders who fail to help someone in need, proves repugnant in some situations. for example, in Pope v. State, a woman took a mother and child into her house, and witnessed the mother beat her newborn to death without interfering. She was acquitted of all criminal charges because she did not fall neatly into one of four legal categories of people responsible for another party. In this case, applying the rule led to a highly logical, and undoubtedly immoral, result.

Convincing rationales, however, weigh in favor of not imposing a duty to act. Firstly, in certain circumstances, acting would harm those that the duty was imposed upon. For example, the law correctly refrains from imposing liability on someone for not jumping in front of a bullet for another. Furthermore, broad imposition of liability would require courts to interfere with inherently personal choices; using the aforementioned Pope case as an example, enforcing a duty would compel bystanders to intervene in parent-child relationships. Finally, in some settings, imposing a broad duty can lead to discrimination. In situations in which there are many bystanders, such as crimes in crowded shopping malls, a duty to rescue would give a prosecutor too much discretion, as there would be no legitimate way to decide which parties to prosecute.

The tension in this legal area is palpable: both imposing a broad duty and refraining from imposing one can have tragic effects. The court's current baseline-that of no duty to rescue-is possibly the best solution, but the court should be elastic and willing to impose a duty when the particular situation merits one. Scenarios demand a case-by-case analysis, which courts evade through a capacious rule.

Personal jurisdiction

In matters of personal jurisdiction, a more flexible approach would also engender fairer outcomes. In Goodyear v. Brown, for example, two boys were killed in an automobile accident in Paris. Their parents, citizens of North Carolina, were barred from bringing suit there based on the ephemeral notion of “minimum contacts.” Goodyear, a multi-billion dollar corporation, has the means to send lawyers anywhere to try a case; a trial in North Carolina would hardly burden the company. Meanwhile, it would be an onus for the plaintiffs to file suit in foreign states or nations. Even if extremely wealthy, they undoubtedly have less financial freedom as the corporation. Furthermore, after losing two sons, requiring the plaintiffs to attend trial(s) far from the potential solace of their home and community could prove an extreme emotional burden.

The Supreme Court could have weighed the relative hardships posed to Goodyear versus those posed to the Browns under the facts. Rather than grounding its decision on an evanescent basis-"minimum contacts"-the court instead could opt for individualized decision-making, the balancing of pertinent facts to reach a more just outcome. The court has drawn strict lines, which, though sensible in some situations, are unfair in others.

Individualized Legal Proceedings will Breed Justice

My sister Caroline was born a year before me. While I was an obedient child, Caroline was my natural antithesis. She was charming and precocious, winning the affection of classmates one day and offending them the next. Unfortunately, her behavior became more erratic over time. Countless mental health professionals and psychotropic pharmaceuticals only marginally dimmed the vicissitudes of Caroline’s personality, which ultimately manifested itself in self-destructive behavior and, most recently, a debilitating narcotics addiction. A Cornell graduate and high school valedictorian, she's clearly someone who knows the illegality-and ensuing repercussions-of forging prescriptions and doctor-shopping. However, the law was no match for Caroline's biology, the bipolar and schizophrenic tendencies that have afflicted her throughout her life. We were raised in a close-knit, loving family; mine and my brothers' mental and physical well-beings are a testament to that. Yet some things are uncontrollable. Nature simply trumps nurture.

Legal entities have contacted my sister. I hope that, if a trial occurs, the court would take her individualized situation into account, rather than issue a harsh mandatory sentence, ardently supported in my home state of Virginia. This addiction is a result of her biology and psychology. The law should heed that reality by treating her more sympathetically than someone without documented mental health problems or a rich doctor forging prescriptions for pure financial gain. Conversely, the law should afford her less leniency than, for example, a severely autistic person. Through individualized decision-making, the law can incorporate forces greater than itself.

Aristotle said "the law is reason free from passion," evidenced through its rigid application of rules. The law should take a more individualized, thereby sensitive, approach. Currently, particularized underlying circumstances aren't considered, but decisions are based on transient principles, "transcendental nonsense." Because the law is a weak form of social control, paling in comparison with biology, social norms, and other forces, it must account for this shortcoming by bending its formal rules to adapt to specific circumstances.

(Eben-as you mentioned in class, I would like to keep editing my work over time.)

