Law in Contemporary Society

The Whim of a Judge

-- By AlexanderBernstein - 10 Mar 2017

One summer a hundred years ago, some boys went swimming in the Harlem River. They were diving off of a wooden springboard that jutted out from the property of a railroad company. As one of the boys was preparing to dive, a rotting crossarm collapsed, freeing an electrified cable that flung him into the river and to his death. The mother sued the railroad for negligence, and the trial court promptly threw out the case because the boy’s use of the diving board constituted a trespass, and so the railroad owed the boy no duty of care.

Cardozo wrote an opinion reversing the lower court’s decision. By the lower court’s logic, a boy swimming in the public water beneath the diving board could recover, but the boy standing atop the board could not. He rejected the distinction as arbitrary:

“We may be permitted to distrust the logic that leads to such conclusions.” Hynes v. N.Y.C.R.R. Co., 231 N.Y. 229, 234 (N.Y. 1921)

As we should. I don’t think Cardozo is especially brilliant for reaching this decision (though the two courts below him and half of the Court of Appeals did not). Nor do I think he was especially compassionate towards children (Cardozo reaches the opposite conclusion in a similar case Adams v. Bullock, 227 N.Y. 208 (N.Y. 1919)).

What interests me is the statement about distrusting the court’s logic. I wonder: How often do we begin with our conclusions? One intuitively knows that it isn’t okay to let electrified wires fall on children. More to the point, I know that that boy’s mother should be able to recover, and the laws one way or the other are important only to the extent that they lead to that result.

From Cardozo’s statement, one may deduce that all judicial opinion writing is a charade, a rationalization concocted after the real and instantaneous thinking has already occurred. Cardozo purports to base his opinion on, “considerations of analogy, of convenience, of policy, and of justice.” In other words, on none of these things in particular. Maybe his conclusions, and our own conclusions, are based on something more personal and fundamental.

But why should judges be able to foist their personal beliefs, often ignorant and pernicious, on the whole of the public? Many see the Supreme Court of the United States as a political mechanism like any other, and anyone who has read Bush v. Gore knows that this argument is not entirely without merit. Can we somehow fashion the law to protect us from the vagaries of a judge’s will?

The answer would seem to be no. Any person subject to the power of the state is subject to the will of another person, whether that will is expressed through the judiciary, the legislature, or the executive. We like to pretend that a law passed by the legislature is the expression of the people’s will, but legislative agendas are set by a few select individuals, and the yea votes of a hundred or even a thousand party members cannot cure it of this deficiency.

If a the law necessarily entails that one must exercise his will over another, then a judge is best suited to do so. Judges are the ones who interact directly with the parties whom the law affects. They know the facts of a particular case and have to reconcile those facts with the fictitious abstractions of the law (reasonability, proximate cause, commission versus omission). While legislatures are fact-finding bodies, judges are typically able to avail themselves of the research and findings available to the legislature, and there is little reason to believe legislators are more familiar with the practical effects of the law than judges.

In reality, the problem arises not from legislatures and judges trying to take power away from the other, but from neither wanting to exercise that power. Legislatures often give wide latitude to judges when drafting a statute so as to allow some leeway in applying it to a specific case. And judges, especially on appeals courts, frequently defer to the legislature to make any substantive change in law.

Furthermore, legislatures often look to scholars (not the will of the people) to tell them how to draft laws. Widespread legal codes like the almost universally adopted UCC and the influential MPC were drafted by select groups of legal scholars, not legislatures. If there is a way for the law to obviate the need for individual judgment calls, it is probably through heavily researched, standardized codes like these. Though these codes have their flaws and their implementation varies based on jurisdiction, they are probably the best way for the law to protect us from the caprices of a given judge, or at least better than the a law drafted by the legislature.

But even if the perfect code were drafted by scholars and passed by a legislature, there would invariably be that last judgment call made by the presiding judge, by one person pronouncing what another person has to do. And this is more of a safeguard than it is an unavoidable flaw in the system. Justice would not be better served by actuarial tables than by individuals. As Cardozo demonstrates, it sometimes takes a human being to disregard all the legal abstractions and declare what is plainly right and what is plainly wrong. And so while we may be able to largely eliminate the vagaries of a judge’s will from the implementation of the law, such a result would ultimately be undesirable.

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r4 - 26 May 2017 - 22:48:15 - AlexanderBernstein
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