Luck in the courts

Theoretical Inquiries in Law

Volumn 9, Issue 1, 2007, Pages

  Mautner, Menachem ^a  

^a TEL AVIV UNIVERSITY   (Israel)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 38149134557     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1174     Document Type: Review

References (75)

1. S.L. HURLEY, JUSTICE, LUCK, AND KNOWLEDGE 106-09 (2003);
2. THOMAS NAGEL, MORTAL QUESTIONS (1979).
3. But in many instances in which one out of a multiplicity of outcomes may materialize in our lives we do have a certain ability to cause one particular outcome to materialize even though the basic situation is one of lack of control. Whether we shall be healthy or ill is to a great extent beyond our control and thus a matter of luck. But we can still increase our chances of being healthy by not smoking, by eating a healthy diet, by watching our weight, by exercising, etc.
4. BEYOND THE CULTURAL TURN: NEW DIRECTIONS IN THE STUDY OF SOCIETY AND CULTURE (Victoria E. Bonnell & Lynn Hunt eds., 1999);
5. CULTURE AND ECONOMY AFTER THE CULTURAL TURN (Larry Ray & Andrew Sayer eds., 1999);
6. William Sewell Jr., The Concept(s) of Culture, in BEYOND THE CULTURAL TURN: NEW DIRECTIONS IN THE STUDY OF SOCIETY AND CULTURE, supra, at 35, 36-37;
7. Richard Shweder, Culture: Contemporary Views, in 5 INTERNATIONAL ENCYCLOPEDIA OF THE SOCIAL AND BEHAVIORAL SCIENCES 3151 (2001).
8. Several times in his writings Llewellyn speaks about the law that is created and applied in the courts in terms of "culture." See, e.g., KARL LLEWELLYN, THE CASE LAW SYSTEM IN AMERICA 113 (Paul Gerwirtz ed., 1989)
9. [hereinafter LLEWELLYN, THE CASE LAW SYSTEM];
10. KARL LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 49-50 (1960)
11. [hereinafter LLEWELLYN, THE COMMON LAW TRADITION];
12. Karl Llewellyn, Some Realism About Realism -Responding to Dean Pound, 4 HARV. L. REV. 1223, 1250 (1931).
13. See generally Hanoch Dagan, The Realist Conception of Law, 57 U. TORONTO L.J. 607 (2007).
14. LLEWELLYN, THE COMMON LAW TRADITION, supra note 4, at 19-61, 119, 154-57, 201, 203;
15. LLEWELLYN, THE CASE LAW SYSTEM, supra note 4, at 11, 66-76, 80.
16. LLEWELLYN, THE COMMON LAW TRADITION, supra note 4, at 26, 53, 154-57, 205, 213-35;
17. LLEWELLYN, THE CASE LAW SYSTEM, supra note 4, at 2, 76-77;
18. WILLIAM TWINING, KARL LLEWELLYN AND THE REALIST MOVEMENT 219 (1973).
19. Similar arguments were advanced by Felix Cohen in his seminal Transcendental Nonsense and the Functional Approach. Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 COLUM. L. REV. 809, 843-45 (1935).
20. For a critique of Llewellyn's stance on this point, see Charles Clark & David Trubek, The Creative Role of the Judge: Restraint and Freedom in the Common Law Tradition, 71 YALE L.J. 255 (1961).
21. Llewellyn himself was aware of this. His writings reveal a heroic effort to show that certainty prevails in the law but, beside it, an acknowledgement of the particular judge's contribution to the determination of the judicial, decision's contents, in a way that undermines the certainty of the law. See, e.g., LLEWELLYN, THE COMMON LAW TRADITION, supra note 4, at 24,49.
22. See also TWINING, supra note 7, at 219.
23. Paul Gewirtz, Editor's Introduction to LLEWELLYN, THE CASE LAW SYSTEM, supra note 4, at ix, xvii.
24. It is noteworthy that in many cases legal decisions are not binary. For instance, the amount of damages (including punitive damages) to which a plaintiff is entitled, the length of a sentence of a person convicted of a crime, the specific provisions of child custody and visitation rights arrangements -in all such cases, there are always more than, two possible outcomes, which, means that the element of luck in adjudication is increased.
25. THE CODE OF MAIMONIDES: THE BOOK OF JUDGES 17 (Abraham. M. Hershman trans., Yale Univ. Press 1949) (Laws of Sanhedrin 5:2)
26. [hereinafter MAIMONIDES, BOOKOF JUDGES]. I am grateful to Rabbi Yaakov Cohen, Rabbi Harel Gordin and Itamar Brenner for their assistance concerning Halakhic sources.
27. "The rules obtaining in capital cases obtain also in cases involving flogging and those involving banishment." Id. at 32 (Laws of Sanhedrin 11:4).
28. See also Mishnah, Sanhedrin 4:1 (capital, cases by twenty-three);
29. Babylonian Talmud, Sanhedrin 33b (the "capital cases" category includes flogging and banishment cases).
30. In re Rhone-Poulenc Rorer Inc., 51 F.3d 1293 (7th Cir. 1995); see also Warren F. Schwartz, Long Shot Class Actions (Berkeley Program in Law & Econ., Working Paper No. 22, 1999), available at http://repositories.cdlib.org/blewp/22.