You don't actually mean "Good Samaritan Law." That would involve imposing liability on those who offer help but do so negligently, or in a fashion that causes further harm. Here you are discussing a duty to rescue, or a duty to interfere with crimes, or to call the police. One question you might have wanted to ask if you were going to announce that the existing situation is senseless or immoral, is how wide the resulting duty should extend. If someone in an urban setting is attacked or killed, do you prosecute everyone within earshot who didn't call the police? If not, how do you justify selecting the particular people you prosecute? With respect to your child abuse case, do you actually interfere in every case of parental overdiscipline you come across in life? Current law charges some parties with that duty, or at least a duty to report, given their social rules and presumable training. A broad imposition of duty, which presumably also implies limited immunity from liability for the resulting actions, might cause more harm than it prevented. As you yourself say, the question of duty will require resolution in light of facts in particular cases, so what is under discussion here is whether the rule should begin from an imposition of general duty subtracted from in individual cases, or a general imposition of no duty, added to legislatively or by judicial determination under common law adjudication. In the criminal law, the principles of power restraint and fair warning certainly seem to militate strongly against general duties, while—as you say—conversation over a general civil duty to rescue can be waged with great fervor on both sides, and is.

I'm not sure why the mourning is relevant. Surely the claim is not for the sorrow of the mourners, but for the harm done to the people who lost their lives. Or why bringing suit where the parents live is so obviously important. Is the rule that relatives should always be allowed to sue where they live, even though the action they are bringing is not for the vindication of their own legal interest? Or that wrongful death actions should always be maintainable in the domiciliary jurisdiction of the deceased? "Where" that harm happened is indeed a matter of mere metaphysics, but this is about whether the explanation for the decision about where to sue is logical. If North Carolina extends its law of personal jurisdiction to the 14th amendment limit, it is more than likely it can exercise jurisdiction over the lawsuit. But why, for example, if a child from Guam is killed in an accident in a mom-and-pop store in North Carolina, would you subject the defendants to the burden of a lawsuit in Guam? Your real point was about the balance of hardships between Goodyear and the Brown parents. So why are you talking about where the injury "really" occurred (which is also nonsense), rather than stating that in all fairness and justice, considering the balance of the hardships and the nature of the interests, it is reasonable for Goodyear to be sued in North Carolina?

In shaping the legal concept of personal jurisdiction, the court has drawn strict lines which make sense only in certain cases.

Good samaritan law and personal jurisdiction are just two of the doctrines which, applied in some scenarios, are not only unjust, but reprehensible. In class Eben brought up efficient breach, and how it ignores promise-keeping, a socially valuable trait. The takings clause, which mandates a government need only to compensate a victim when there is a full diminution in value is yet another example. According to current takings law, reducing the value of a home from $1 million to $100 does not require compensation under the fifth amendment; the property must be rendered entirely useless.

That depends on how the reduction in value occurred. And you haven't explained how you meet the objection on the other side. Is it ethical for property-owners in a society to be given veto power over all social regulation, through a requirement that government compensate fully everyone whom the regulation costs? When Holmes said that "regulation could hardly go on" if all regulatory diminutions in value were compensable, he was not wrong. You had at least to explain how you determined this is not a problem.

This rule makes no sense considering basic supply-and-demand market economics, nor is it ethical. Moreover, it leaves the court as ultimate arbiters of the value of property, when certainly market valuation is out of their area of expertise, and, in itself, an assessment rife with mere preponderance.

This isn't meaningful. You should drop it. The value of "just compensation" in judicial proceedings in the US is a fact matter: fair market value determined (at the plaintiff's desire) by a jury.

This is not a warranted conclusion. Whether law is a weak or strong form of social control doesn't depend on whether the results seem logical or ethical to you. If the results in all the classes of cases you discuss where what you think you want them to be, the strength of the law as social control would not have changed at all.

This draft benefits from vigor of argument, but the breadth and precision are not equal to the vigor. Your examples are themselves subject to more careful analysis: the two not actually drawn from Cohen have not been argued out with due attention to the arguments on the other side.

Swimming in transcendental nonsense

-- By AbbyCoster - 15 Feb 2012

Felix Cohen’s assertion that “legal concepts are supernatural entities which do not have a verifiable existence except to the eyes of faith,” makes more sense than anything else I’ve read thus far in law school. That may be because much of what I have read makes no sense at all. Most legal doctrine doesn’t square with common sense, with my innate hunches, because, like Cohen says, the law is neither based in morality nor logic.

