General : the Role of Judges

ELEMENTS OF THE LAW

Professor Strauss

Fall 1999

GENERAL : THE ROLE OF JUDGES

1. Common Law

• J responsibility to create and maintain a legitimate body of workable common law
• Must do so carefully
• Future judges will have to rely on it: hard to apply?
• Individuals will have to follow it: hard to figure out? Too general/overinclusive?
• Individualized justice vs. general application and predictability

1. Statutory Laws

• L responsibility to create laws
• J responsibility: interpret? Articulate? Specify? Build up/broaden? Or just “apply?
• L can amend – take too long?

PRECEDENT, FORMALISM & LEGAL REALISM

1. CHANGE V. CONSISTENCY

1. Arguments to change a rule

• Fairness

-Old rule might have an unjust result due to unforeseen circumstances

• Update outdated rule

-Old rule might no longer be legitimate or fair due to changed public sentiment

-Society circumstances/technology changed?

• Flexibility of law

-Formal, uniform application of rigid rules may become oppressive

• Lack of applicability or decisive precedent. Fill in holes
• Hindsight – articulate emergence of principle
• Judicial activism, “I see it now!”

1. Arguments to keep a rule the same

• Slippery Slope – too much change will make law in general unpredictable
• Incoherent, complicated web of rules are unworkable for judges

• Too many exceptions hollow rule out?
• Judicial restraint, humility to past
• Past decisions may be misused/re-interpreted to justify change
• Predictability, certainty, consistency of law as stated and applied

1. PARTICULAR CASE DECISIONS V. GENERAL RULE DECISIONS

1. Particular Cases Alone

1. Why Good?

• Individualized fairness for each instance
• Recognizes complexity of world
• Flexibility of justice
• Individual discretion of judges
• Judge’s role = only to decide cases before them

1. Why Bad?

• Hard to follow, unpredictable

-people’s circs might be different. How do cases apply to them?

• Hard to enforce

-police, etc. won’t know who has done wrong, right

-May lead to over/underinclusive arrests/enforcement

• Judicial resources?

-People may see uncertainty as a reason to sue (or appeal)

-Too many people demanding “justice” in their case

• Complicated web of rules

-Insiders/experts will only know all laws

-Hard for everyone to keep up w/a growing laundry list of rules

• 3rd Party effects

-People don’t have incentive to act “right” – there is no case against them in past

• Eventually accomplish the same thing a general rule would have anyways

1. Particular Cases as Precedent

1. Why Good?

• Activism

-Systemic activism

-Gives future judges freedom to do justice in each case

-(But this allows individual indulgences/discretion)

• Constraint

-Systemic constraint

-Make as little law as possible in each case to prevent future injustice

-Forces judges to just keep eyes on one case

-Limits discretion to just one case

1. Why Bad?

• “Hard cases make bad law” -- Winterbottom v. Wright (Rolfe)

-Bad precedents come from close cases

-Circumstances of a particular case may arouse sympathies of a J

-A rule which applies for one particular, narrow set of circumstances is difficult to apply to other cases

• Complicated web of individual rules becomes unworkable in application
• Too much discretion allowed in each case

1. General Rules Alone

1. Why Good?

• Predictability

-Simple, general rules are easy to follow

-People don’t need to be legal experts or insiders to know whether their acts are allowed

• Consistency

-Broad rules won’t have to be changed as often

• 3rd party effects

-People will make sure to act according to the letter of the law

-Product makers will have incentive to make safe, good products

• Judicial Role

-Legislatures can’t make laws for everything. Judges fill in holes

1. Why Bad?

• Overinclusion

-Too many people will fall under broad rules

• Underinclusion

-In a generally permissable activiey, doesn’t allow for the circs of a case to get someone who really is doing wrong

• Unpredictability

-Creates uncertainty as to how the rule will really be applied

-3rd party effects =

Too much litigation – judicial resources constrained

Incentives to act decrease – people afraid of being sued, stop driving carriages or making diving boards

• Judicial resources

-Expansion of suits – over-inclusion of circumstances will give people too much ground for litigation

• 3rd party implications for expansion of suits

-may ruin incentive for product if liability is too broad, like diving boards

• Judicial role

-Only legislatures should make broad rules of law

1. General Rules as Precedent

1. Why Good?

• Predictable

-Easy for judges to apply

• Judicial restraint

-Judges deciding particular cases bound by previous rules made governing the category

-Judges can’t give in to discretionary whims

1. Why Bad?

• Over/Underinclusive
• Unjust or harsh results may result

-Strict application to all individual cases may force unjust decisions

• Exceptions will be made

-Judges will have to make exceptions to do justice

-If we allow this case to create an exception, what will result?

