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Law in Contemporary Society
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Scale versus Ruler: Achieving Greater Justice through Malleable Legal Standards-- By AbbyCoster - 15 Feb 2012 "Nature versus nurture" was coined by Francis Galton in the 1860s. Since then, debates have waged regarding whether one's heredity or life experiences has a greater impact on his/her behavior. Twin studies, among others, indicate that our biological nature has more significant impact. Though sociology and interaction with others influence on our behavior, we are ultimately, perhaps fatalistically, controlled by our genes. The law lags behind all of these factors in its ability to shape behavior. To cope with this problem, the law should be more adaptable to individual circumstances. Flexible legal standards, rather than steadfast rules, will atone for its weakness as a form of social control, thereby resulting in more justice. 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 RescueThe 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 jurisdictionIn 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 JusticeMy 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.) Abby, I like your thesis in this paper a lot. To me, it reads: the law should be more of an attempt to reflect reality and accomplish just results than an attempt to shape reality with futile, absurd results. Your proposed path (standards over rules) reminds me of Carol Rose's Crystals and Mud article. I think you make your point very well by starting and ending with strong biological points, filled in with concrete non-biological examples. My recommendation for your paper is to address your thesis more directly, assuming I have accurately recognized your thesis. I think that adding or reshaping a sentence in three places can help make your thesis very directly stated:
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" character on the next two lines:
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