31. Lewis A. Kornhauser & Lawrence G. Sager, Unpacking the Court, 96 YALE L.J. 82 (1986).
32. A major argument against combining the courts as suggested here is that it might reduce the extent to which opinions of the Supreme Court would serve as precedents and guidance for lower courts. If this were to happen, consistency in adjudication throughout the system would decrease, and the extent of luck in the system would increase.
33. MAMONIDES, BOOK OF JUDGES, supra note 11, at 30 (Laws of Sanhedrin 10:1).
34. Id. at 30 (Laws of Sanhedrin 10:6).
35. See supra note 12 and accompanying text.
36. Kornhauser & Sager, supra note 14.
37. For a view identical to the one presented here, see Cass R. Sunstein et al., Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation, 90 VA. L. REV. 301, 344 (2004).
38. FRANCIS BACON, Of Friendship, in THE ESSAYS 138 (John. Pitcher ed., 1985).
39. Sunstein et al., supra note 19, at 30.1, 339, 342.
40. Id. at 330, 332-33, 337, 344;
41. Richard L. Revesz, Environmental Regulation, Ideology, and the D.C. Circuit, 83 VA. L. REV. 1717, 1764 (1997);
42. see also Tracy Isaacs, Cultural Context and Moral Responsibility, 107 ETHICS 670 (1997);
43. Tracey George & Lee Epstein, On the Nature of Supreme Court Decision Making, 86 AM. POL. SCI. REV. 323 (1992); Nicola Gennaioli & Andrei Shleifer, Judicial. Fact Discretion (2006) (unpublished manuscript, on file with author).
44. In this sense, there is a crucial difference between judges and parliamentarians, who are not only permitted to consult with one another before reaching a decision, but are also allowed to horse trade.
45. See also Richard Posner, Judicial Behavior and Performance: An Economic Approach, 32 FLA. ST. U. L. REV. 1259 (2005).
46. The most troubling aspect of a rule forbidding consultation among judges is that it would severely diminish the ability of courts to serve as institutions of social change. To take one example, the decision in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), would have not been reached had it not been for the lengthy discussions among the Justices of the Supreme Court of the United States. This reconfirms a well-known juridical phenomenon, that a tension often exists between the interests of individual litigants and considerations having to do with society as a whole.
47. MAIMONIDES, BOOK OF JUDGES, supra note 11, at 26 (Laws of Sanhedrin 8:1).
48. See also Mishnah, Sanhedrin 4:1.
49. Edward P. Schwartz & Warren F. Schwartz, And So Say Some of Us. . . What to Do When Jurors Disagree, 9 S. CAL. INTERDISC. L.J. 429, 444-45 (2000).
50. Id. at 458.
51. In England, the requirement is that ten out of twelve jurors should agree to convict. In Australian states, the requirement is that between nine and twelve jurors should agree to convict. In Ireland and in Northern Ireland, ten out of eleven or twelve jurors should agree to convict. In South Africa, before the derogation of the jury system, the requirement was for seven out of nine jurors to agree to convict. In California, the state constitution was amended and a provision was stipulated requiring that ten out of twelve jurors should support conviction (except for capital, offenses). Other countries -Scotland, Europe, South American countries, Russia -rely on a simple majority. See id. at 444-45.
52. Marc Galanter, Why the "Haves" Come Out Ahead: Speculations on the Limits for Legal Change, 9 LAW & SOC'Y REV. 95 (1974).
53. For a series of articles dealing with Galanter's article, see 33 LAW & SOC'Y REV. 795 (1999).
54. See supra text accompanying note 13.
55. A.B. YEHOSHUA, A JOURNEY TO THE END OF THE MILLENNIUM 186 (1999).
56. Arbitration proceedings enjoy a clear advantage over legal proceedings in courts from several, additional, perspectives. Since arbitrators make their living from this occupation, they have a strong incentive to improve the quality of the "product" theyare trying to sell, namely, their reputation. This encourages arbitrators to behave fairly, professionally, and agreeably. The reverse is true for judges. Judges are monopolistic. The relationship between the way they fulfill their roles and the way they will be rewarded is quite loose. No wonder, then, that many of the ills affecting monopolistic situations are also evident in the way certain judges fulfill their roles. On this issue, see William Landes & Richard Posner, Adjudication as a Private Good, 8 J. LEGAL STUD. 235, 237, 238, 254-55 (1979).