-Many more exceptions requested?

-Too many exceptions hollow out the rule

• Unpredicatability

-Every rule is subject to interpretation

-Exceptions may be made which don’t acknowledge true rationale

-Will everyone get exceptions? No one knows

C. Common Law Development: Generalizing from Particular Cases

1.Evolutionary development of common law

a. General

• “Common Thread” (Cardozo in MacPherson v. Buick)

-See real rule underlying lots of past decisions emerge

-Articulate principle underlying collective reasoning

-Create general rules from particular cases

b.Example:

Product Liability and the “Inherently Dangerous” Rule: cases leading to MacPherson

• Winterbottom v. Wright

-Stage Coach

-No 3rd party product liability

• Longmeid v. Holiday

-Lamp

-3rd party liability if inherently dangerous

• Thomas v. Winchester

-Drugs = inherently dangerous

-3rd party liability if inherently dangerous by nature/ordinary use

• Loop v. Litchfield

-Fly-wheel = not inherently dangerous

-3rd party liability if inherently dangerous by nature but not if tested properly

• Lossee v. Clute

-Boiler = not inherently dangerous

• Statler v. George Ray Manufacturing

-Coffee Urn = inherently dangerous

-3rd party liability if foreseen use is inherently dangerous when the product is negligently made

• MacPherson

-Car

-Inherently dangerous rule replaced – unworkable, too hard to apply

-New rule: Foreseeability of injury test:

3rd party liability if 3rd party use is foreseeable and is constructed negligently in a way that will cause 3rd party injury, regardless of inherent danger

-Articulating underlying principle of past cases

-Reinterpretation of past cases in light of subsequent developments

-Still trying to frame his rule in precedent. Not acknowledging change of rule

1. Role of Judge

a.Why is Judicial Activism Good?

• Acknowledgement of reality

-All decisions are activist bc all decisions are subject to interpretation

-Better to acknowledge activism than to hide it

• Precedents may fail

-Past decisions may become unworkable

-Past decisions may be leading to harsh or unjust results

• Society’s Conditions Change

-Judges must continuously update past decisions to ensure that they are in keeping with

society’s changing conditions

• Predictability

-Trying to stick religiously with old rules but making them come out “right” takes away predictability of precedent because the underlying rationale is hidden

-Articulate underlying principle to encourage predictability for people to follow and judges to apply

• Limited in nature

-Not needed often

-Most cases are not significant enough that activism matters

• Judge’s role

-Common law is to articulate clear rules and standards

-Rules may seem clear but need clarification in application

-Too many different rules may exist – one principle needed

b.Why is Judicial Restraint Good?

• Common law theory = adherence to precedent
• Predictability

-Keep rules constant so people and judges can plan and apply

• Judge’s role

-J must only decide case at hand according to past rules, not create bodies of law

-J role is to apply law, not create it. “Just do law”

-Legislatures only should articulate broad rules if needed

• Humility

-What makes judges think they can decide something better than someone else?

• Rule of law, not rule of men

-Minimize discretion

-Js are subject to bias, preferences, ideals, agenda

D.WHY FOLLOW PRECEDENT?

1. Collective wisdom

• Knowledge, experience & judgement of many built up over time and reflected in precedent
• Better than individual judge w/ single perspective
• Humility, defer to the many. Don’t be arrogant

1. Predictability

• People need to be able to plan ahead, shape affairs
• Even if old rule is wrong, don’t make sudden changes

1. Equality/Fairness

• Similarly situated people should be treated the same

1. Consistency -- Legitimacy of System

• Maintain respect for laws & the system

1. Why NOT to follow precedent?

1. Precedent may be mistake of the past – don’t preserve and perpetuate errors/injustice
2. Don’t blindly rely on old rules
3. Where did rule originate? Accident? Good?
4. Judges avoid precedent covertly anyways

• Lessons of past may be ambiguous

• Can search for a tradition or “rule” that justifies what they want and rely on it

