Lucky in your judge

Theoretical Inquiries in Law

Volumn 9, Issue 1, 2007, Pages

  Waldron, Jeremy ^a  

^a NEW YORK UNIVERSITY   (United States)

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EID: 38049112720     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1173     Document Type: Review

References (82)

1. See Sanford Kadish, The Criminal Law and the Luck of the Draw, 84 J. CRIM. L. & CRIMINOLOGY 679 (1994);
2. Benjamin Zipursky, Two Dimensions of Responsibility in Crime, Tort, and Moral Luck, 9 THEORETICAL INQUIRIES L. 97 (2008).
3. See Jeremy Waldron, Moments of Carelessness and Massive Loss, in PHILOSOPHICAL FOUNDATIONS OF TORT LAW 387 (David Owen ed., 1996).
4. A. Bell, Twelve Men and True! Bah Humbug, 147 NEW L.J. 1857 (1997).
5. The odd thing is, however, that trial by ordeal was supposed to eliminate the element of luck surrounding any human attempt to infer a conclusion from circumstantial evidence, by substituting for that sort of judgment the infallible - albeit inscrutable -judgment of God. See JOHN H. LANGBEIN, TORTURE AND THE LAW OF PROOF 5-8 (1976).
6. See J.C. Smith & D.J. Birch, Case and Comment - R. v. Ponting, 1985 CRIM. L. REV. 318 on the refusal of an English jury to convict civil servant Clive Ponting for a clear violation of the Official Secrets Act despite being ordered directly by the judge to convict him.
7. See also Teresa Conaway, Carol Mutz & Joann Ross, Jury Nullification: A Selective, Annotated Bibliography, 39 VAL. U. L. REV. 393 (2004).
8. Strickland v. Washington, 466 U.S. 668, 694-95 (1984).
9. See the arguments in Nancy Marder, The Myth of the Nullifying Jury, 93 NW. U. L. REV. 877 (1999)
10. and in Andrew D. Leipold, Rethinking Jury Nullification, 82 VA. L. REV. 253, 312-24 (1996).
11. William Glaberson, In Tiny Courts of New York, Abuses of Law and Power, N.Y. TIMES, Sept. 25, 2006, at Al.
12. Id.
13. William Glaberson, Delivering Small-Town Justice, With a Mix of Trial and Error, N.Y. TIMES, Sept. 26, 2006, at Al.
14. See id.: "Mr. Betters decided to appeal in county court. But he could not persuade any lawyer to take the case; several, he said, told him it would not be in their interest to take on a town justice."
15. See Id.: "An unfamiliarity with basic legal principles is remarkably common in what are known as the justice courts, legacies of the Colonial era that survive in more than 1,000 New York towns and villages. For generations, justices have hailed them as 'poor man's courts,' where ordinary people can get simple justice with little formality or expense."
16. I am grateful to Chaim Gans, Complaining About Being Unlucky with Your Judge (Jan. 5, 2007) (comment prepared for the conference on Moral and Legal Luck, the Hebrew University of Jerusalem and Tel Aviv University, on file with Theoretical Inquiries in Law), for insisting on this point.
17. FA. HAYEK, THE CONSTITUTION OF LIBERTY 142, 153 (1960).
18. Gans, supra note 13, has suggested that an unpredictable outcome is a matter of moral concern only if it is unjust. I do not accept this. In a community whose members disagree about justice, the importance of my being able to predict what will happen to me as a result of the operation of the law should not vary from one perspective to another, depending on the observer's views about justice.
19. However, JOEL FEINBERG, Noncomparative Justice, in RIGHTS, JUSTICE AND THE BOUNDS OF LIBERTY: ESSAYS IN SOCIAL PHILOSOPHY 265, 285-86 (1980) argues that noncomparative injustice tends to be more serious than comparative injustice.
20. Gans, supra note 13, argues that the principle of treating like cases alike can form the basis of a moral complaint about a person's treatment only when that person's treatment is unjust. This seems plausible, but it may gain some of its plausibility from an implicit assumption that it is clear to all concerned what is just and what is unjust. As I suggested earlier, supra note 15, treating like cases alike may have an importance of its own in a community in which people (especially officials) are in disagreement about what justice requires. In such a community, like cases' being treated differently might be a matter of concern to us quite independently of our judgments about the justice or the injustice of the treatment of either or both of the cases. I take it that this is the implication of Ronald Dworkin's argument concerning the (relative) independence of justice and integrity as virtues of a legal system. See RONALD DWORKIN, LAW'S EMPIRE 166 (1986).