57. Uri Weiss makes an additional, connection between law's indeterminacy and class. He argues that the poor are more risk-averse than the wealthy (and that women are more risk-averse than men). Therefore, the more the law is indeterminate, the more the poor (and women) will tend to enter unfavorable compromises within the context of their transactions with the wealthy (or respectively with men). Thus, law's indeterminacy transfers wealth from the poor to the wealthy (and from, women to men). Uri Weiss, The Regressive Effect of Law's Indeterminacy (2005) (unpublished manuscript, on file with author).
58. It is noteworthy that some people are so poor that they cannot afford any of the costs involved in litigation. So it might be the case that the relevant distinction for the present discussion is not between the wealthy and the poor but between the wealthy and the less wealthy.
59. See Landes & Posner, supra note 33, at 239-40.
60. See also David Heyd, Beyond Freedom and Dignity, 3 MISHPAT U-MIMSHAL 649, 658 (1996) (Hebrew) (author's translation): "Unquestionably, the inability to foresee the judge's ruling... is a constitutive element in the parties' readiness to accept it. The greater the judge's transparency, the more effectively this aim will be attained. The goddess of justice, her eyes covered, is blind not only to the identity of the litigants; she is also free from any loyalties to a world view that systematically and predictably shapes her interpretation of the law. In other words, litigants seek judges who will not only refrain from discriminating against them, personally but who will not be ideologically fixated against their case a priori.
61. At least three additional, considerations have to be taken into account in this context: (a) If judges of low instances are the pool from which most judges of Supreme Courts are selected, judges appointed to Supreme Courts will be people accustomed at writing technical, procedural, uncreative and non-innovative opinions. We would thus lose the prospect of Supreme Courts serving as engines for social change. (We would lose the Brown of the legal, world.) (b) There are two stages in the careers of low instance judges. In the first stage, a judge expects to be promoted to the higher instances. She therefore suppresses her personal, inclinations and does the utmost to write decisions that mimic potential, opinions of the higher courts in the system. In the second, stage, the judge realizes that her chances for promotion are slim. In this stage (arguably one of a much longer duration than the first stage), the judge openly expresses in her opinions her unique personal agenda and positions. Thus the problem of lower court judges writing conformist and characterless opinions is relevant only to some of the lower-court judges, namely those who are still at the early stages of their careers, (c) It might be the case that the way to assist the poor is not by maMng courts act in a manner resembling arbitration but rather by subsidizing arbitration for the poor (e.g., by providing them with vouchers for arbitration).
62. Stewart Macaulay, Non-Contractual Relations in Business: A Preliminary Study, 28 AM. SOC. REV. 45 (1963);
63. Hugh Beale & Tony Dugdale, Contracts Between Businessmen: Planning and the Use of Contractual Remedies, 2 BRIT. J.L. & SOC'Y 45 (1975);
64. Marc Galanter, Contract in Court; Or Almost Everything You May Or May Not Want to Know About Contract Litigation, 2001 WIS. L. REV. 577;
65. see also Marc Galanter, Reading the Landscape of Disputes: What We Know and Don't Know (and Think We Know) About Our Allegedly Contentious and Litigious Society, 31 UCLA L. REV. 4, 22 (1983)
66. [hereinafter Galanter, Reading the Landscape];
67. Marc Galanter, The Day After the Litigation Explosion, 46 MD. L. REV. 3 (1986).
68. William L.F. Felstiner & Austin Sarat, Lawyers and Legal Consciousness: Law Talk in the Divorce Lawyer's Office, 98 YALE L.J. 1663 (1989).
69. See Galanter, Reading the Landscape, supra note 39;
70. Marc Galanter, Worlds of Deals: Using Negotiation to Teach About Legal Process, 34 J. LEGAL EDUC. 268 (1984).
71. For a similar claim, concerning parties involved in divorce proceedings, seeRobert Mnookin & Lewis Kornhauser, Bargaining in the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950 (1979).
72. Lisa Bernstein, Opting Out of the Legal System: Extralegal Contractual Relations in the Diamond Industry, 21 J. LEGAL STUD. 115, 124 (1992).
73. LAURA KALMAN, LEGAL REALISM AT YALE 1927-1960, at 229 (1986);
74. JOHN HENRY SCHLEGEL, AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCES 2 (1995);
75. Joseph William Singer, Legal Realism Now, 76 CAL. L. REV. 465 (1988).