• To preserve legitimacy, must acknowledge what they are doing

1. Sudden and drastic changes may be warranted

• I.e. abolition of slavery in State v. Post

1. FORMALISM

1. Law as a Science

1. Systemic

• Rules established, observations made (cases decided), anomalies build up around them, then they break down
• New explanations needed, new rules discovered
• Create a workable framework to organize cases

1. Methodology

• Particular facts and intuitions like scientific observations
• Can’t know right and wrong right away. Must experiment
• Law is the formal application of rules to specific cases

1. Goals

• Trying to articulate an underlying, discoverable theory : Truth & Justice

1. LEGAL REALISM

1. Law as Dynamic

• “Certainty generally is illusion, and repose is not the destiny of man” (Holmes)
• Practice of law is not just a straightforward application of rules

-Even practical, problem-solving approach requires choices and judgments

-But can be done in a principled way

1. Judges as Scientist-Legislators

-Keep goals of law in mind

-Keep social science/statistics in mind

-Be impartial… but be careful…

-Does its extreme de-humanize law?

1. Law not 100% Scientific

• Judge’s intuitions, values, choices inevitably are a part of decisions

COERCION, CONSENT & CONTRACT: THE NATURE OF FREE CHOICE

(Freedom of Contract and its Limitations)

A.POLICE POWER OF STATE

1. Promote General Welfare of Society

• Health and safety, general welfare implications of K (Lochner)

1. Protect Society from Externalities

• Social costs of individual decisions may outweigh benefit of individual free choice (Green v. County School Board)

1. Protect Individuals from Power Situations

• K may seem to be free choice of each party, but “consent” may not be true consent (Harris v. Forklift Systems)

1. Protect Individuals from Own Limited Decisionmaking Capacities

• K may seem to be best choice to individual, but choice may not be rational (Lochner)

B.WHY FREEDOM OF CONTRACT?

1. 14th Amendment

• No deprivation of life, liberty or property w/o due process of law

1. Individual Autonomy/Right to Self-Determination

• Both parties want to enter into K, should be free to do so

• Hold individuals responsible for own actions
• Allows individual dignity (vs. paternalism)

1. Both Parties Benefit

• Why limit something from which both parties benefit?
• Individuals will negotiate for what is in their best interest
• Individuals in society are complex

1. Externalities/ Third Party Effects

• Other parties not involved may benefit from K too
• If other parties don’t benefit, it doesn’t matter: the K belongs to the 2 parties only

1. Efficiency/Perspective

• Individuals in best position to make decision
• Rulemakers far away shouldn’t judge what is good for them
• Individuals make rational, efficient decisions in own interest

1. Laissez-faire Market

• People should be able to bargain for what they want, and give up what they want (even individual dignity/rights)
• Economic freedom of individual
• Let people earn $ premiums for risk/hazard
• 2 assumptions implicit here

-Complete information re: risk & consequences of risk

-Individual valuation of risk reflects valuation of risk to society

1. Deciding where to limit invites discretion/arbitrariness

• Why bakers? (Lochner)

• Legislature biased, have alternate interests

• “Public Welfare” not being articulated

• Interest groups are fighting for particular groups – power wins

1. Paternalism

• Many arguments for limiting freedom of contract are truly paternalistic
• There are instances in freedom of K where people will make poor decisions, suffer

• Pure freedom of K not 100% optimal in effect
• BUT, it’s better than gov’t limitation!
• Gov’t may be affected by all decision making processes listed below, too. Why are they better/smarter than individuals?
• The best way to confront uncertainty is liberty

C.WHY LIMIT FREEDOM OF K?

1. Externalities / Third Party Effects

1. Does K affect other parties not involved?
2. Obvious 3rd party effects?

• Society/environment affected?

1. Moralisms?

• Intangible 3rd party effects
• 3rd parties are psychologically upset/disturbed by K

1. How to weigh 3rd party cost v. K’s 2-party benefits?

i.e. costs to women of indv. woman contracting out of sex harrassment liability

1. Incapacity

1. Poor people tend to be less educated, can’t make as good of decisions
2. Some people, individuals in general maybe, can’t make decisions that are good for them

1. Human Limitiations

1. People not 100% rational in calculating decisions and assessing risks
2. People have irrational fears and aversions to certain things

1. Information Failure

1. Party may not have enough information to understand their situation

• May lack statistics (ie how may bakers died in the US last year? How many coal miners injured?)