I’m not a saint, but I consider myself a ethically principled person. I don’t steal, I don’t cheat, I don’t hurt other people. I also think I am logical-a left-brained, sudoku-addicted finance major who actually liked studying for the LSAT logic games. I applied to law school to learn and ultimately enter a field grounded in logical decision-making and the pursuit of righteousness. Yet, so many classes have made me uneasy, in the sense that the doctrines being taught are grounded in neither.

Good Samaritan Law is void of morality

Each course has taught me doctrines I completely disagree with on moral grounds, yet the decisions crafting these doctrines are rife with justifications for them; like Cohen says, they are only based in “the eyes of faith.”

Both civil law and criminal law excuse bystanders who fail to help someone in need. for example, in Pope v. State, a woman took a mother and child into her house, and witnessed the mother beat her newborn to death without interfering. She was acquitted of all criminal charges. The court based its reasoning on the fact that Pope did not fall neatly into one of its four categories of people responsible for another party. This legal rule is clearly one, in line with Cohen’s proposition, that isn’t based on logic or morality. It seems highly logical, and undoubtedly moral, for someone to assist an innocent baby from being battered, whether by taking the child, restraining the mother, or, to avoid harm to self, calling the police.

Courts base the “no duty to rescue” idea on the basis that sometimes, a person may endanger him or herself by attempting to save another. Under this rationale, the rule concededly makes sense in some situations; it seems ludicrous to hold a person liable for not jumping in front of a bullet or moving car for another, regardless of their relationship to that person. However, should that same person be free from duty while watching a child drown in a pool as they leisurely stroll past? The court fashions a “one-size-fits-all” rule, while different scenarios demand a case-by-case analysis. The jurisprudence of good samaritan law is abhorrent in that it places paramount importance on judicial administration, while being completely divorced from morality.

Many civil law doctrines have no rational basis

In civil proceedings there are also doctrines devoid of ethical or logical considerations. The modern conception of personal jurisdiction is one of these “supernatural entities,” based on nothing but judge discretion. In Goodyear v. Brown, for example, two boys were killed in an automobile accident in Paris. Their parents, citizens of North Carolina, were not allowed to file suit there based on the ephemeral notion of “minimum contacts.” Goodyear, a multi-billion dollar corporation, has the means and financial ability to send lawyers anywhere to try a case; a trial in North Carolina would hardly burden the company. Meanwhile, these parents, reeling from the death of their sons, cannot bring suit where they live. Other jurisdiction cases mandate that a case can be tried where the injury occurred. Just because the boys were killed in Paris, can’t the injury have occurred in their home state to a degree? Is that not where their family and friends mourn their death? In shaping the legal concept of personal jurisdiction, the court has drawn strict lines which make sense only in certain cases.

Good samaritan law and personal jurisdiction are just two of the doctrines which, applied in some scenarios, are not only unjust, but reprehensible. In class Eben brought up efficient breach, and how it ignores promise-keeping, a socially valuable trait. The takings clause, which mandates a government need only to compensate a victim when there is a full diminution in value is yet another example. According to current takings law, reducing the value of a home from $1 million to $100 does not require compensation under the fifth amendment; the property must be rendered entirely useless. This rule makes no sense considering basic supply-and-demand market economics, nor is it ethical. Moreover, it leaves the court as ultimate arbiters of the value of property, when certainly market valuation is out of their area of expertise, and, in itself, an assessment rife with mere preponderance.

Don't Start Believin'

Aristotle said “the law is reason free from passion.” The amoral character of legal principles showcases the truth of this statement. Most, if not all, doctrines I have learned in law school consist of rules that are too rigid. Granted, they do make judicial proceedings easier and faster. However, they fail to recognize people and situations on an individual basis. The social outcomes of decisions are not considered, and instead these decisions are based on transient principles. We need to stop being the “eyes of faith” that pay homage to these rules. Without our faith, these concepts will lose relevance, and hopefully morality will find its way into the law.

If legal concepts continue to be so removed from ethical and reasonable considerations, the law will definitely continue to be a weak form of social control. With the law in its current formalistic state, maybe that is not such a bad thing.

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