21. Sometimes, however, we worry about failures of "equal protection" as between citizens of different states in a federal system. A worry of this kind is expressed by Ronald Dworkin, contemplating the prospect that, if abortion decision-making is decentralized in the United States (made no longer a mater of federal law), fetuses might be treated as constitutional persons in some states but not in others. See RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 113-14 (1993).
22. Gans, supra note 13, argues that a positivist need not accept that all law ought to be a matter of contingency. Gans claims that a positivist, like anyone else, will wish for good law; he will not relish the prospect of a purely happenstance relation between the demands of law and the demands of morality. This is certainly true. However, even if he values a coincidence of law and morality, the positivist will still acknowledge that whether or not a moral truth is embodied in law depends necessarily on the contingency of the enactment of a law with a given content. And he may well say that this is a good thing: we are better off with legal requirements dependent on a contingency like clear enactment than we are in a situation where the existence of a law has a necessary connection with morality, but people disagree about what morality requires or what the appropriate necessary connection is.
23. JEREMY WALDRON, LAW AND DISAGREEMENT (1999).
24. It is possible to make law-by-voting look even more arbitrary than this. Among students of "public choice," Kenneth Arrow, A Difficulty in the Concept of Social Welfare, 58 J. POL. ECON. 328 (1950) is commonly taken to have shown that neither majority-decision nor any other method of aggregation can guarantee that a coherent group preference can be constructed rationally out of a variety of coherent individual preferences. Under certain conditions, the aggregation method may yield the result that the group "prefers" option X to option Y, Y to Z, and Z to X, leaving it completely arbitrary where in this cycle we take "the view of the majority" to rest.
25. THOMAS HOBBES, ON THE CITIZEN 124 (Richard Tuck & Michael Silverthorne eds., Cambridge Univ. Press 1998) (1642) (ch. X, para. 13).
26. Once again, I disagree with Chaim Gans's suggestion, supra note 13, that these phenomena can only be a matter of moral concern to the extent that at any given time, the law in force at that time is unjust. Constancy is valued morally in a way that is independent of concerns about justice and valued particularly in a society whose members are well-known to be divided about justice.
27. LON FULLER, THE MORALITY OF LAW 80 (rev. ed. 1964).
28. THE FEDERALIST NO. 10 § 44, at 232 (James Madison) (George W. Carey & James McLellan eds., Liberty Fund 2001).
29. See, e.g., Ronald Dworkin, What is Equality? Part 2: Equality of Resources, 10 PHIL. & PUB. AFF. 283 (1981);
30. ERIC RAKOWSKI, EQUAL JUSTICE (1991);
31. Elizabeth Anderson, How Should Egalitarians Cope with Market Risks?, 9 THEORETICAL INQUIRIES L. 239 (2008).
32. See text accompanying supra note 13.
33. For the separability thesis, see H.L.A. HART, THE CONCEPT OF LAW 185-86 (rev. ed. 1994).
34. JOHN RAWLS, A THEORY OF JUSTICE 3 (rev. ed. 1999); Jeremy Waldron, The Primacy of Justice, 9 LEGAL THEORY 269 (2003).
35. DWORKIN, supra note 17, at 1.
36. See also supra note 19.
37. JOHN LOCKE, TWO TREATISES OF GOVERNMENT 350-51 (Peter Laslett ed., Cambridge Univ. Press 1988) (1689) (II, §§ 124-25).
38. Locke suggests that thirdly, there also exists the good, or bad luck of getting someone to help enforce whatever natural law judgment is applied. Id. at 351 (II, § 126).