• Can’t make informed decision

1. OR party may think he has enough info, but doesn’t

• How will party know what is enough info upon which to base a decision

1. Risk may mean there is not enough info available

• This makes problem worse

• How to assess risk magnitude, weigh uncertainties w/o full info?

1. Asymmetrial Information

1. One party may know more about situation than the other
2. I.e. how valuable an employee someone is/would be v. her threat of lawsuit/his of liability
3. Can lead to irrational, unoptimal K

1. Bounded Rationality

Even with all information/stats, people don’t make 100% rational decisions

1. Availability

• Look around and see the norm, not the exceptions
• Everyone looks healthy and safe, assume that is the case

1. Representativeness

• If no examples are around, risk doesn’t seem real

1. Characteristic Mis-Proportionality

• Can’t calculate risk accurately
• We have biased/faulty ways of working things out in our heads

• Example: ST benefits may carry more weight than LT costs bc they are more immediate (i.e. ST economic gains v. LT oppression)
• Think, “Not me”

1. Redistribution

1. Poor people more likely to accept unsafe and unhealthy conditions for more money
2. Thus, poor people more likely to be harmed by such conditions
3. Social costs

• these people will be less productive in the LR
• may become disabled, incur welfare and workers comp. costs

1. State must protect them
2. Can this be accomplished? Unsure

1. Collective Action

1. Social norms/trends are powerful and hard to overcome
2. People may not want to be “the first one” to speak up, to assert selves
3. People may not be able to effectively negotiate for their own best interest, bc they will be replaced by others who don’t assert themselves (Lochner?) (sex harassment)
4. K limitations may articulate and effectuate what people would really want to choose if they could

1. Adaptive Preferences

1. Oppressed people may stop wanting what they can’t have
2. Too much stress to constantly desire something unattainable
3. Only applies to adaptation to unjust circumstances (not just life hardships/disappointments)
4. Examples:

• Stockholm Syndrome: hostages didn’t want to be freed. Terrified. We must force them to accept freedom. ST individual safety outweighs individual freedom of choice

• Green v. County School Board, Slavery: Blacks don’t want to go to white schools, slaves don’t want to be freed. Force them to accept choice/freedom (?). LT society benefit outweighs individual freedom of choice

1. Monopoly

a.Some market relationships do not offer options

1. Crystallization

1. Some things (i.e. power differentials) are too diffuse & intangible to address in contracts (i.e. sex harassment in employment contracts)

• MacKinnon

1. Trying to address or articulate something unusual or deviant from norm could brand you as a troublemaker, even if you are justified

1. Non-Commodification

1. Some things cannot/should not be bought or sold

• I.e. dignity (sex harassment), reproductive rights (Surrogate Parenting Assoc. v. KY)
• Human dignity (Marxist alienation of the individual laborer as a commodity)
• Relationships, friendships

1. Having to choose between two things may be unfair. Sometimes we don’t want a choice (i.e. sex harrassment, buying v. selling blood, etc.)
2. Slippery Slope

• You argue, too, that occupational safety and health hazard cannot be contracted away…
• But these are accepted commodities in our society: “Hazard Pay”

1. Commodification changes the nature of a thing/act

D.COERCION

1. Coercive Nature of Contracts

1. Most contracts are somewhat coercive, pressure party in one way or another
2. Most contracts have power imbalances, that’s why we have contracts
3. Question is the legitimacy of pressure imposed

1. Options

1. Coercive pressure for useful purposes might be OK?
2. If choices are changed in order to force one decision or another, that is coercive

• I.e. choose between sentence and human drug tester
• If sentence is harsher than it would be w/no choice, coercion!

1. Otherwise, indv. is free to choose – in fact, they are being given more options! (even if don’t seem desirable options, they are still options)

1. Bargaining Power

• Coercion has more effect on the powerless. Powerful can negotiate

• Powerless = unskilled, replaceable, numerous people (i.e. bakers)
• Powerful = those with leverage (i.e. employers), those with skills (fewer in #, less supply, less easily replaced) (i.e. lawyers)

1. Exploitation = abuse of lack of power

• Minimum wage & maximum hours needed for the poor/powerless
• Otherwise, the wage will be driven down and the hours worked up
• People would be forced to accept a condition of very long hours and low pay

1. Economic Coercion

• “My poverty, but not my will, consents”

THE DILEMMA OF RULES AND DISCRETION