39. JOHN RAWLS, POLITICAL LIBERALISM 54-58 (rev. ed. 1996).
40. For an argument that the burdens of judgment apply as much to reasoning on the matters of justice that natural law addresses as to reasoning on the issue of what makes life worth living, see WALDRON, supra note 20, at 151-52.
41. See also the discussion of Lockean legislation in JEREMY WALDRON, THE DIGNITY OF LEGISLATION 63-91 (1999).
42. RAWLS, supra note 32, at 58.
43. LOCKE, supra note 31, at 358-60 (II, §§ 136-37).
44. See id. at 360 (II, § 137) (emphasis added).
45. JOHN CHIPMAN GRAY, THE NATURE AND SOURCES OF LAW 102 (rev. ed. 1948) (citing Benjamin Hoadley, Sermon Preached Before the King (1717)).
46. See JEROME FRANK, LAW AND THE MODERN MIND 47 (1930) (defining law as "[a]ctual specific decisions, and guess as to actual specific future decisions" ).
47. Id. at 104.
48. Id. at 105-06.
49. Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 843 (1935).
50. Duncan Kennedy, Form and Substance in Private Law Adjudication, 89 HARV. L. REV. 1685, 1776 (1976).
51. Id. at 1775.
52. Joseph Singer, The Player and the Cards: Nihilism and Legal Theory, 94 YALE L.J. 1, 10 (1984).
53. Id. at 11.
54. Id. at 23.
55. See, e.g., JOHN MORTIMER, Rumpole and the Judge's Elbow, in RUMPOLE'S LAST CASE AND OTHER STORIES 23 (1987).
56. FRANK, supra note 38, at 11-12
57. (citing Willard McEwen, What is Never in the Record, But Always in the Case, 8 ILL. L. REV. 594, 596 (1914)).
58. Cf. BMW of North America Inc. v. Gore, 517 U.S. 559 (1996).
59. See id. at 598 (Scalia, J., dissenting). For comment, see Jenny Miao Jiang, Whimsical Punishment: The Vice of Federal Intervention, Constitutionalization, and Substantive Due Process in Punitive Damages Law, 94 CAL. L. REV. 793 (2006);
60. A. Benjamin Spencer, Due Process and Punitive Damages: The Error of Federal Excessiveness Jurisprudence, 79 S. CAL. L. REV. 1085 (2006).
61. I am assuming these are not just "crisscrossing platitudes" (to use the language of Justice Scalia in BMW of North America Inc., 517 U.S. at 606).
62. DWORKIN, supra note 17 (especially at 238-75).
63. Id. at 238-58.
64. Id. at 235.
65. At the end of supra Part II.
66. Conversation with Ronald Dworkin, in New York (Fall 2006).
67. I think one's response to this point will be connected to one's response to Chaim Gans's point about predictability and injustice, discussed briefly in supra note 15.
68. Gerald Postema, "Protestant Interpretation" and Social Practices, 6 LAW & PHIL. 283 (1987).
69. IMMANUEL KANT, CRITIQUE OF JUDGMENT 135-38 (J.H. Bernard trans., Hafner Press 1951) (1790).
70. Even what I have called the literary model might be inappropriate in some cases. Postema cites Dworkin's own example of a chain-novel. postema, supra note 58, at 311.
71. See DWORKIN, supra note 17, at 206-15.
72. "Fairness" in the political sense defined m id. at 164-65.
73. Postema, supra note 58, at 296-97 (citations omited).
74. Id.
75. For "the burdens of judgment," see supra note 32 and accompanying text.
76. DWORKIN, supra note 17, at 239. See also id. at 412: "I have not devised an algorithm for the courtroom. No electronic magician could design from my arguments a computer program that would supply a verdict everyone would accept once the facts of the case and the text of all past statutes and judicial decisions were put at the computer's disposal."
77. Id. at 264.
78. To make the case tight (though fantastic), P has two cases at law: one case (as plaintiff) against S, before Heraclea, and one case (as defendant) against R, before Hercules. The problem is that in the case before Heraclea, P as defendant is being required to bear the burden of a standard that differs from the standard whose benefit he enjoys as plaintiff in the case bearing the same exact characteristics before Hercules.
79. See JOSEPH RAZ, Authority, Law and Morality, in ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 210, 215-20 (1994).
80. Postema, supra note 58, at 312.
81. Id.
82. Id. at 314.